§ Lord Hoyle rose to move, That the draft order laid before the House on 15th January be approved [20th Report from the Joint Committee].
§ The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. The purpose of this order is to bring under the controls of the Misuse of Drugs Act 1971 six previously uncontrolled substances—namely, aminorex, brotizolam, etryptamine, mesocarb, methcathinone and zipeprol.
§ The order is necessary to enable the United Kingdom to comply with a decision made by the United Nations Commission on Narcotic Drugs to control the six substances under the 1971 UN Convention on Psychotropic Substances.
§ Four of the substances—aminorex, brotizolam, mesocarb and zipeprol—have medicinal uses. They are used as medicines in other countries but are not currently licensed for use as medicines in the United Kingdom. The other two substances—etryptamine and methcathinone—have no recognised medicinal uses.
§ All six substances have abuse liability and are potentially attractive to drug misusers. There have been a few reports of the misuse of methcathinone in the United Kingdom, but no evidence that any of the other five substances is currently misused here.
§ Before an order of this kind is brought before Parliament for approval, the Misuse of Drugs Act 1971 requires that the Advisory Council on the Misuse of Drugs, the expert body which advises the Government on drugs issues, is consulted. The council has been consulted and has advised on the measure.
§ The order proposes that etryptamine be added to the list of controlled drugs specified as Class A in Schedule 2 to the 1971 Act; that methcathinone and zipeprol be added to the list of controlled drugs specified as Class B; and that aminorex, brotizolam and mesocarb be added to the list of substances specified as Class C.
§ Subject to the order being approved, the Government would then intend to lay before the House amendment regulations to bring the six drugs under the control of the Misuse of Drugs Regulations 1985. These regulations will provide the regime of control over them. Here again, the Advisory Council on the Misuse of Drugs has given its advice, which the Government have followed. The changes would, as your Lordships will have seen from the draft order, take effect from 1st May.
§ The amendment regulations to which I have just referred will also increase the regime of control on the drug flunitrazepam, or Rohypnol, the drug which has 874 been referred to in the press as the "date rape drug". I am glad to be able to tell the House that, notwithstanding that appellation, the Forensic Science Service has found very little evidence of its use in that way. It is already controlled under the Misuse of Drugs Act and as a result is not covered in the modification order which is before the House.
§ The UN Commission on Narcotic Drugs decided—at the same time as it made recommendations relating to the six substances which are the subject of the modification order—that flunitrazepam should be subject to a stricter regime of control under the UN convention. The amendment regulations which the Government propose to lay shortly will provide for the drug to be transferred from Schedule 4 to Schedule 3 of the Misuse of Drugs Regulations 1985, imposing stricter controls on the drug in compliance with those now required by the UN convention. The effect will be to make it an offence to possess the drug without lawful authority, apply import and export controls, and require the drug to be stored securely in warehouses and pharmacies.
§ So far as the United Kingdom is concerned the order is essentially a pre-emptive measure enabling us to comply with our international obligations. It will help to protect the United Kingdom from the misuse of these drugs. I commend the order to the House.
§ Moved, That the draft order laid before the House on 15th January be approved [20th Report from the Joint Committee].—(Lord Hoyle.)
§ Baroness Anelay of St. Johns
My Lords, as the Minister said, the order adds six substances to Schedule 2 to the Misuse of Drugs Act 1971 which specifies drugs which are subject to control under that Act. I am more than usually grateful to the noble Lord for rehearsing the pronunciation of all those drugs. As a result—thank goodness!—I shall not even attempt to do so.
We on these Benches support every effort of the Government to prevent, and to prosecute, the abuse and misuse of drugs. I say straightaway that we shall not oppose the making of the order but, as I was reminded in another discussion with regard to the Social Security Bill, where there is consensus between the main parties it is sometimes all the more important that we test the reasons why we are making changes and the necessity for adding to regulations.
It was in that spirit that I gave notice to the Minister before today that I would raise a question about the relevance of the Medicines Act in relation to just three of the drugs, which he expertly pronounced, to be added under the order as Class C drugs. I did so simply to give the Government the opportunity to say whether they had considered whether these three drugs were already sufficiently covered by the provisions of the Medicines Act and therefore did not need to be included in the Order. I assume from the fact that the three drugs are associated with Class C drugs in the order that they give rise to a very low level of risk of criminal misuse or abuse and that the Medicines Act may be an appropriate vehicle for prosecuting their misuse. That Act provides that one must not sell or supply certain medicines off 875 prescription, even if they are not named in the Misuse of Drugs Act as Class C drugs. They are already covered. The Act provides that,no person shall sell by retail, or supply in circumstances corresponding to retail sale, a medicinal product of a description, or falling within a class … [except] in accordance with the directions of an appropriate practitioner".It gives Ministers the opportunity to specify what kinds of medicinal products are covered by the regulations.
I understand that the underlying intention of the Medicines Act is to prevent the off-prescription sales or supply of particular drugs by certain less scrupulous medical practitioners. But the definitions in the Act of "retail" and "supply in circumstances corresponding to retail sale" make clear that the Act includes the wider activities of those who indulge in, or benefit from, the promotion of the illegal sale of drugs.
