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Lord Livsey of Talgarth: I understand the Minister's position regarding non-devolved bodies, for many of the reasons that the noble Lord, Lord Rowlands, gave today and at our previous sitting. We understand that the Minister is bound by the Government of Wales Act 1998, but that should not preclude us from tabling amendments. He has given us one small crumb in the form of Amendment No. 36, for which we are extremely grateful. We understand the position that the Minister is in.
I want to make another point concerning the police authorities, which follows a point made by the noble Lord, Lord Roberts of Conwy. A council tax statement sometimes has a figure as high as 12 per cent that all council tax payers contribute to fund the police authority. Certainly that is the case in our part of the world with the Dyfed-Powys Police Authority. It is associated with money that comes, to some extent in one part of the funding of local authorities, directly from the Assembly. There is an issue of principle there, but I shall not press it at the moment. I simply make that point.
Lord Evans of Temple Guiting: Perhaps, very quickly, I may answer a point that was raised concerning the air ambulance service and the Welsh ambulance service. They are included in the schedule. There is no doubt about that.
On Question, amendment agreed to.
[Amendments Nos. 37 to 39 not moved.]
Schedule 2, as amended, agreed to.
Clause 4 [Power to amend Schedule 2]:
Lord Roberts of Llandudno moved Amendment No. 41:
The noble Lord said: I welcome the two government amendments in this group and am glad that they will insert the word "must" instead of "may". When we come to discuss the functions of the commissioner again, we hope that the Government will be equally ready to be more firm and say "shall" instead of "may", but that is for another time.
Amendment No. 41 would insert the words,
Of course, we cannot open up Offa's Dyke again, and I do not think that anyone wants to do so. But we must always remember the cross-border nature of services provided for older people—indeed, all people—in Wales and how much reliance is placed on hospitals. I come from north Wales, and I know that the Liverpool and Merseyside hospitals have been of tremendous help to us; we could not have managed without them.
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They are run by different hospital boards. Similarly, when older people go to a residential home in Cheshire or some such other place to be near their family, they come under a different social services department and county council. Therefore, in the amendment we ask for that to be borne in mind. We need to be able to keep the borders open. In Wales, people often come from, say, Birmingham to be nearer to their family. We do not close the border, and we ask that "fields related to Wales" should be included in the Bill. I beg to move.
Lord Evans of Temple Guiting: Amendments Nos. 41 and 64, which stand in the names of the noble Lords, Lord Livsey of Talgarth and Lord Roberts of Llandudno, as well as government Amendments Nos. 44 and 68, deal with making additions to Schedules 2 and 3. Clauses 4 and 7 provide that the Assembly may add a person to the lists in Schedule 2 (persons whose discharge of functions the commissioner may review) and Schedule 3 (persons whose arrangements the commissioner may review and monitor).
Amendments Nos. 41 and 64 would introduce confusion. They would enable the Assembly by order to add to Schedule 2 and Schedule 3 respectively any body that had functions,
That could include a number of UK-wide bodies operating in non-devolved fields. Neither we nor the Assembly would want such confusion introduced.
I am glad that the noble Lord, Lord Roberts of Llandudno, has welcomed Amendments Nos. 44 and 68, which will place on the Assembly a duty rather than a power to specify which functions of a person to be added to Schedule 2 and Schedule 3 are to be in the commissioner's remit. If the Assembly was not under such a duty and such details were not included in a relevant order, the resulting lack of clarity could create confusion among Schedule 2 and Schedule 3 persons, among older people and for the commissioner about the extent of his or her functions. Neither the Government nor the Assembly would want there to be any doubt that the functions of the commissioner are to be strictly related to devolved areas only.
