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Lord Howie of Troon: My Lords, it is an interesting suggestion but it comes up against a procedural problem. It is that we are at the Report stage and I am permitted to speak only once, which might take some time. The noble Lord's suggestion is extremely sensible and if there were some way in which the leave of the House could be gained I should not be opposed to such a procedure. Indeed, it would be of great help.
Lord Williams of Elvel: My Lords, I admit guilt in all this. When my noble friend and I tabled amendments I agreed from this Front Bench to the groupings. I thought that it was appropriate that we should have the debate on one--admittedly long--section because the amendments relate to the same business. I apologise to my noble friend if he was not consulted about the groupings and I hope that on some future occasion I can make it up to him. However, from this Front Bench I am happy with the groupings and moving on to Report stage requirements.
Lord Howie of Troon: My Lords, in view of that I must babble on for quite some time. I do not blame my noble friend in any way for his grouping. It has an intellectual consistency but it causes me a difficulty in that I may have to speak for longer than I normally speak. If any noble Lords wish to go away they are perfectly entitled to do so.
As regards Amendment No. 159, I need say no more about it than that it is a paving amendment. Amendment No. 161 leaves out subsections (2) and (3), which I do not believe are necessary. They deal with the scheme as regards the Minister's actions and relate to my Amendment No. 160, which we discussed earlier out of order. We have more or less dealt with that, therefore.
Amendment No. 162 has nothing to do with me and I wish to say nothing about it, apart from the fact that it is excellent in its construction. Amendment No. 178 goes to the heart of the matter. As the noble Lord, Lord Elton, said, many of my amendments are amendments to Amendment No. 178. Perhaps I may say
Perhaps I may say in general terms what is wrong with the scheme. The Government have a strategy which in its aim is wholly correct and admirable. It is that construction contracts should be proper and should ensure that people are paid and so forth. We discussed that matter on Second Reading. The peculiar aspect of the scheme is that that is not its intention. The intention of the scheme is to frighten people into taking up contracts which they do not feel inclined to take up. The Minister and his colleagues admitted that in Committee when they described the scheme as being more draconian than the provisions of Clause 105, which is now Clause 106. That was not my word, it was theirs.
The scheme is more draconian. It has about it all the hallmarks of something that Michael Howard might have conceived. It is a boot camp solution. The Government are trying to frighten people into taking up contracts because if they do not the Government will be obliged to adopt a scheme which is more draconian and will put the frighteners on them. I find that odd. If the Government want people to adopt contracts under the provisions of Clause 106, that is fine and I do not dissent from that in any way. Indeed, I support it, except in detail here and there. If the Government want people to take up the provisions of Clause 106 why do they not make them compulsory or make the scheme the same as the provisions in Clause 106?
I am a great man for an easy life and so is the Minister, I am sure. At this stage of the Government's life they should be in favour of an easy life too and put forward propositions which people will find agreeable and acceptable. The provisions of Clause 106 are generally acceptable to those in the industry, with some minor dissensions, but the scheme is not. It is absurdly controversial and for no good reason whatever.
Those are general comments and I do not wish to detain the House too long. No, that is not true; I do wish to detain the House for quite a long time but I cannot do so because it would be unfair at this time of night.
I turn to Amendment No. 182, which provides that Clauses 20 to 28 of the scheme are needed only if adjudication is actually arbitration. Most noble Lords are agreed that adjudication is not arbitration. Therefore, those clauses should go because they are not needed.
I could go on. I do not wish to detain the House. I shall not go through these matters in any detail because it would be quite wrong for me to do so. The essence of an adjudication is that it should be quick. It should remove a source of disharmony from the contractual arrangements, a disharmony which could affect adversely the conduct of the contract and the successful conclusion of the project. As the Minister knows and
Perhaps I may say a few words now about Amendment No. 191. My reason for tabling it is that it removes all references to the Arbitration Bill. I do that quite clearly in order to ensure that nobody confuses adjudication with arbitration. We had a short exchange about that earlier when we discussed the scheme which would apply to Scotland. We had not realised that there was such a thing, but there is.
Since the Arbitration Bill does not apply to Scotland, it is inconceivable that its provisions could apply to the Scottish scheme. If it did, that would be an act of imperialism far beyond Edward I, let alone the current Government. If it cannot apply there, why should it be imposed in England? Why should the Arbitration Bill be imposed upon a process of adjudication since we are all agreed that adjudication and arbitration are not the same? I have probably said enough at this stage although I have a substantial body of notes and I could go on for some time. However, that would be quite unfair.
