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Lord Monkswell: It is impossible for me to comment on the contents of the scheme because I have not as yet seen or read it; indeed, we have already discussed that point. However, as my noble friend Lord Williams of Elvel alluded to the mechanism of inserting the scheme on the Marshalled List by way of an amendment which could then in turn be amended, perhaps I may make a suggestion. It relates to the facility that exists to circulate documentation to all Members of this Chamber--that is, not only those who have taken part in the Second Reading debate and who have, therefore, identified their interest in a particular subject, but all Members who receive the regular paper distribution.

In the future, when the Government have such a draft scheme that they wish to present to Parliament, although not necessarily to be written into legislation, would they consider putting down what one might describe as a shadow government amendment? That would then be available for Members of this Chamber to study with the understanding that, at a later stage of the proceedings on the Bill, it would effectively be deleted by an amendment.

Earl Ferrers: I am most grateful to the noble Lord, Lord Howie, for giving notice of his intention to discuss clause stand part, even though he said that he did not agree with it. He is perfectly right; indeed, he did say that he was considering tabling all the draft proposals as an amendment. I told him, in the safest language, that that could be described as bumping along the bottom. Although they may not have been the words that I used when I spoke to the noble Lord, that was in fact what I had in mind.

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It is quite difficult sometimes to assuage the desires of Members of this Chamber. We have this scheme in the Bill and if such a provision is in the Bill, then it is perfectly clear that we are going to make proposals. Noble Lords may ask what the proposals will be and whether they can have sight of them before the Committee stage. We then try to send out some draft proposals, but as soon as we do so some noble Lords seek to include them in amendments. I do not know how one can have an amendment relating to draft proposals when the Bill is concerned with making something into law. Nevertheless, I am glad that the noble Lord, Lord Howie of Troon, took my advice and did not table the proposals as an amendment.

The noble Lord, Lord Monkswell, asked if we could have a shadow government amendment. Quite frankly, I do not see how one could have such an amendment which would later be removed. In fact, we have a Bill which is likely to become an Act of Parliament. One does not put into such Acts proposals and provisions which will not ultimately form part of the legislative vehicle.

Perhaps I may reassure noble Lords who are worried about that. I believe that we sometimes lose sight of the main objective. The Government's intention throughout the whole of Part II of the Bill is to enable contracting parties--and, indeed, to encourage them--to include adequate adjudication and payment arrangements in their contracts. The reason for all the trouble previously was that people had not done so. I see that the noble Lord wishes to intervene. I give way.

Lord Monkswell: I am sorry to intervene at what is perhaps an inopportune moment. However, the Bill as published has an "Explanatory and Financial Memorandum" attached to it which seeks to explain its background, but which will not form part of the Act when it receives Royal Assent. We already have a mechanism and it may simply be a question of extending it.

Earl Ferrers: There are historical reasons for having financial memoranda. I do not think one could suggest that putting this kind of provision in a Bill would equate with a financial memorandum.

Lord Williams of Elvel: The point that I and my noble friend were making was that it was well within the procedures of this House not to put the draft into the Bill as a schedule but to put it down as a probing amendment and to amend the probing amendment in order to express our views on particular clauses in the draft scheme. For various reasons, my noble friend and I have decided not to adopt that procedure. That is not trying to put it into the Bill; it is trying to find a mechanism to enable this Committee to focus discussion on particular points in what we regard as a defective scheme.

Earl Ferrers: I entirely see that. What I was endeavouring to do--obviously unsuccessfully--was to congratulate the noble Lord, Lord Howie, and the noble Lord, Lord Williams of Elvel, on having taken what I consider the right course to move that the clause should not stand part of the Bill.

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The reason we wanted the clause in the Bill in the first place was that for many years the trouble has existed in the industry that people do not pay their bills. It is in everyone's interests that people should pay their bills and that others should receive payment for what they have done. We want them to include in their own contracts sufficient details about this. When there is a dispute between two parties who have not put that provision in their contract, there will be something statutory to fall back upon. It is for that reason that we have this clause in the Bill, and I think it is right.

The noble Lord, Lord Howie, said that it is a monster. That is not a very attractive word for a nice piece of drafting. I will certainly see that the matter is considered.

I am distressed. I understand that the paper is not in the Printed Paper Office and I can understand the frustration of the noble Lord, Lord Monkswell. It will be discussed throughout the industry and comments will be made on the draft proposals. It is upon the comments on the draft proposals that we shall provide the proposals, which will themselves be available for consultation. I believe it is important to do this because, if we do not have something in law to help when there is a dispute, people will not be paid. I think the noble Lord, Lord Howie, said that these proposals were more draconian than the terms that appeared in normal contracts. If that is the case, that in itself will encourage people to put similar or appropriate provisions in their own contracts. If the scheme achieves that, it will have achieved quite a lot.

I hope your Lordships will agree that this is an important clause. Even if your Lordships do not approve of all the details of the draft proposals--and we shall have to see whether other people approve of them--the principle of having a position as a matter of law when people have not included appropriate details in their own contracts is, I believe, a good thing and will encourage people to ensure that their contracts are correct. I hope your Lordships will agree that this should remain part of the Bill.

10.15 p.m.

Lord Howie of Troon: "Draconian" was not my word, although I quoted it. It was used by the noble Lord, Lord Lucas, and also by the noble Viscount, Lord Ullswater, earlier in our discussions on the Bill. They were certainly correct in doing that. I followed their extremely good example in describing the draft, as I understood it. I am a little confused because the noble Earl congratulated me at one moment--which I enjoyed, as usual--but a little earlier he said that I was bumping along the bottom. I did not quite know what that meant because it does not come within my usual vocabulary. However, I did not think it was intended to be totally complimentary.

There is no procedural reason of any kind whatsoever why the draft scheme should not have been put down as a schedule to the Bill to enable it to be fully discussed, and possibly amended. When we discussed this matter at

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the Ministry I gave the Minister examples of precedents where exactly this kind of thing had been done. There is nothing wrong with it at all. I know that he was a little alarmed about it because he did not want the scheme to be discussed or amended. I can see why that is the case because it barely existed. However, it is wrong that we should pass a Bill, an important part of which comprises a scheme which we cannot discuss and amend. That is wrong. I know that there are procedures which make it permissible, but that does not make it right. This is not the way to go about this matter.

The scheme should be included in the Bill as a schedule, preferably put down by the Government at a later stage, so that we can discuss it and amend it. As my noble friend Lord Williams said, if the scheme is introduced by means of regulation, we can discuss it right enough, and we can talk about it all night, but that is all we can do. We cannot amend it and we cannot change it, regardless of what advice we receive from the people to whom we talk. I do not think that Clause 111 should remain in the Bill. The Government have made a mistake and the clause should not stand part of the Bill.

Lord Berkeley: The noble Earl is quite right that many noble Lords said on Second Reading that we could not really discuss this Bill properly without having a copy of a draft scheme. We have been given the draft scheme, but what worries me is that--I believe it was in response to a question from the noble Baroness, Lady Hamwee--the Minister said that the consultation would be open until after the Bill receives Royal Assent. As this matter has already been discussed within the industry, I am fearful as regards what those in the industry will say to us who have been debating it, even before Report stage. I think they will crucify this scheme. We shall obtain a reaction from the industry and no doubt we shall have an opportunity to talk about that. But I wonder whether there is not a way of reconsidering this scheme, and perhaps having several rounds of consultation, if it is not possible to do what the noble Lord, Lord Howie, has suggested.


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