Official Report (Hansard)

Session: 2011/2012

Date: 01 July 2009

Members present for all or part of the proceedings:

Mr Danny Kennedy (Chairperson) 
Ms Martina Anderson 
Mr Alex Attwood 
Mr Tom Elliott 
Mr Ian McCrea 
Mr Barry McElduff 
Mr Francie Molloy 
Mr Stephen Moutray 
Mr Jimmy Spratt

Witnesses:

Ms Martina Campbell ) 
Dr Gerry Mulligan ) Office of the First Minister and deputy first Minister 
Ms Orla Ward )

The Chairperson (Mr Kennedy):

We will now receive a briefing from departmental officials on the draft legislation for the commissioner for older people. A briefing paper, which includes a copy of the draft legislation, is in members’ packs. A report and recommendations paper and a policy position briefing paper from the Age Sector Platform have also been tabled.

Good afternoon, Dr Mulligan. I welcome you and your colleagues Orla Ward and Martina Campbell. The session will be recorded by Hansard. I invite you to make your presentation, following which the Committee will ask questions.

Dr Gerry Mulligan (Office of the First Minister and deputy First Minister):

As the meeting is being reported by Hansard, and as we are at an important stage in the development of the legislation, with your permission, I wish to take three or four minutes to introduce the Bill. Thank you for giving us the opportunity to address the Committee. My colleague Orla Ward is the senior legal adviser and Martina Campbell is head of the Bill team. We will take questions on the detail of the latest version of the draft Bill and the policy proposal documents.

I know that the Committee takes an active interest in the concerns and issues facing older people and that it is keen to see the legislation progress. I reassure the Committee that we have been working hard to develop the evidence base to support the establishment of a commissioner. During this session, we will give the Committee information on the development policy process, and we will provide some detail on the policy proposals in the draft Bill, the timescale involved, and the proposed consultation process. We welcome this opportunity to engage with the Committee and are happy to answer any questions that it has and to feed back to Ministers any comments that it wishes to make and to have considered.

It is important to stress how extensive the proposed powers are. Northern Ireland and Wales are unique in proposing powers for a commissioner for older people. Chairperson, I am conscious that the Committee’s time is limited. Are you content for me to proceed, or do you wish to ask questions at this stage?

The Chairperson:

That is a good idea. The Committee will ask questions.

Mr McElduff:

Can you explain the extent to which the draft legislation is modelled on that for the Commissioner for Children and Young People? That legislation is underpinned by the UN Convention on the Rights of the Child. Is there a similar instrument underpinning this legislation?

Ms Orla Ward (Office of the First Minister and deputy First Minister):

The proposed model is based fairly closely on the legislation for the Commissioner for Children and Young People, although there are some discrete differences. I hope that the Committee will forgive me for referring to the draft, as there is so much in it. For example, a couple of the proposed differences are to promote positive attitudes towards older people, to encourage participation in public life and to promote the provision of opportunities for older people and the elimination of discrimination against older people. The latter proposal comes from the Welsh model. We read the information that the Committee issued in June 2008 about the Welsh model, and we went on a study visit to learn from the Older People’s Commissioner for Wales.

We also continue to consider anything that is separate from a generic commissioner model, but which might be more pertinent or specific to older people. We considered some of the relevant authorities that might be more pertinent to older people and under which the commissioner might have specific and strong high court powers, for example, a pensions ombudsman.

There is, as you say, a UN Convention on the Rights of the Child, which member states are required to bear in mind in national law. There is no convention for older people. However, there is a set of UN principles, the status of which is slightly different from a convention, and it is recommended that states try to imbue those principles in their policies. We propose to enshrine those UN principles in the draft Bill and require a commissioner to have regard to those UN principles, as the Welsh Older People’s Commissioner must do, for example, when determining what is in the interests of older people and deciding when to act for them.

At international level, the core principles are: a focus on independence for older people; their participation in community life and policy formulation; care; self-fulfilment; and dignity.

Mr Spratt:

Thank you for your presentation. I glanced through the legislation, but I could not see any provision that would afford the commissioner a direct route to Government and Westminster Committees to discuss reserved or excepted matters, such as pensions. It is important that such a provision is included.