4 pm
Lord Roberts of Llandudno: I would like the Minister to consider the matter again before Report and to recognise the interdependence between Wales and the adjoining counties. Today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Roberts of Llandudno moved Amendment No. 42:
The noble Lord said: I shall start by speaking briefly to Amendment No. 42. We are coming back to the argument about devolved and non-devolved matters. Sometime soon, we will have to examine the question because, as we noted last week, so many complaints from older people in Wales relate to non-devolved
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areas. For instance, we now have adult protection co-ordinators, who are appointed by county councils or borough councils. They are able to go into homes and to go anywhere at any time; there is no limit to what they can do. By limiting things to the devolved sphere, we are extracting the teeth of the commissioner. So much that is needed is not within his or her remit. With Amendment No. 42, we are asking the Government to think again.
With Amendment No. 43, we are asking, "Why do we need the Secretary of State's consent?". Surely even in devolved matters, the consent should be that of the National Assembly for Wales, not the Secretary of State. That is an unacceptable provision. A similar question arises with regard to the requirement that at least half of the person's expenditure is met by the Assembly.
We want the Government to consider the amendments. They are thoughtful amendments that would strengthen the role of the commissioner and widen his scope to include the real needs of the people whom we are trying to serve. I beg to move.
Lord Rowlands: I do not believe that the noble Lord, Lord Roberts, is quite right in saying that Clause 4(2)(d) is about non-devolved organisations. As I understand it, the provision could refer to a devolved organisation that performs functions that are entirely devolved to the Assembly, but if it receives less than half the money from the Assembly it cannot be included unless the Secretary of State consents. So the provision does not make a clear-cut distinction between devolved and non-devolved matters but is about the kind of organisations that can be brought within the commissioner's net, based on the financial contribution or expenditure that comes from the Assembly.
Where is the legislative pedigree for the subsection? Was that kind of definition used in the Children's Commissioner for Wales Bill? Can he think of any organisations that work in Wales, are funded by the Assembly in Wales but receive only a third of their payments from there because they raise the other two-thirds from other sources? Why should an organisation of that kind, which perhaps delivers services to elderly people, be left out of the commissioner's remit?
So I am asking my noble friend two questions: first, has subsection (2)(d) a legislative pedigree in legislation such as the Children's Commissioner for Wales Bill; and, secondly, if there are organisations that will be funded by less than a half by the Assembly but which fulfil devolved powers and deliver services to elderly people, why should they be left out? I see the back-up clause allowing the Secretary of State to exercise his consent to their inclusion; but it is rather a sledgehammer division at the strict 50 per cent mark suggested in subsection (2)(d).
Lord Roberts of Conwy: I shall speak to Amendment No. 66, which stands in my name and that of my noble friend Lord Luke. The amendment would remove subsection (3) from Clause 7, so removing the ability
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of the Secretary of State to consent to an order that amends the list in Schedule 3 of persons whose arrangements are subject to review and monitoring under Clause 5, if it involves a person who does not meet the requirement under subsection (2)(d) that,
"at least half of the person's expenditure on the discharge of its functions in relation to Wales is met directly from payments made by the Assembly".
One purpose behind the amendment is to question—it has already been questioned—whether it is right that the Secretary of State should intervene in the implementation of devolved powers. Then there is the question of whether the Assembly should have the option to allow the commissioner to look at a person when at least half the person's expenditure is not met directly by the Assembly. What kind of situation does the Minister envisage will arise that will occasion the use of that power and the reference from the Assembly to the Secretary of State? Other questions arise, such as what criteria the Assembly will have to consider before asking the Secretary of State to consent to its choice. Also, if it gets as far as the Secretary of State, on what criteria will he base his decision? Will the person in question be able to challenge the decision before either the Assembly and/or the Secretary of State and, if so, what will the process be and who will decide eventually? There is so much detail that is simply not discussed and that could be consequential on the subsection.
It has been a general criticism of the Bill, particularly from the Law Society, that so much detail has been left to regulation and that the Bill has been introduced before the final outcome of the consultative process. I understand that the Select Committee on the Constitution has grave concerns and that the Minister has sought to deal with them.
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