Commissioner for Older People (Wales) Bill [HL]

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 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.