§ 3.45 p.m.
§ Order of the Day for receiving the Report of the Bill read.
§ Moved, That the Report be now received.—(Lord Hilton of Upton.)
§ LORD SHEPHERD
My Lords, may I make a brief Statement? As the House will be aware, on July 20 my right honourable friend the Prime Minister announced a number of measures to deal with the economic situation, and in particular, so far as the Building Control Bill is concerned, that, when it became law, the Minister of Public Building and Works would make an Order reducing the cost limit above which a project is subject to control from £100,000 to £50,000.
Because of the economic situation it will be necessary for the Minister to defer a larger proportion of privately sponsored work than the 10 per cent. from which he has hitherto withheld approval. How much depends on the rate of application, the merits of projects and the development of the economic situation. Lowering the limit will give the Minister scope to defer less urgent smaller schemes instead of some larger schemes more in the public interest. It will increase the scope for adjusting the volume of privately sponsored work: the control will apply to about 1,000 projects costing £220 million in a year, compared with 500 projects costing about £180 million a year with the £100,000 limit.
When the noble Viscount, Lord Colville of Culross, anticipated this move in Committee he suggested that the Government would amend the Bill and introduce a lower limit with retrospective effect. This has not been done because the Government consider that the argument for retrospection is not overwhelming, as it was in July, 1965. Apart from this, to amend the Bill to replace the cost limit of£100,000 with a limit of £50,000 would suggest that the lower figure was regarded as the normal point of control—a permanent arrangement. The Bill set out the framework of a control which is considered fair and reasonable for the normal circumstances of an expanding economy when demand for building work 702 tends to outrun the capacity of the industry to meet it. In the present special circumstances of economic difficulty it is necessary to impose a tighter control, but this is an emergency measure. The reduction of the limit by Order makes it clear that this is not regarded as a permanent measure to reshape the control, but as a temporary measure to meet exceptional difficulties.
The intention to make an Order adds point to the reference that I made in my winding-up speech in the Second Reading debate to the possibility that the cost limit for licensing might be reduced to £50,000 after a building costing £95,000 had been started, quite properly, without a licence. The question was raised, should work on the building cease until a licence had been obtained? This is covered by the provision in Clause 8(3) which requires that Orders shall contain appropriate transitional provisions, and continues:An Order under this section whereby any work will cease to be exempt from control shall contain such provisions as appear to the Minister to be appropriate for preserving the exemption in relation to work done after the date on which the Order comes into force which was contracted for, or forms part of an operation begun before that date.Transitional arrangements similar to those in Clauses 4 and 7 would thus be included in any Order lowering the cost limit or bringing under control any work not previously controlled. Work on a project which had been begun or contracted for before the Order came into force would be exempt from the provisions of the Order. Thus no licence would be required to continue work on a project costing £95,000, started or contracted for before an order reducing the cost limit came into force.
The subject was discussed twice in Committee in another place, when Opposition Amendments to spell out the provision in more detail were withdrawn. On that occasion the Parliamentary Secretary said,No Minister would consider making an Order which did not make provision similar to that in Clauses 4 and 7. If he did, Parliament would not approve the order. … If no provision were made the order would probably be held ultra vires in any case.Later he confirmed that "the position is completely safeguarded". Clause 8(3) leaves the Minister a limited discretion 703 about the details of the transitional provisions because it is impossible to foresee all the circumstances which might arise in connection with the making of an Order. My Lords, I thought it right to make this Statement in case some uncertainty had arisen following the Prime Minister's Statement in another place, and to give the explanation why we are not amending the Bill at this stage.
§ 3.50 p.m.
