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Lord Howie of Troon: My Lords, before the Minister sits down, will he satisfy me--I am not difficult to persuade, as he knows--why it is that the English and Welsh--estimable as those people are--should have a look at the scheme before it passes through this House while the Scots--of course we know that they are less estimable in some respects--have to wait until Royal Assent? That is an argument which cannot stand. Surely the Scots can have a peek at it.

Lord Lucas: My Lords, the intention is that the scheme should have the same effects north and south of the Border, but because the law is different the way in which the provisions work will have to be different. We have not yet reached our conclusions as to what they should be north of the Border so as to make the proposal one that is suitable for publication.

Lord Monkswell: My Lords, before the Minister sits down, perhaps he can clarify something. From what he said, I inferred that the amendment was right and required. The Minister said that we had a new Arbitration Bill--it is a Bill rather than an Act, as my noble friend pointed out--and when it became an Act the Government would modify it and put it into the scheme.

The reasoning behind the amendment of the noble Baroness, Lady Hamwee, was that it would be wrong for a Minister to be able to amend primary legislation without recourse to Parliament. That is exactly what the Government have suggested that they will do. I hope that I have not got hold of the wrong end of the stick. If that is what the Minister is talking about it seems to be a travesty of the whole parliamentary procedure.

Lord Lucas: My Lords, I believe that I said in my closing remarks in reply to the noble Baroness, Lady Hamwee, that we were very happy to consider the possibility of making the whole scheme subject to affirmative resolution so that that particular point should be covered.

Baroness Hamwee: My Lords, I am grateful for what the Minister has just said. Before I seek leave to withdraw the amendment, I raise one point which I ask the Minister to note, not to respond to at this stage. I ask that he lets me and other noble Lords know before Third Reading whether that is to be proposed by the

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Government. Otherwise, there will be a number of amendments that I and no doubt other noble Lords will wish to table at Third Reading.

It has crossed my mind more than once during this afternoon and evening that, given that the Government clearly have a number of major amendments in mind, it is a pity that this part of the Report stage could not have been deferred somewhat so that noble Lords could have seen those amendments. I believe that we might have moved faster and more constructively had the Government allowed that flexibility in their timetabling. Having noted that the Minister has heard my request, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 [Dates for payment]:

Baroness Hamwee moved Amendment No. 156:


Page 61, line 30, leave out ("adequate") and insert ("effective").

The noble Baroness said: My Lords, Amendment No. 156 is another short probing amendment. Clause 108 (1)(a) provides that every construction contract shall provide an adequate mechanism for determining payments. I seek to understand a little better what is implied by the term "adequate". The clause could simply have said that every construction contract should provide a mechanism for determining payments. The term "adequate" must mean something. To me, it suggests a degree of quality, but I am not sure about what other than to ensure that the payments can be determined. I suggest the use of the word "effective", not as a synonym, but as a more accurate term for what is intended. I do not seek necessarily to redraft but rather to understand. I beg to move.

Lord Lucas: My Lords, I am afraid that once again the Government have considered the matter and like things the way they are. To us, an adequate mechanism is one that is proportionate and appropriate to enable the payments mentioned in Clause 108 (1)(a) to be determined; in other words, it is a mechanism that works. In contrast, the effectiveness of a mechanism brings in the concept of quality. Does it work well? Is it the best that there can be? It is a matter that is subjective rather than objective, which may vary according to the preferences and perceptions of the individuals involved. In this context, the word "adequate" is already used in building regulations and therefore has some kind of history. We feel that it is the right word for these circumstances. However, I thank the noble Baroness for raising the question. The Government are glad to have had a chance to look at the matter again.

Baroness Hamwee: My Lords, perhaps its use elsewhere is the most telling point. The argument used by the noble Lord against the adoption of the word "effective" is the one that I would use against the word "adequate". My further concern is that to provide for an adequate mechanism implies a retrospective assessment of that mechanism. However, having sounded off about it, it is perhaps appropriate to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 109 [Notice of intention to withhold payment]:

Lord Lucas moved Amendment No. 157:


Page 62, line 10, leave out ("award") and insert ("decision").

The noble Lord said: My Lords, in moving Amendment No. 157 I shall speak also to Amendment No. 158. These amendments follow similar ones moved by the noble Lord, Lord Howie of Troon, in Committee, which we undertook to consider. Having done so, we remain unconvinced that the word "award" is wholly specific to the process of arbitration. However, we know that the noble Lord feels strongly on this matter. We are also aware that there are those in the construction industry who share his views. Rather than let the Bill arouse hostility in this way, we propose to remove references to an adjudicator's award and use instead the word "decision". Of course, the terminology in the scheme for construction contracts will be made consistent with this. I beg to move.

Lord Howie of Troon: My Lords, I thank the noble Lord for acceding so graciously to my request--I will not say demand because that is too severe--at Committee stage. The noble Lord said that I felt strongly about the matter. I am too mild a man to feel strongly about anything. The reason for using the word "decision" rather than "award" was that it was right to do so. It was not a matter of strong feeling but a matter of lowland Scots pedantry: we like to get it right rather than wrong. I am grateful to the noble Lord for accepting this small but proper amendment to the Bill. We are here to improve the Bill, and we have done it in a small way.

Lord Lucas: My Lords, I thank the noble Lord for his remarks.

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 158:


Page 62, line 12, leave out ("award") and insert ("decision").

On Question, amendment agreed to.

Clause 112 [The Scheme for Construction Contracts]:

Lord Howie of Troon moved Amendment No. 159:


Page 63, line 25, leave out ("The Minister shall by regulations make a") and insert ("Schedule (Scheme for Construction Contracts) sets out the").

The noble Lord said: My Lords, I rise with a certain amount of alarm. My Amendment No. 159 is a trifling matter. It is a paving amendment. It is coupled with a substantial number of other amendments, some of which are in themselves quite big. At least two of them involve completely new schedules to the Bill. I am a little hesitant because in this House we like speeches to be relatively brief, provided they cover the points at issue in the amendments to which they speak. I cannot see how I can be brief in the normal sense of that word in the face of this grouping of amendments. I see that the noble Viscount, Lord Ullswater, has his head in his hands. I apologise to him. I hope he will understand that this is not my fault. I was not asked to agree, and did not agree, to this enormous grouping. It has the unfortunate effect that I will not be able to give each

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amendment its due weight. That worries me a bit. I should like each to be considered fully. I will try to do my best to consider them as fully as is appropriate within decent brevity. If my notion of brevity does not coincide with that of other noble Lords, I hope that no one will be so churlish as to propose the Motion that I be no longer heard.

9 p.m.

Lord Elton: My Lords, in an interpolation, perhaps I may ask the noble Lord whether it is right that a substantial number of his amendments are amendments to an amendment tabled by the noble Lord, Lord Williams of Elvel. Would it not be easier for the noble Lord to explain his amendments if we heard first what the noble Lord, Lord Williams, proposes to move which the noble Lord wished to amend? Therefore, might it not be easier if, now that the noble Lord, Lord Howie, has introduced the subject, the noble Lord, Lord Williams, explained his amendments and then the noble Lord can come back? It is a humble suggestion and if it is confusing I withdraw it.


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