The commissioner would need to raise older people’s issues, particularly with Departments, with a degree of urgency. Quick access to Committees and Departments is necessary because the people affected may be in a vulnerable position, for example, in a home for older people, and life expectancy may be short.

Has the Department given any consideration to the budget that is likely to be available to the older people’s commissioner?

Ms Ward:

With regard to representations on reserved or excepted matters, it would be wrong not to draw the Committee’s attention to the proposal to give the commissioner, pending the devolution of justice, a wide array of general and specific powers on a range of reserved matters.

Excepted matters are slightly different constitutionally in relation to Assembly competence. It is proposed that the commissioner would have the power to make representations to any person on the interests of older people. Indeed, it is proposed that he or she would have a duty to advise the Secretary of State, the Executive Committee of the Assembly and any relevant authorities on matters concerning the interests of older people. An additional facet of the proposal is that he or she could commission and publish research.

Ms Martina Campbell (Office of the First Minister and deputy First Minister):

The Deloitte report that was published in May 2008 estimated set-up costs of £0·5 million and running costs of £1·5 million per annum. Those costs are comparable with those for the Older People’s Commissioner for Wales and the Northern Ireland Commissioner for Children and Young People (NICCY). We have secured the set-up costs and will bid for the running costs in the next comprehensive spending review (CSR). We cannot submit a bid before then.

Mr Elliott:

Thank you for your presentation. I notice a specific reference to the age of 60, but a caveat proposes that the commissioner may deal with a matter raised by anyone aged 50 or over, if the issue has a general significance for older people. Does that mean that people aged 60 or over can ask the commissioner to deal with an issue that is specific to them, whereas for someone who is aged between 50 and 60, the issue must be one that affects older people generally? Am I right about that? I am trying to get to the bottom of that, because it is an issue that could attract some controversy.

The Chairperson:

He may have a personal interest.

Mr Elliott:

Not yet, Chairperson, but I probably will at some stage.

The Chairperson:

I am within days of having such an interest.

Ms M Campbell:

Your assessment is correct, Mr Elliott. The legislation also suggests that the age can be revised by Order. There has been much debate about the age at which a person becomes “older”, and there is no universally accepted definition. The most commonly accepted United Nations cut-off age is 60, which is why we chose 60 or over as the main focus. However, we recognise that there are issues for people aged 50 and over that could have strategic relevance. That is why we have allowed that provision.

The Chairperson:

Is that clear?

Mr Elliott:

Yes, that is clear enough.

Mr Moutray:

Being ever mindful of the need for efficiencies in administration during the economic downturn, have you considered the sharing of services with NICCY or the Equality Commission or both?

Ms Campbell:

Yes, we have considered that. We are also mindful of the Committee’s comments on the Deloitte consultation of April last year.

Ms Anderson:

I have a question that may be specifically for Ms Ward. I am reading through the Bill, and I may be missing some information. Will the commission be given the legal powers to intervene and investigate where the existing regulatory body may have failed to investigate properly? I am mindful of the view — I must be careful, because it is only an allegation — that the Regulation and Quality Improvement Authority (RQIA) did not effectively monitor the standards of care in residential homes here. If something like that is brought to the attention of the commission, will it have, for example, the power to call for documents and witnesses, enter premises, and interview people if need be? If anyone was to obstruct the commissioner, could he or she be found guilty of an offence?

Ms Ward:

I reiterate that the proposals are subject to consultation, but we propose that the commissioner would have the powers that you are suggesting. That would include the power for the commissioner to undertake a formal investigation of an authority, such as RQIA and many others, which are set out in the Commissioner for Complaints (Northern Ireland) Order 1996, the Ombudsman (Northern Ireland) Order 1996, and in the draft Bill itself.