§ LORD NEWTON
My Lords, I am sure that the whole House will be grateful to the noble Lord, Lord Shepherd, for having made this Statement. I am bound to say that I did not expect, and I doubt whether anyone else expected, that a Statement of this very considerable complexity would be made on the Motion that the Report be received. I presume it is in order or the noble Lord would not have done it, but I do not think any of us were prepared for it. Not only is it a Statement of considerable complexity, but it is also of considerable seriousness for the building industry, and therefore we shall have to study, and study fairly slowly, what the noble Lord has said when we read it in print to-morrow. Certainly I would not attempt to make any comments on the detail of it now. If any other Member of the House wishes to do so, that will be very interesting. I hope this is not going to be a precedent and that we are not going to get very complicated statements made without any warning on a very important matter.
§ LORD FRASER OF NORTH CAPE
My Lords, could the noble Lord say whether this Order applies to tunnels?
§ LORD SHEPHERD
My Lords, the Order I am referring to is the Order which the Prime Minister indicated in his Statement last week would be made after the passing of this Bill.
I must say to the noble Lord, Lord Newton, that I am rather surprised at his view. I felt it right to make this Statement at this stage because I have had some representations following the Prime Minister's Statement. There is a clear intention of making an Order immediately after the Bill has been passed by Parliament. Some thought we ought to amend the Bill at this stage. The purpose of my Statement was to explain why we are not amending the 704 Bill, and secondly, and I think the noble Lord, Lord Newton, will see—
§ LORD NEWTON
My Lords, if I may intervene, the noble Lord is apparently making a second speech, and as he was not the mover of the Motion I am wondering whether he is in order in addressing your Lordships twice.
§ LORD SHEPHERD
My Lords, I was rising to the question put to me by the noble Lord, Lord Fraser of North Cape. I was trying to be helpful. If I wish to put myself in order I ask for the leave of the House to reply. This I now do. As I said, I made this Statement to set some fears at rest and to deal with a number of queries about the proceedings on this Bill. I have only been helpful, and I am rather sorry about the strictures of the noble Lord, Lord Newton.
My Lords, the noble Lord has mentioned some figures about the number of extra contracts which will come within this Statement, which would not have been covered in the Bill. I did not catch them but the number was increased considerably. Can he say what addition to the staffing of the Department will be required to examine each of these projects with sufficient care to be able to decide whether or not to give a licence?
§ On Question, Motion agreed to.
§ Clause 1:
§ Prohibition of work except under licence
§ (11) Where a person contracts to carry out any work to which this Act applies, that person shall not be precluded from recovering payment for the work under the contract by reason only that it was carried out in contravention of this section or of the terms of a licence issued under this Act if he proves that he would have a defence under subsection (6) of this section if he were charged with an offence under this section in respect of that work.
§ 3.54 p.m.
LORD SHEPHERD moved, in subsection (11), to leave out all words after "proves that" and to insert:
at the time when the work was carried out he did not know, and could not reasonably have known, that it was being carried out in contravention of this section or, as the case may be, of the terms of the licence.
§ The noble Lord said: My Lords, Clause 1(2) lays down quite clearly that the responsibility for obtaining a licence and seeing that future work falls within that licence rests upon the person who will bear the cost of that building. Subsection (4) lays down the responsibility of those participating in the operation to see that the operation remains within the licence. Subsections (5) and (6) provide the defence particularly for the contractor; in other words, the contractor will not be guilty if he proves that at the time when the work was carried out he did not know, or could not reasonably have known, that there was any infringement of the licence. Subsection (11) is a further protection, particularly for the minor contractor. As I understand it, the basic principle of general law is that you cannot enforce an illegal contract, and therefore if the main contract is illegal it may well be that the minor contracts are equally illegal and therefore cannot be enforced against the main contractor.
§ I understand considerable difficulties arose in the past under the Defence Regulations. The Government took the view that some protection should be available to the innocent contractor. The noble Viscount, Lord Colville of Culross, questioned whether it was right in subsection (11) to allude to what might be hypothetical criminal proceedings as a defence in a civil court. This point has been carefully considered, and we take the view now that it would perhaps be best to remove the words as suggested in my Amendment and to include the proposed words which will lay down the defence of such a contractor. This would mean that he would have a case against (shall we say?) the main contractor or the owner of the building, if he himself was unaware or could not reasonably have known that there was an infringement. I think this will meet the point of the noble Viscount, and in those circumstances I beg to move.
