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Lord Lucas: My Lords, as I said in response to the noble Lord, Lord Williams of Elvel, who moved the same amendment on Report, this is a matter on which we shall reflect. I am sure your Lordships will appreciate that I can say no more about this particular matter at present.

Lord Howie of Troon: My Lords, I wonder whether I am grateful to the Minister. At least he did not say no--the noble Baroness rightly says that he did not say yes either--but on the other hand, he did not say "no, but maybe". I am a little disappointed. He said that he has to reflect and I agree with him. The waters in which we splash are deep and important.

However, the Minister has had a whole week to reflect about the matter and he will have another week before the Bill reaches Second Reading in another place. Will he perhaps be able to accelerate his reflection, so that he might come to some conclusion, if not before Second Reading in another place then at least before Third Reading. He nods his head and I am grateful for that. On that nod, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 [Meaning of "construction operations"]:

Lord Howie of Troon moved Amendment No. 6:

Page 58, line 17, leave out from ("land") to end of line 22.

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The noble Lord said: My Lords, this is not an amendment which we have discussed before and is one on which I merely ask for assurances or reassurance. It arises from the several quite lengthy and detailed debates that we had on the definition of "construction operations" at various stages of the Bill. The Government stuck to their last, although we had offered a variety of improvements or clarifications, and the definition remains more or less as it started out.

However, in the course of the debate at Report stage, the Minister described my proposals as "ingenious additions" to this Part of the Bill. I do not think that they were ingenious. They were straightforward, clear and simple--simple-minded even. The Government did not accept them. But in his reply the Minister made what I thought was a quite significant remark. He said:

    "The 'construction' in Clause 103(i)(b) [now Clause 104] is a generality, which is,

    'works forming, or to form, part of the land'".--[Official Report, 22/4/96; col. 921.]
That is true. That is a generality. The Minister went on to say that the rest of that paragraph was "a selection of illustrations".

It struck me that, if that were true, what I had sought to do in my "ingenious" amendments had been to add to that number of illustrations--no more than that. As the Minister rightly said, there were many illustrations which could be included. The question struck me later in the debate--I mentioned it in passing: if those were no more than illustrations, why were they needed at all?

The Bill mentions "buildings or structures", which seems to me to be a perfectly adequate description of what construction means. I am fortified in my belief by the thought that in the Environment Bill which was passed more than a year ago, it was thought sufficient to refer in that Bill merely to "buildings and structures" without any illustrations of what buildings and structures might be. The draftsman of that Bill probably thought that most people would recognise a building or structure if it fell on them or even if it stood up on site, so that illustrations were not necessary.

The question then occurred to me that, if the illustrations could not be extended in the way I had suggested or, even further than that, in the manner in which the Minister hypothetically suggested, although he did not obviously want that, then why have them in at all? I believe that in this Bill the generality is a sufficient definition of those elements of construction to which the Bill should apply. I beg to move.

Lord Berkeley: My Lords, I support the amendment of the noble Lord, Lord Howie of Troon. I too was reading col. 921 of the Report stage of the Bill and my attention was drawn to the frequent use of the word "land". I began to ask myself what that word means in this context.

If one compares subsections (1)(a) and (1)(b) of Clause 104, one sees that (a) refers to "buildings or structures" and (b) refers to "land". There are not as many definitions under (a), as the noble Lord, Lord Howie of Troon, said, as there are under (b).

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Paragraphs (c), (d), (e) and (f) are really incidentals; that is, they are doing things to what has already been described.

Do we assume that anything that is not a building or a structure is land? The definition appears to include things that happen in the sea, so perhaps parts of the sea are "land" under this definition. It certainly includes tunnels and I suppose tunnels go through land as well as under the sea. Is "land" landscape? Is it land compared with water? Is it our "green and pleasant land" that is subject to any planning restrictions that may come along?

The word "land" should perhaps be changed. Some other generic term might avoid the need for providing six more lines of examples. After re-reading the provision many times I came to the conclusion that it is an odd use of the word "land" in connection with the construction industry.

Lord Lucas: My Lords, regarding the point raised by the noble Lord, Lord Berkeley, the term,

    "forming ... part of the land",
is a term of art and a well-established phrase. It is therefore something we feel comfortable in relying upon for what we are describing.

In relation to Amendment No. 6, the noble Lord, Lord Howie, is probably right; that is, we do not need to give examples. However, we find them helpful. They elucidate on the face of the Bill this rather obscure phrase,

    "forming ... part of the land".
Someone coming fresh to reading the Bill will understand what we are talking about without having to resort to Hansard. We find it a helpful part of the Bill, even though it is not strictly necessary. We would like to keep it in the Bill. I hope therefore that the noble Lord, will withdraw his amendment.

Lord Howie of Troon: My Lords, once again I am divided between pleasure at the fact that the Minister appears to agree that the part of the Bill I suggest should be left out is not necessary and dismay that he still does not accept the amendment.

When I tabled my ingenious additions to this part of the Bill, the Minister said that they were not necessary. There seems to be a philosophical difference between us. Those things that the Minister thinks are not necessary but are helpful he proposes should be kept in while those things that I think are not necessary but are helpful he considers should be left out. The reason may be that he took the paragraph from the income tax Act 1988 and does not want to tamper with it in case the Chancellor of the Exchequer becomes irritated, or something of that nature.

I raised this matter, not in the hope of persuading the Minister--though he clearly believes I am right--to remove the lines from the Bill; I hoped to impress upon him the dissatisfaction felt not only in this Chamber but throughout the industry with the definition as it stands in relation to construction contracts. I hope that by harping on unreasonably about this matter, even into the Third Reading of the Bill, we will keep the

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Government's mind open so that in another place they may turn their minds to the many arguments about definitions put before them and come up with a definition of "construction" acceptable not only to us or our colleagues in another place but to the industry as a whole. With those, I hope, not unduly churlish remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howie of Troon moved Amendment No. 7:

Page 58, line 43, leave out (", or construction of underground works,").

The noble Lord said: My Lords, your Lordships will be pleased to hear that I intend to be brief. We debated this matter at an earlier stage and the comments of the noble Lord, Lord Ezra, were conclusive and incontrovertible. I felt that my remarks added, if not lustre, at least strength to the remarks of the noble Lord. The Minister undertook to think about the amendment, so perhaps he will disclose to us the results of his thinking. I beg to move.

Lord Lucas: My Lords, we listened very carefully to the noble Lord, Lord Howie of Troon, and also to the noble Lord, Lord Ezra. On Report I explained that our main problem lay in distinguishing between mining and civil engineering operations underground. I also pointed out that no one had been able to suggest how that might be done satisfactorily for the purposes of legislation. Nevertheless, I also said that the Government were not unsympathetic to the thrust of the amendment and that we were prepared to reflect upon it. We are still doing so. This is a difficult area and I am sure the noble Lord appreciates the need to get things right.

In the last few days we have undertaken to introduce a number of adjustments and all this requires a great deal of work. My officials have been hard pressed--not least by the energetic and tenacious way that the noble Lord has pressed his case. I hope at least that the Government have demonstrated an open mind and a readiness to look seriously at everything suggested in this House. However, that is as far as I can go in offering assurance to the noble Lord, Lord Howie. I hope that it is sufficient to enable him to withdraw his amendment.

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