The commission would have the discretion to decide to undertake such an investigation for the purpose of taking or assisting a complaint or of reviewing how, for example, the advocacy, complaint-making, whistle-blowing or inspection regime in an authority such as the RQIA had worked. As a corollary of that, the proposed commissioner would have strong High Court powers to call for persons, papers and evidence, as well as having powers of entry and inspection. If someone were to attempt to obstruct the commissioner, those powers would be backed up with the offence of contempt. The Court Service would have to approve that, because it is an offence, but that is a technical point.

Mr Molloy:

Thank you for the presentation. On the issue of the Age Sector Platform and consultation, the Age Sector’s advertisement drew attention to the comment made by the First Minister on the Programme for Government about the need to have:

“a sufficiently strong power-base in line with the expressed wish of the sector”. [Official Report, Vol 36, No 4, p171, col 1].

What steps are being taken to ensure that the sector is being consulted, and its views on the legislation are taken on board?

Dr Mulligan:

Generally, we have attempted to ensure that the sector is involved and engaged at every stage in the process. The pre-consultation stage has now completed and we are moving to a formal consultation. That is the general intention; perhaps Martina could be more specific on that point.

Ms M Campbell:

We have had a number of meetings with representatives of the sector and the Older People’s Advocate as the policy development has progressed. We have advised them of today’s Committee meeting; I have not looked behind me, but I think that they are present. Hopefully, we will meet with them over the coming days to talk through the proposals. I emphasise again that they are only proposals at this stage and are still open to change. No decisions will be made until after the consultation.

We have developed a consultation strategy, which has been shared with the Older People’s Advocate and will be shared with the sector. The focus will be on coming up with different ways of consulting with older people, and the sector has employed someone to deal specifically with the consultation. Therefore, we will take the sector’s views on how we can get the best out of the consultation and on how we can get to the heart of what older people want and think.

Mr Molloy:

What restrictions on the powers do the legislative team envisage? What is the rationale for restrictions?

Dr Mulligan:

I am not sure what you are asking. Are you asking whether the commissioner will have the powers to intervene and investigate?

Mr Molloy:

How far will the commissioner be able to go? What role will he or she play, and how powerful will he or she be? Will he or she have the teeth to ensure that there is change?

Dr Mulligan:

The legislation’s emphasis has been on providing extensive powers rather than focusing on restrictions. The emphasis has been on what the commissioner will be able to do rather than on what he or she will not be able to do.

Ms Ward:

I endorse what Gerry said about the focus. Even though there is no UN convention, we are proposing to give the commissioner a wide range of powers, including powers with specific teeth, such as the power to conduct a formal investigation, with High Court powers as a corollary of that.

In response to the more difficult part of your question, any body that is set up to deal with a regulatory or scrutiny body is lining up against others, such as the Ombudsman, the Equality Commission or the Human Rights Commission, with whom we have all had pre-consultation meetings. We have drawn on the Committee’s comments of last April to try to minimise overlap, duplication or confusion of roles. There are provisions in the legislation that seek to avoid excessive overlap or confusion. There are also a couple of provisions to avoid internal conflict between the commissioner’s powers. For example, it would not be right for the commissioner to investigate a case if he or she was involved in legal proceedings. The focus is on giving a positive range of powers.

Mr Molloy:

It is important to ensure that there are no areas that the commissioner could not develop if there was no one else with that responsibility. Sometimes, in Government circles, you find that if you do not have that responsibility, you cannot take any action. Therefore, it is important that all areas of the legislative process are covered by someone.

The Chairperson:

I think that it is important that the older people’s commissioner has teeth.

Mr Attwood:

Under non-devolved areas, your report states:

“The Commissioner shall have wide powers, extending into non-devolved areas except in some circumstances”.

Therefore, we are going to have a body in the North that is funded by the North, which presumably tables its report to the Northern Ireland Assembly, but it will potentially report on non-devolved matters.

Ms Ward:

In a similar way to some other bodies, including the Children’s Commissioner, there are functions, duties and powers over some reserved bodies, for example, in the criminal justice field, which will perhaps be devolved in the future. I hope that that clarifies the first point.

Mr Attwood:

Many of those devolved matters have not been transferred yet.