Page 3, line 21, leave out from ("that") to end of line 23 and insert the said new words.—(Lord Shepherd.)
§ LORD NEWTON
My Lords, my noble friends Lord Colville of Culross and Lord Hastings asked me to express their apologies for their inability to be 706 here this afternoon. I am afraid that I was not here during the Committee stage of this Bill, but I have read the proceedings. I feel sure that if my noble friend Lord Colville of Culross were here he would express gratitude to the Government for meeting his legal point. Far be it from a layman such as myself to know whether it does or not in fact, but it certainly appears to do so, so I would thank the Government on my noble friend's behalf.
§ VISCOUNT STUART OF FINDHORN
My Lords, might I say, with some slight knowledge of the contracting business, that as the noble Lord is no doubt well aware, it is very difficult to alter the terms of a contract? Indeed, one might say that the contract thereby ceases to be a contract; it becomes a scrap of paper. I am sure the noble Lord will agree with me that it is something to think the Government are endeavouring to safeguard the contractor, be he large or small, who entered into a contract for perfectly legitimate reasons and on sound grounds but finds his contract is null and void or a mere scrap of paper.
§ On Question, Amendment agreed to.
§ Clause 2:
§ Work below cost limit
§ (6) for the purposes of subsections (2) and (3) of this section there shall be disregarded any work in respect of another building or other works or, as the case may be, any other work in respect of the same building or works if that work—
- (a) is exempt from control by virtue of section 3, 4, 5 or 6 of this Act; or
- (b) was carried out before 28th July 1965,or is exempt from control by virtue of section 7(1) of this Act, or would be so exempt if this Act had come into force on that date;
§ 3.59 p.m.
LORD SHEPHERD moved, in subsection (6), to leave out all words after "that work—" and to insert:
but, except as aforesaid, regard shall be had to all such work as is mentioned in the said subsections (2) and (3), including work carried out before the commencement of this Act and work which has been authorised by a licence issued under this Act or which is exempt from control by virtue of this section or section 7(4) of this Act.
§ The noble Lord said: My Lords, this Amendment replaces part of subsection (6) of Clause 2, the drafting of which was criticised by the noble Viscount, Lord Colville of Culross, at Committee stage. The object of the subsection is to ensure that the cost of work on projects which are or were of a kind exempted from control by Clauses 3, 4, 5 and 6—and this is what I would stress—or which had been begun or contracted for before July 28,1965, should be excluded from the aggregation requirements set out in subsections (2) and (3). Examination of the points raised in Committee revealed that the subsection was defective in that it failed to exclude from aggregation the cost of work done between July 28, 1965, and the enactment of the Bill on projects which qualify after enactment for exemption under Clauses 3, 4, 5 and 6. The subsection has been redrafted to cover this point and at the same time it makes its meaning clearer. If I may respond to the noble Lord, Lord Newton, after our early brush, may I express through him to the noble Viscount our gratitude for drawing our attention to this particular point. I beg to move.
Page 5, leave out lines 5 to 15 and insert the said new words.—(Lord Shepherd.)
My Lords, as this Bill has some complicated regulations that have to be administered by the Ministry, I wonder whether it would be in order now for me again to ask the noble Lord how many extra staff will be required to administer the Bill as it is written and as modified by the Statement of the Prime Minister?
§ LORD NEWTON
My Lords, I am obliged to the noble Lord, Lord Shep- 708 herd, for what he has said. I must confess that I have found this point extremely difficult, not only in the debate on the Committee stage but also, I am afraid, following the explanation, lucid though it was, that the noble Lord has just given us. At any rate, I am sure that my noble friend Lord Colville of Culross will be gratified to find that he was perfectly right, as it happens, to have pursued his point on the Committee stage. I am glad, too, that he has in that way been able to help make the Bill a better one than it was.