I turn now to my Amendment No. 197. That introduces into the Bill as a new schedule a satinised version of the conciliation procedures of the Institution of Civil Engineers. I say that because those procedures are part of the sixth edition of the ICE Standard Conditions of Contract which are acceptable to and used throughout the construction industry. It includes that process of conciliation.
Conciliation is not exactly the same as adjudication but it is near to it. The idea of conciliation is to produce agreement so that the parties involved in a dispute agree to a resolution, as the noble Baroness, Lady Hamwee, wanted. Of course, that is an extremely sensible way to proceed. I have adjusted the conciliation process to make it an adjudication process with which the parties do not need to agree but where the adjudicator gives a decision which may be subject later to arbitration or resolution through the courts. The conciliation procedure was first introduced in 1988, which is quite some time ago. It has been in use since that time and has proved its worth in that period. On the basis of experience, the procedure was revised in 1994 and could no doubt readily be revised again, perhaps on the basis of the satinised version that I have tabled.
I have dealt with this rather large group of amendments quite inadequately. I say that because each one of them deserves much more attention and much more detailed consideration than I have been able to give. However, I am well aware of the fact that the House does not want to listen to me all night. Indeed, noble Lords have been most patient. I am most grateful. I beg to move.
Independently of my noble friend, I exercised the threat which I made in Committee to table the Government's scheme so as to allow amendments to be made to it. However, it is late in the evening and we have had a long day. I do not intend to go through all the pages of notes that I have with me as regards what is defective in the Government's scheme. But if noble Lords opposite wish me to, I will go through them.
Suffice it to say that we believe that the scheme produced by the Government is, first, unpopular; and, secondly, it is full of problems, starting from the procedure in appointing adjudicators, going on to the commencement of proceedings, and then to a stay of legal proceedings, failure of appointment procedure, and so on; indeed, every single provision in the Government's scheme--as set out in the schedule that I have proposed as an amendment--is wrong and has some particularly offensive matters in it. My noble friend is right to say that the Government's scheme as presently produced is more in the nature of arbitration than of adjudication. That is the fundamental problem that we have in the matter.
Noble Lords have tabled amendments to the schedule that I propose. Again, I do not intend to go through them in detail. However, suffice it to say that I substantively agree with the amendments that my noble friend Lord Howie has tabled to that schedule. If by any curious event the House accepted my amendment/schedule I would be most disappointed. I say that because the point of tabling it was to demonstrate to the Government that we do not think that that is the right way to proceed and that the industry does not think it is the right way to proceed. Therefore, I would accept all amendments to the schedule and I would also accept the Government saying, "We do not like this being put into a schedule to the Bill and, therefore, we are not going to agree to it". Indeed, I would vote in the Government Lobby if that were to be the case.
I turn now to my noble friend's schedule, with which I have a great deal of sympathy. There are two principles involved. First, the scheme should be in the form of a schedule to the Bill. It is not enough to put it in the form of regulations, even though the noble Lord may say that it will be the subject of the affirmative resolution procedure. As we all know, the affirmative resolution procedure does not allow us to amend. If we cannot amend, then there is no point in affirmative resolution: it is either yes or no. In this House we have what is sometimes called a "convention" but which at other times is called a "self-denying ordinance" not to vote for or against statutory instruments under the affirmative
Secondly, what I believe should happen is that the Government should take my noble friend's schedule away--perhaps together with the amendments of my noble friend Lord Berkeley--and make sure that it is produced as a proper schedule to the Bill before it is enacted, as nothing else will do. The consequence of doing that would be to reassure the industry--we are all trying to reassure the industry--that the Government will not change the scheme for England and Wales and that they are not going to produce provisions which are more dependent on the Arbitration Bill, as it now is, rather than on adjudication. We should all be quite clear what will happen if the parties do not accept adjudication in the first place. When the Scottish scheme finally appears, I would expect that to be another schedule to the Bill.
It is late and there is still much business to get through. That is our position. We believe that there should be a schedule to the Bill and we believe that the schedule spoken to by my noble friend is probably better than anything else, subject to the amendments of my noble friend Lord Berkeley who no doubt will speak to them. Simple affirmative resolution on regulation is not enough. The Government must do much better. They may not do much better in this House but they must do much better in another place.
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