Ms Ward:

Excepted matters, such as tax and immigration, are different, because there are different provisions under the Northern Ireland Act 1998. Therefore, no excepted matters are covered in that regard, because our Assembly cannot deal with those unless they are ancillary to, or incidental to, transferred or reserved matters. However, that does not mean that the commissioner could not talk about, or speak out on, issues such as pensions.

Mr Attwood:

The powers only extend to areas that may be devolved but are not yet devolved. It seems that the height of the power of sanction is disclosure and exposure. The commissioner will not be able to impose any further penalties or remedies, unless he or she goes through the courts, in which case the High Court may propose remedies.

Dr Mulligan:

If those powers were exercised forcibly, they would carry significant weight. If, as a result of an investigation, the commissioner were to publish specific recommendations, those would, presumably, carry significant weight with the body responsible.

Ms Ward:

As Mr Attwood suggested, after a formal investigation, a report would be published to name and shame. The commissioner would make recommendations, giving notice to the authority to comply, and would seek a statement of any action taken. The commission would maintain a register of such notices for public inspection. Given that it is proposed that those powers will be built upon High Court powers to call for evidence, to enter and inspect and to establish an offence of obstruction and contempt, the powers are strong and are comparable with those of other bodies. However, that is one of many areas that are under active consideration by Ministers.

Mr Attwood:

I may well come back on that point, because I know that that is under consideration. The commissioner will be able to take legal action, but he or she will not be able to fund individuals to take legal action.

Ms Ward:

I am sorry to have to correct you on that. The proposal is that the commissioner would be able to provide assistance in legal proceedings.

Mr Attwood:

In addition to being able to take legal action and to intervene in a court case, the commissioner will be able to fund legal action?

Dr Mulligan:

That is certainly the intent of the policy. I hope that the legislation reflects that.

Ms Ward:

That is normal practice.

Mr Spratt:

If the commissioner were to be called by a whistleblower to commence a formal investigation, criminal offences might become apparent at an early stage of that investigation. In such a situation, the commissioner should be removed from the investigation and the Police Service should be called in to investigate. The investigation may open up a can of worms involving dozens of people, as, sadly, has been demonstrated in some cases that have taken place in Northern Ireland. Does the draft legislation make provision for the Police Service to replace the commissioner at an early stage in an investigation? If the commissioner were to continue to investigate, he or she might mess up a potential criminal investigation.

Dr Mulligan:

Although such provision is not specified in the draft Bill, I suspect that there is an obligation on any citizen who is aware of a criminal offence to report it to the police. At that stage, I assume that it would be left to the discretion of the commissioner to decide whether his or her investigation would conflict with the police investigation.

Mr Spratt:

The legislation should make provision that, if the Police Service were to take over the investigation, the commissioner should immediately withdraw from it. It is not good to have a body such as the commission dealing with an issue that becomes a criminal investigation. The commissioner should immediately stop his or her investigation. Given the problems that have previously emerged with some ombudsmen and commissioners, such a clause would be a good idea.

Dr Mulligan:

That is an interesting point, and we shall follow up on it. Thank you for raising it.

The Chairperson:

Thank you. That completes the questions.

Dr Mulligan:

I want to say something by way of conclusion. In relation to timescale and process, the Department aims to launch the public consultation in the autumn. In order to meet that milestone, the Department intends to provide the Committee with a full consultation pack on the proposals during the summer recess. That will allow time for the Committee to consider the package at its first meeting in September and, subsequently, for the Executive to consider it in late September 2009. That will allow the Department to launch the consultation in October 2009.

Following the consultation, all responses will be carefully considered before Minsters make decisions about the scale and scope of the commission’s powers and duties. Once Ministers have made those decisions, the intention is that the Bill will be introduced in 2010, and there will be opportunities to make amendments to the Bill as it completes its passage through the Assembly.

The Chairperson:

Dr Mulligan, I have already bought ‘Angels and Demons,’ which I was hoping to read over the summer, on any beach that I might arrive at. [Laughter.] However, am I to understand that the Department will be providing the Committee with something else to read?

Dr Mulligan:

Yes indeed, Chairperson.

The Chairperson:

OK. Thank you very much for appearing before the Committee today.

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