§ LORD SHEPHERD
My Lords, perhaps I may draw the attention of the noble Earl, Lord Jellicoe, to the attitude of the Government on this Bill, because on a previous occasion he referred to the frailty of undertakings given by Ministers. Speaking from some years of experience, I would say that Ministers do make an honest effort in regard to any undertaking that they give in this House. It is true that on some occasions we cannot agree, but we do make an honest effort. I would say to the noble Lord, Lord Newton, that I did not understand this subsection until my officials drew a diagram and a plan to indicate the matter. Only then, when I saw it drawn out on paper, did I understand what the subsection did. I do not intend to try to go through it again as I did on the Committee stage; but I am quite willing to explain it to the noble Lord, Lord Newton, afterwards. In regard to the noble Lord, Lord Hawke, I am afraid that I should need notice of his question. I doubt whether there will be an increase in staff owing to the temporary nature of the Order that will be made after the passing of this Bill.
My Lords, since the noble Lord has referred to me, and because I am anxious that there should be no misunderstanding, I should say that I did not refer to the frailty of Minister's undertakings; I referred to the frail words. I fear that in the last case to which the noble Lord referred the great and reasonable weight of our Amendment was too heavy for those frail words.
§ On Question, Amendment agreed to.709
§ Clause 7 [Work begun or contracted for before commencement of Act]:
§ (4) There shall be exempt from control under this Act any work which has been authorised in writing by the Minister before the commencement of this Act.
§ LORD SHEPHERD
My Lords, the noble Viscount, Lord Colville of Culross,on the Committee stage moved a rather long Amendment which, although the noble Viscount thought it explained the earlier attitude of the Government a little more clearly than was done by the Bill, I think would not have been helpful in relation to the Bill itself. Then the noble Lord, Lord Conesford, came to my assistance. I am glad to repeat my thanks to him. He suggested an alternative to the word "authorised". I have looked at it with the officials, and we think that in all the circumstances, particularly as we are already amending the Bill, we should meet the point of view expressed by the noble Lord, Lord Conesford. I am happy, therefore, to move this Amendment which replaces the word "authorised" with the word "approved."
Page 9, line 38, leave out ("authorised") and insert ("approved").—(Lord Shepherd.)
§ LORD CONESFORD
My Lords, I should like to thank the noble Lord for this Amendment. He said that I came to his assistance. I thought I was coming to the assistance of my noble friend Lord Colville of Culross. But that they both thought I was coming to their assistance may show that I was coming to the assistance of the House, which was perhaps a good thing. I thank the noble Lord for the Amendment that he suggests should be made.
§ LORD NEWTON
My Lords, I should like to congratulate my noble friend Lord Conesford, on having made such a happily successful suggestion. I am glad that his fine choice of language should once more have made an indelible impression upon the Government. I am even more glad that the word "authorised" has been taken out of the Bill. Quite obviously, it was a most unfortunate word to have been used in the first place.
§ VISCOUNT STUART OF FINDHORN
My Lords, may I just say, with all respect to my noble friend Lord Conesford, that 710 I am rather at a loss as to the difference between the two words. This merely reminds me of what an old American friend said:A grapefruit by any other name will squirt in your eye just the same.
§ LORD SHEPHERD
My Lords, I well recall my noble friend the Leader of the House, I think addressing the noble Marquess opposite, saying that he, my noble friend, could be happy only if he were making the noble Marquess happy. I hope that kindness and generosity from this side of the House will be recognised as a hallmark, and that it will help us in future legislation in perhaps more difficult circumstances. Perhaps I may express my gratitude to the noble Viscount, Lord Colville of Culross, to the noble Lord, Lord Hastings, and to his deputy on this occasion, the noble Lord, Lord Newton, for their assistance in the passage of this Bill.
§ On Question, Amendment agreed to.