Commissioner for Older People (Wales) Bill [Lords]

In the interests of Anglo-Welsh relations—and of any Wrexham supporters who might be in our midst—I too shall try to keep my comments fairly brief. I and my party support the principle behind this important Bill, and the model of the commissioner that is emerging is worth celebrating. Indeed, my party is calling for a language commissioner as well. There is a difference between an ombudsman and a commissioner. The ombudsman model was developed in Scandinavia around the beginning of the 20th century, and was designed to provide a complaints procedure in cases of maladministration. The commissioner will not be a quango; the post has no role in delivery and is therefore entirely independent of the Executive, whose policies are to be investigated. The commissioner model includes elements of the traditional ombudsman role, but it has a much wider remit to investigate general matters of public policy, and I am sure that the Assembly will apply the commissioner model to other policy areas in the future. It is great to see Wales engaging in such an important form of social innovation, and on a global scale. There are ombudsmen for older people in other jurisdictions, but the commissioner for older people in Wales will be the first post of its kind to be created in the world, and that is a credit to the Assembly Government. The proposal to establish a commissioner for older people has all-party support. It was a Labour party manifesto commitment—one of the few that the Labour Government in Cardiff Bay are on course to deliver. I want to echo the comments made by the hon. Member for Brecon and Radnorshire (Mr. Williams). By and large, my party supports the principle behind the Bill, although we have some concerns about the responsibility for non-devolved areas. Moreover, I bristled a little when the hon. Gentleman called for the commissioner to have teeth. In this context, that is slightly insensitive and might fall foul of anti-discrimination measures—[Laughter.]—but I think we got the point. We are revisiting a problem that arose in our debates on the children’s commissioner: in these post-devolutionary times, how do we ensure accountability when there is some blurring of the lines of responsibility? Given the still complex nature of the devolution settlement in Wales, we—let alone our constituents—often struggle to get our minds around such issues. The children’s commissioner does not have full powers to investigate where a child is placed in care through the courts, but has such powers in relation to a sibling who is in care voluntarily. That is the type of problem that will arise if the Bill’s provisions on non-devolved matters remain as they are. Clause 2(2) states that the powers of the commissioner"““are exercisable only in relation to fields in which the Assembly has functions””." That is clear. The commissioner will not have those powers in relation to anything that is non-devolved. There will be no power to promote awareness or provision, to encourage best practice or to keep under review any non-devolved matter. On non-devolved matters, the commissioner will have only the right to make representations, under subsection (3); there will be no power to investigate. That is the key issue. Indeed, clause 10(2) makes it clear that the commissioner will have no power to investigate individual complaints relating to non-devolved matters. Under clause 15(2) the commissioner will have no power to make reports on non-devolved matters. Another clause provides that the commissioner will have no power to initiate research in relation to non-devolved matters. Those are critical points. The commissioner will of course have the right—like the 3 million people of Wales—to make representations by writing a letter to the Secretary of State or the Minister, but the key issue is the basis for such representations. If the commissioner has no power to review a non-devolved policy area, no power to commission or conduct research on a non-devolved power relating to older people in Wales and no power to investigate individual complaints, on what basis will the representations be made? The Government rightly support the principle of evidence-based policy making. Without those statutory powers the commissioner for older people in Wales will be open to legal challenge. The commissioner will be acting ultra vires if he or she initiates research or undertakes a review of non-devolved policy. If the commissioner merely writes to the Secretary of State, the Secretary of State will have the perfect right to say, ““Well, what’s your proof?”” There will be no proof because the commissioner has no power to investigate. That is the key issue. Of course, as the Secretary of State said, representations can be made informally. I am sure that the door of the Wales Office is always open, even to members of my party from time to time, when we behave ourselves. The key issue is not the right to write a letter or to go to see the Secretary of State; it is whether the commissioner has the right to investigate and the power to make a report, which will give a formal basis for a structured discussion with Westminster Ministers. The commissioner will have the power to make representations to the Assembly, but there is no requirement for the Assembly to respond, nor for it to pass such representations to the Westminster Government and thus, at the end of that rather circumlocutory process, for the Westminster Government to respond at all. The key problem is that the Bill gives us no confidence about non-devolved matters, many of which have been mentioned. Some aspects of health and education have been devolved but others are non-devolved. Under the Bill, there is no clear process whereby the commissioner will be able to consider those matters comprehensively, which seriously weakens the Government’s stated intent for the measure. It weakens the independence of the commissioner. If he or she has no right to communicate directly with the Government but has to go via the Assembly Government, not only will there be questions about the commissioner’s independence from the Assembly Government, but the comprehensiveness of the commissioner’s role as champion and advocate will be weakened. Older people, like younger and middle-aged people in Wales, are not necessarily constitutional experts and might not understand the intricacies of the devolution settlement. They see services—whoever provides them—and they want the older people’s commissioner to take up their problems, regardless of whether Westminster or Cardiff Bay is accountable according to the settlement. That is the problem facing the Government under the Bill as currently drafted. Indeed, it is line with what the people of Wales are saying. One of the questions in the consultation exercise conducted by the National Assembly for Wales was:"““Do you agree that the new powers establishing the Commission should include the power to make representations directly to the UK Government on issues of importance to older people in Wales?””" One hundred and thirty-nine respondents agreed that the commissioner should have the formal power to make direct representations; only two disagreed. It is absolutely clear that stakeholder and representative organisations, including Age Concern and Help the Aged, support the principle that the commissioner be given formal powers on non-devolved matters. That was the position of the Welsh Assembly’s advisory group on setting up the older people’s commissioner and it was also taken by a majority of the Assembly’s Health and Social Services Committee, including its Labour members. There is wide consensus in Wales that the commissioner should have the power to initiate research and make reports on areas of non-devolved policy. That would be the basis for the fireside chats down the road at Gwydyr House. Finally, I want to touch on the definition of age, on which the shadow Secretary of State for Wales expounded. It is an important issue. In the consultation, the majority of the consultees came out in favour of the principle of flexibility and supported giving the commissioner the right to look at issues involving people aged 50-plus, although accepting the general definition of 60, which has not changed since the Bill was in draft form. There should be some flexibility, especially in employment-related matters where age discrimination is as serious, if not more serious, in Wales, due to our demographic. It is likely that the commissioner for older people in Wales will be up and running before the UK commission for equality and human rights, so I urge the Minister to look again at flexibility, possibly through regulation, in terms of age-related issues that affect people at 50 plus. That is the age for the starting-point of the Welsh Assembly Government’s welcome and innovative older people’s strategy, so there should be some flexibility under the Bill, too. Clearly, as has been mentioned, there are also health issues for the 50-plus cohort, particularly in relation to Alzheimer’s and other dementia-related diseases. I appeal to the Minister for flexibility in the definition of the age, if possible. May we please give the older people’s commissioner the power to investigate quite legitimately areas of policy that traverse non-devolved and devolved matters? Clearly, they will be of concern to older people in Wales.