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Lord Roberts of Conwy moved Amendment No. 1:

The noble Lord said: My Lords, in speaking to Amendment No. 1 I shall speak also to Amendment No. 2. These amendments are intended to draw attention to the difference between this Bill and the children's commissioner Bill, which includes details of the term of appointment and reappointment. In short, such matters were decided in primary legislation in that case.

The provisions for appointment in the Bill differ from those in the children's Act in that this Bill reserves details of appointment and possible reappointment to the National Assembly and secondary legislation in the form of regulations. I recognise the arguments for this change of legislative approach: if the Assembly pays for the office of commissioner, as it will, it should make the appointment and settle its terms and conditions; the commissioner is the Assembly's employee, is responsible to the Assembly; and so on. But there are drawbacks of which we should be aware. As I mentioned in Committee, in a public consultation on this matter, the advisory group to the National Assembly found that 59 per cent of respondents opted for a four-year term of appointment and a similar term for reappointment, and I dare say that further consultation and discussion is likely before the final figure is decided upon.

The whole process seems rather long drawn out and almost time wasting when the issue could be settled here and now in primary legislation, rather than being prolonged, as appears to be inevitable. Secondly, there is a hint in the Bill of what has become known as "creeping devolution". Your Lordships should be aware of the nature of that beast, especially in view of the devolution Bill that lies ahead of us later this Session. In the White Paper, Better Governance for Wales, we find a commitment to what is referred to as "framework legislation". Indeed, the style of appointment of this commissioner for the elderly seems to be typical of that kind of legislation. The change should not pass unnoticed. I do not intend to make a mountain out of a molehill, but I wonder whether the Minister can give us some indication of how long the appointment is to last and whether there will be a set term for reappointment. I beg to move.

Lord Evans of Temple Guiting: My Lords, I shall speak to Amendment No. 1 before turning to Amendment No. 2. During the discussion of this
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matter in Committee, I explained that the term "appointment" would also encompass the possibility of reappointment. I can assure noble Lords that the Assembly intends to make provision about this matter in regulations. Moreover, I refer noble Lords to the statement of policy intentions submitted by the Assembly in which it states its intention to specify an initial term of four years, renewable once, in line with the views expressed in the public consultation.

Amendment No. 2 places in the Bill a requirement that the initial term of office of the commissioner is a period of five years. I acknowledge the instant clarification on this matter that such an amendment would bring. However, in our view, the appropriate term of office for the commissioner is quite properly something for the Assembly to determine. Giving the Assembly its own regulation-making power for the appointment of the commissioner will allow it to cater for any necessary changes to ensure that secondary legislation continues to fit closely the needs of older people in Wales. I hope that with this reassurance the noble Lord will feel able to withdraw the amendment.

Lord Roberts of Conwy: My Lords, I am grateful to the Minister for his comments on these two amendments. I said at the outset that my prime purpose in tabling the amendments was to draw attention to the differences in the appointment of the commissioner for the elderly and the commissioner for children in Wales. The Minister has given us all the details that we require about the likely term of the appointment and reappointment. Of course, it begs the question of why these details have not been put into the Bill at primary stage and why we have to await secondary legislation before these matters are incorporated. Nevertheless, we have now had an explanation and the Government's intention is clear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 2 [General Functions]:

Lord Roberts of Llandudno moved Amendment No. 3:

The noble Lord said: My Lords, we welcome government Amendments Nos. 4 and 5, which arose out of discussion in Grand Committee. The Government have certainly listened and "good" has been replaced by "best". However, "may" has not been replaced by "shall". If a commissioner may do something, that means it is at his discretion and he has a let out. If he "shall", "will" or "must" do something, that is far more positive and it is an affirmation of something that he is obliged to do. Some say that one cannot oblige the commissioner or put a duty on him, but we believe that we can. The appointment is so important and it means so much to many people. If someone "may" do something it means that perhaps or possibly he will do something. An elderly person may think that he or she "may" achieve redress or "may"
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have a problem sorted out, but that is not what the Government are saying. They are sticking firmly to the word "may" and will not give us "must" or "shall". I suggest that the Government should consider this and say, "Yes, we agree that it must be far more positive, far more affirmative and that 'shall' or 'must' will replace 'may'". I beg to move.

Lord Prys-Davies: My Lords, the problem with a discretionary function is that, in practice, it can mean anything or nothing. If the commissioner decides not to exercise a discretionary function, it seems to me that he cannot be challenged on that. Perhaps the Minister will explain why in Clause 2 the general functions of the commissioner cannot be expressed in terms of duties which he must discharge rather than powers that he may exercise.

Lord Evans of Temple Guiting: My Lords, I shall speak to Amendment No. 3 before turning to the two government amendments. Amendment No. 3 seeks to replace the commissioner's power to undertake his general functions in Clause 2(1) with a duty. That would remove the discretion of the commissioner in relation to the exercise of his powers. That discretion was included in the Bill to ensure that the commissioner would be able to discharge his functions as he or she considers most appropriate and in accordance with his or her priorities.

The view of the Assembly—I stress the Assembly—shared strongly by the Government, is that it is essential to secure statutory independence for the commissioner so that he should have the freedom to choose when, in what instances, and how he will exercise his functions. I also remind noble Lords that the commissioner will have to operate within a fixed annual budget, negotiated by him with the Assembly, and we do not want to introduce, as this amendment would, any constraints on his freedom to decide how to match his resources with the priorities that he has identified. Moreover, the amendment would also increase the potential for any individual or body to institute judicial review proceedings against the commissioner if there is disagreement with the priorities that the commissioner has set.

Let me assure the House that the Government and the Assembly expect the commissioner to undertake all these general functions, and to do so in a proactive and vigorous manner to maximum effect. Listing them expressly in this clause makes it clear that there is an expectation that the commissioner will use these powers on an on-going basis in the interests of older people. That expectation is not an idle one. It has sanctions at its back. If there were to be a persistent, significant and perverse failure by the commissioner to exercise his powers in Clause 2, it is the view of the Assembly, shared by the Government, that that would amount to a basis for his removal on grounds of misbehaviour.

I turn next to government Amendment No. 4. In Grand Committee, noble Lords expressed clearly their wish to see the term "safeguarding" included explicitly within the description of the commissioner's general
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functions at Clause 2. While the Government still contend that the Bill as drafted already gives the commissioner the power to take specific action to ensure that the interests of older people are safeguarded, we have listened to the views of your Lordships that this should be made explicit. I have therefore tabled government Amendment No. 4, which will achieve that clarity and will further ensure that there is consistency in the terminology used across Clauses 2, 3 and 5.

Similarly, in Grand Committee the noble Lord, Lord Roberts of Conwy, proposed an amendment that sought to enable the commissioner to use his general functions to encourage best practice, rather than good practice, in the treatment of older people in Wales. I am most grateful to the noble Lord, Lord Roberts of Conwy, as well as to my noble friend Lord Prys-Davies for the arguments they put forward. In particular, the discussion drew our attention to the fact that some difference in standards might be inferred from the use of "good practice" in Clause 2 and "best practice" in Clause 11.

In the interests of consistency we have consequently tabled government Amendment No. 5 to ensure that the commissioner encourages "best practice" in the treatment of older people in Wales. I think all of us would recognise that "best practice" is a subjective concept in the context of a general matter, such as the overall treatment of older people in Wales. But we believe that the commissioner is well placed to exercise his judgment about what it constitutes, just as he will when issuing "best practice guidance" under his Clause 11 powers.

With these amendments, I hope that the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno, will feel able to withdraw their amendment.

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