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Lord Roberts of Conwy: We welcome the Government's attempt to clarify the commissioner's powers in respect of cross-border issues with the amendments. We agree that the commissioner's remit should include the actions of the placing body.
Lord Livsey of Talgarth: I, too, welcome what the Minister has said, having had quite a bit of experience in cross-border situations. Some thought has gone into this; the views of the Welsh Affairs Committee have been respected. I am pleased about that because I know that some of its members were exercised by this point.
On Question, amendment agreed to.
Lord Evans of Temple Guiting moved Amendment No. 72:
On Question, amendment agreed to.
Lord Evans of Temple Guiting moved Amendments Nos. 74 to 75:
"(a) anything the effect of which is subject to review under section 3,"
Page 5, line 44, leave out "by or"
On Question, amendments agreed to.
Lord Evans of Temple Guiting moved Amendments Nos. 76 to 77:
On Question, amendments agreed to.
Lord Prys-Davies had given notice of his intention to move Amendment No. 78:
"( ) The Commissioner may, whether or not the case is funded or assisted by him, appear as amicus curiae to assist the court."
The noble Lord said: Since I tabled this amendment, I have received advice from a colleague learned in the law that a provision such as proposed in the amendment is unnecessary, as it is already the law that it should be possible for the commissioner to act as amicus curiae—with the leave of the court, of course. Therefore, I shall not move the amendment.
[Amendment No. 78 not moved.]
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Clause 8, as amended, agreed to.
Clause 9 [Examination of cases]:
Lord Prys-Davies moved Amendment No. 80:
Page 6, line 12, at end insert "and of policies which discriminate directly or indirectly against older people in Wales"
The noble Lord said: On this occasion, I am very happy that Amendments Nos. 80 and 81 be taken together. The reason that justifies examination of the matters covered by the two amendments is that they both raise issues that are in the public interest. I submit that it is important that the commissioner should have the authority to examine such complaints.
Since tabling the amendments, we have had the benefit of reading the helpful letter of 13 October that the Minister sent to the noble Lord, Lord Dahrendorf, the chairman of the Delegated Powers and Regulatory Reform Committee. On page 4, the letter explains:
"it is intended that an examination may be made by the Commissioner only where a representation is made to him by the older person concerned or by someone acting on their behalf".
In the next paragraph, it continues:
"It is proposed that the regulations will further restrict the circumstances in which the Commissioner can examine a case by specifying that the case must raise a question of principle which has a more general application or relevance to the rights or welfare of older people than in the particular case concerned".
So what emerges from the letter that my noble friend sent to the noble Lord, Lord Dahrendorf, is that the examination under Clause 9 will be subject to restrictions. It can be undertaken only if it is received from an older person who is concerned or by a person on his behalf and if the complaint raises an issue of general concern. It therefore seems that the regulations will take account of the situations referred to in Amendments Nos. 80 and 81, but only if the complaint is made by the older person concerned or by someone acting on his behalf.
That raises two or possibly three questions. First, why cannot the complaint be made by relative or friend, even though he cannot get the agreement of the older person concerned to make a complaint on his behalf?
Secondly, why cannot the complaint be made by a third party, who is not acting behalf of any particular old person but who is speaking on behalf of public interest? Indeed, he may not get the agreement of any older person to make a complaint.
Thirdly, if the words of Clause 9(1) remain unamended and contain no reference to the restrictions mentioned by my noble friend in his letter to the chairman of the Select Committee, is not the subsection somewhat misleading? I beg to move.
5.15 pm
Lord Roberts of Conwy: The noble Lord, Lord Prys-Davies, made a very powerful case, in his inimitably concise way—and there is certainly a case for the Government to answer here. I shall merely emphasise the public interest motive that might arise, and which
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does not necessarily require the support of an elderly person. Knowledge of the circumstances might trigger a public interest issue. So I hope that the Minister will be able to give us a strong reply.
Lord Livsey of Talgarth: The noble Lord, Lord Prys-Davies, gave a superb exposition on how to simplify the process of the law. He also put a very compassionate case with regard to advocacy of relatives in the situation that we are discussing, and has clearly thought through situations that frequently arise. I thank him for drawing the Committee's attention to the situation and trying to put matters right legally.
Lord Evans of Temple Guiting: Amendment No. 80, which stands in the name of my noble friend Lord Prys-Davies, would extend the Assembly's regulation-making power in Clause 9 to include regulations about the examination by the commissioner of policies that discriminate directly or indirectly against older people in Wales. I appreciate of course that what my noble friend wants to achieve by way of this amendment is a strong power for the commissioner to investigate and hold to account those bodies that may be discriminating against older people in how they arrive at and operate their policies. However, the combination of powers available to the commissioner would give him the tools to do the job. I add that I would expect that he would work together with the new Commission for Equality and Human Rights in Wales to tackle the direct and indirect discrimination that older people suffer.
Amendment No. 81 touches upon a similar matter to that raised by Amendment No. 48, which we debated earlier today. Although I indicated that I was willing further to consider the principle behind that amendment, I have reservations about seeking to introduce such a power into this part of the Bill, which is concerned with the examination of cases. In particular, I draw the Committee's attention to the fact that, for the purposes of an examination under Clause 9, the regulations may make provision for the commissioner to be able to require the provision of information and the attendance of witnesses. But the policies with which the amendment is concerned will be in the public domain, so a specific power to require the attendance of witnesses and the provision of information will not be required and could be seen as disproportionate.
My noble friend Lord Prys-Davies asked why the commissioner should take up only cases that raise a matter of principle. The Assembly's statement of policy intentions indicated that regulations would require the commissioner to examine a case,
"where the . . . representation raises a question of principle which has a more general application or relevance to the rights or welfare of older people than in the particular case concerned".
That is to try to ensure that the commissioner's workload is manageable and that he is able to focus on strategic cases that raise questions of wider relevance to older people. In our view, it would not be appropriate for the commissioner to examine the case
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of a person who did not want him to do so. He also has other powers to investigate wider issues, and Clauses 2 and 3, in particular, provide for that.
I agree with the noble Lord, Lord Roberts of Conwy, that what my noble friend said was very interesting, and I look forward to reading it. But, in the mean time, I ask him to withdraw his amendment.
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