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Lord Howie of Troon: My Lords, that is right. During the course of that Bill we had a very substantial discussion about the meaning of "design".

In the context of architectural and design work, design would seem to mean architectural design work. The word "engineering" in the next paragraph does not actually mean engineering design. That eminent body, the Design Council, does not do much in the construction industry. It does a good deal for manufacturing and visual design. I suppose that the

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Minister will argue that engineering design is included here--and I am sure that I could not convince him that he was wrong--but I should like to see the Bill state that engineering design is included because it is different from architectural design or forms of visual design.

A distinction is made in paragraph (a) to carrying out work and in paragraph (b) to providing advice on building, engineering and one or two other aspects. A consulting engineer is one of the most important people as regards construction contracts in this part of the Bill. He provides not only advice, but he also does substantial work. Other people who provide advice are lawyers. Often it is good advice, but sometimes it is not. The advice which a consulting engineer gives to a client is only a small part of the work that he does. What possible distinction are the Government trying to make between architectural work and engineering advice? Do they understand that there is, in fact, no real distinction between them?

In the construction industry the work of the architect involves feasibility studies, giving advice, drawing up contracts, drawing up specifications, making designs, placing the contract, advising the client on whom to give the contract and then managing, although not always, the work as it progresses as a project manager. The consulting engineer does exactly the same thing. What are the Government trying to do by suggesting that a body of professional activity can be described as architectural work when a similar body of professional activity is described as advice? That does not make much sense. In so far as there is any sense in it, that has been concealed from me, regardless of the amount of interest I have taken in the progress of this Bill.

I could go on a little longer, but I think that that would be extremely unkind. With those few remarks, I beg to move.

Moved, That Amendment No. 65A, as an amendment to Commons Amendment No. 65, be agreed to.--(Lord Howie of Troon.)

Lord Williams of Elvel: My Lords, I thought that the Minister had moved Amendment No. 65. Are we now moving Amendment No. 65A?

Lord Lucas: Yes, my Lords.

Lord Williams of Elvel: My Lords, I am grateful to the Minister for his remarks about the inspiration from me and my noble friend, Lord Howie of Troon, particularly in respect of the Duchy of Cornwall and the Duchy of Lancaster. It seemed to me to be something that was obvious to anybody who read through the Bill, but I am still grateful to the noble Lord.

Lord Lucas: My Lords, Amendment No. 65A seeks to compress subsection (1A) into a single sentence. The noble Lord, Lord Howie of Troon, has shown us on many occasions during the passage of this Bill his ingenuity in suggesting drafting amendments, and we had a similar offering to this during Report. We did not see much need for it then, and we still do not. One of the main purposes of Amendment No. 65 is to make it

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quite certain that the design and consultancy work of both professionals and non-professionals would be included within the Bill, and this amendment would reinstate the word "professional" in such a way that it is not clear to which items it refers in the list that follows. This would merely cause confusion.

I can, I hope, give the noble Lord, Lord Howie of Troon, the comfort that he requires; that design work in relation to construction operations is covered and that there is no implication in any way in this Bill that we do not honour and love all civil engineers and engineers--indeed, engineers of all descriptions--who might possibly be involved in construction work. In the order of wording or the order of clauses, there is no intention in any way to suggest that they occupy a subsidiary role. Indeed, some of my best friends are engineers.

I do not think that the noble Lord could change anything in this Bill to the advantage of his profession. I do not think that there is anything in this wording which will not cover what they do properly and fully. I appreciate the noble Lord might wish to rephrase it in some way or another. To date the noble Lord has not come forward with the form of wording which convinces us that his is better than ours in this particular aspect.

I can give the noble Lord the comfort which he is seeking underneath; that what this Bill achieves in practice is what he would like to achieve if only he could find the wording to do it in another way.

Lord Howie of Troon: My Lords, it probably will achieve the result in practice because engineers are eminently practical people. Before I finish, I wonder whether the Minister could make some attempt, however feeble, to justify the distinction between work and advice as regards the two bodies of work or advice which are virtually identical.

Lord Lucas: My Lords, my advice is that it works as it is.

Lord Howie of Troon: My Lords, I have spent several months in this Chamber withdrawing amendments and I am happy to withdraw this amendment, too, as is my custom.

Amendment No. 65A, as an amendment to Commons Amendment No. 65, by leave, withdrawn.

On Question, Amendment No. 65 agreed to.

COMMONS AMENDMENTS

66

Clause 103, page 57, line 44, at end insert--


'An agreement relates to construction operations so far as it makes provision of any kind within subsection (1) or (1A).'.
67

Page 58, leave out lines 7 to 11.

Lord Lucas: My Lords, I beg to move Amendments Nos. 66 and 67.

Moved, that the House do agree with the Commons in their Amendments Nos. 66 and 67.--(Lord Lucas.)

On Question, Motion agreed to.

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COMMONS AMENDMENT

68

Clause 104, page 58, line 14, leave out from beginning to end of line 22 and insert--


'(a) construction, alteration, repair, maintenance, extension, demolition or dismantling of buildings or structures forming, or to form, part of the land (whether permanent or not);
(b) construction, alteration, repair, maintenance, extension, demolition or dismantling of any works forming, or to form, part of the land, including (without prejudice to the foregoing) walls, roadworks, power-lines, telecommunication apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipe-lines, reservoirs, water-mains, wells, sewers, industrial plant and installations for purposes of land drainage, coast protection or defence;'.

Lord Lucas: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 68. It may also be convenient to consider Amendments Nos. 69 to 73, 76 and 77, and I understand that the noble Lord, Lord Howie of Troon, will be moving Amendments Nos. 68A, 68B and 68C in this same group.

When we considered these matters at earlier stages of this Bill, I suspect that we spent at least as much time discussing the definition of construction operations as we did any other aspect of the Bill. The Government were grateful for this close and testing scrutiny, and noble Lords accepted a number of detailed amendments which we brought forward as a result.

In examining Amendments Nos. 68 to 73, the House will see a number of familiar issues. I would have hoped that Amendment No. 68 would find favour with the noble Lord, Lord Howie of Troon, who introduced an amendment in Committee which included maintenance as a construction operation. Following debate in another place, we accepted that the industry may find an express reference to maintenance useful in both paragraphs (a) and (b) of this subsection, and we have also taken the opportunity to add a reference to dismantling in paragraph (b).

Although the amendments in the name of the noble Lord, Lord Howie of Troon, show that the noble Lord is still in search of further refinements on this, I hope he may be persuaded that they are unnecessary.

Amendments Nos. 69 and 70 arose as a result of suggestions in another place that external cleaning relating to construction should be treated in the same way as internal cleaning, and that the maintenance and dismantling of scaffolding should be treated in the same way as its erection. I am sure that noble Lords will see the sense of this.

Amendment No. 71 is another old favourite, and arose out of protracted debate here in which the noble Lords, Lord Berkeley, Lord Howie of Troon, Lord Williams of Elvel, Lord Monkswell and my noble friend Lord Ullswater, all made valuable contributions. I doubt if it would be a good use of the House's time to summarise the full extent of that debate, but let me just remind the House that, at the end of our consideration we undertook to amend Clause 104(2)(c) to achieve two particular effects. The first of these was to ensure that the exclusion of work on plant and machinery on a process

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plant site should extend only to steelwork that was necessarily connected to it in some way, and that all other steelwork on such a site--in common with all other construction work--should be subject to the Bill's provisions. The second was to remove the word "construction" from the beginning of the paragraph and to replace it with something less likely to cause confusion. I hope the House will agree that both those ends have been served by Amendment No. 71.

I hope too that the noble Lord, Lord Williams of Elvel, will recall introducing an amendment in Committee to enable so-called supply-and-fit contracts to be included in their entirety. When the noble Lord, Lord Howie of Troon, introduced a similar amendment at Third Reading, I undertook to bring forward amendments to cover the whole of such contracts, and this would be the effect of Amendment No. 72. I have to say, however, that we have not been prepared to go any further than this, despite the fact that some have argued that so-called "bespoke" manufacture should be covered, even where the manufacturer is not involved in the installation. We continue to believe that it would be difficult to distinguish between products that were fabricated for one particular construction operation and those that were not, and that such a move would be a recipe for dispute and litigation.

As I promised the noble Lord, Lord Howie of Troon, at Third Reading we have brought forward--in Amendment No. 73--an amendment to remove the specific exemption for signwriting and work on signboards and advertisements. I believe the noble Lord, Lord Williams of Elvel, was anxious that we should do that.

Turning now to Amendment No. 76, there are two main changes here, and I will look at the issue most familiar to noble Lords first. Clause 105 excludes from Part II contracts with a residential occupier, and the House will recall that, in Committee, both the noble Lords, Lord Williams of Elvel and Lord Howie of Troon, proposed amendments in the search for the most effective way of achieving this. During the Bill's passage in another place there were still concerns that a client who was building an office block or a factory might include a dwelling so that the whole contract could be exempted from fair contract provisions. Although the Government felt that this was rather unlikely, since the exemption could only apply to an individual owner and not to a company, we were persuaded to bring forward an amendment to make sure that no such loophole existed.

Having looked at this carefully, we decided that the most equitable and generally satisfactory way of proceeding was to restrict the exemption to contracts whose primary purpose related to a dwelling for one of the parties. This would still allow the exemption to cover contracts on second homes, which I know was a concern of the noble Baroness, Lady Hamwee, at Report, and also to cover contracts where some of the work applied to a separate flat, a garage or an outhouse. It would not, however, allow rich individuals to avoid the Bill by adding penthouse flats to their office blocks.

However, the precise wording of Amendment No. 76 has also arisen in response to concerns expressed in the property industry that the Bill might, inadvertently,

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cover certain types of agreement where construction operations may be identified but where they are incidental to the main purpose. We have listened very carefully to representations in another place on this issue, since we are anxious to ensure that the Bill's payment and adjudication provisions apply only to contracts where it is appropriate for them to do so.

One of the main categories which we would like to exclude is that of agreements to undertake projects under the private finance initiative. I should emphasise, however, that there must be no question of such exemptions having the effect of excluding normal construction work. Anyone with a contract or subcontract for actual construction work on a PFI project, or one financed through some sort of loan or finance agreement, should still be covered by the Bill.

Obviously this is a complex and difficult area, and we are not yet in a position to propose firm amendments on this. Although we have only a limited number of exclusions in mind, we are anxious to get them absolutely right. In particular we are keen to avoid any possibility of exempting types of agreements which could be misappropriated for use further down the contractual chain. In other words, we do not want to create loopholes, and need to look at this carefully with representatives of all the interests concerned. Amendment No. 76 would give the Secretary of State power to exclude by order any description of construction agreement, and we intend to use this to bring forward appropriate exclusions along the lines I have indicated. These exclusions would then be debated by both Houses. I am sure that this is the right way forward, and I hope that--with the assurances I have given--noble Lords will feel able to agree to this amendment. Amendment No. 77, reflects the fact that, with Amendment No. 76 in place, there would be two order-making powers in Clause 105. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 68.--(Lord Lucas.)


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