Have the Government considered whether these three Class C drugs can be more appropriately dealt with under the Medicines Act and, if so, why have they decided against doing so? I suspect that the Minister gave the major part of the answer but I should like to know the criteria that are used to determine whether a prosecution should be brought under the Medicines Act or the Misuse of Drugs Act. It may well be that the Government do not believe that the penalties available in a magistrates' court are sufficient. However, magistrates are allowed to pass a maximum sentence of six months on each individual offence and on two offences they may pass a consecutive sentence of six months, raising their maximum sentencing power to 12 months. I should be grateful if the Minister would address those points. However, we have no intention of opposing the making of the order.
§ Lord Avebury
My Lords, it goes without saying that we too welcome any attempt to clamp down on the misuse of narcotic drugs that is drawn to our attention by the UN Commission on Narcotic Drugs. I wish to ask the Minister just one question having listened carefully to everything he said about these particular drugs. I echo the congratulations expressed by the noble Baroness on the Minister's pronunciation. I shall not attempt to emulate it except for one drug that the Minister said had been the subject of a few reports of misuse: Methcathinone. Can the Minister inform the House what reports have been made to the Government about the misuse of this particular drug? I believe that it is the only drug mentioned in the order which has been the subject of such reports. I believe the Minister said that the others were referred to in the order by way of pre-emptive action to stop any possible future misuse whereas in the case of Methcathinone there had already been some reports of its misuse. Perhaps the Minister can describe the nature of the reports and how extensive the misuse has been.
§ Lord Hoyle
My Lords, I am very pleased that I am a qualified engineer rather than a pharmacist or medical practitioner and I do not have to pronounce the names of these drugs all the time. I deal first with the point raised by the noble Baroness. While some of the drugs 876 mentioned today are in Class C, all of the Class C drugs in the Misuse of Drugs Act are also covered by the Medicines Act 1968. But the latter Act does not contain the same teeth or clout as the Misuse of Drugs Act.
The primary purpose of the Medicines Act is to regulate medicines in normal usage. While it makes unauthorised sales an offence, it does not cover the wider concept of the supply of drugs; nor does it make an offence to possess with intent to supply. In addition, the use of the Medicines Act would not fulfil our obligations under the 1971 United Nations Convention on Psychotropic Substances. The Misuse of Drugs Act and its accompanying regulations ensure that we fulfil those obligations. Referring to Methcathinone, there have been reports of its misuse in the United Kingdom. All we have at the moment is a small number of reports by the police. They are very few.
The order will enable the United Kingdom to fulfil its international obligation as a party to the 1971 Convention on Psychotropic Substances. As was said by the noble Lord, Lord Avebury, while we in the United Kingdom are fortunate that we have not suffered any significant degree of misuse of the six substances, there is appreciable misuse of the substances worldwide. Approval of the order will help to ensure that, should any unlawful activities involving these drugs reach the United Kingdom, the necessary controls are in place to deal with them. I commend the order to the House.
§ On Question, Motion agreed to.
§ Construction Contracts (England and
Wales) Exclusion Order 1998
§ Scheme for Construction Contracts
(England and Wales) Regulations 1998
§ Construction Contracts (Scotland)
Exclusion Order 1998
§ Scheme for Construction Contracts
(Scotland) Regulations 1998
§ 11.20 a.m.
§ Baroness Farrington of Ribbleton rose to move, That the draft orders and regulations laid before the House on 18th December 1997 and 12th and 19th January 1998 be approved [18th and 20th Reports from the Joint Committee].
§ The noble Baroness said: My Lords, I beg to move en bloc the four draft orders and regulations standing in my name on the Order Paper. I understand that that is acceptable to those of your Lordships who take part in such debates.
§ Part II of the Housing Grants Construction and Regeneration Act 1996 deals with construction contracts. Section 108 requires that all construction contracts provide parties with the right unilaterally to 877 refer disputes arising under the contract to adjudication. Sections 109 to 111 require construction contracts to provide certain payment mechanisms and notice provisions, and Section 113 prevents "pay-when-paid" clauses operating in most circumstances.
§ Where a construction contract does not comply with these sections of the Act, the relevant provisions of the Scheme for Construction Contracts take effect. In other words, the scheme is intended to be imported as implied terms into contracts which do not comply with the Act.
§ Part II of the Act was intended to cover a wide range of construction contracts. However, there are certain types of contract and agreement which, although connected in some way with construction operations, were never intended to be caught by the provisions of the Act. The exclusion orders are intended to ensure that such contracts and agreements do not fall within the scope of the Act. They cover certain agreements made under statutory provisions; head contracts under the private finance initiative; finance agreements, and development agreements.
§ Both sets of regulations have been subject to a great deal of consultation. It has not been possible to please all parts of the industry over their every detail. But it is quite clear that there is an overriding desire across the industry for the regulations to be put in place as soon as possible so that the industry can at least begin to benefit from Part II of the Act. I therefore commend these orders to the House.
§ Moved, That the draft orders and regulations laid before the House on 18th December 1997 and 12th and 19th January 1998 be approved [18th and 20th Reports from the Joint Committee].—(Baroness Farrington of Ribbleton.)
§ Baroness Hamwee
My Lords, I welcome the orders and regulations and wish to raise three brief points. I apologise to the House and to the Minister for being unable to give detailed notice of them. With regard to the two draft regulations, the first point relates to paragraph 20(a) dealing with the adjudicator's decision. It allows the adjudicator to revise certificates and decisions unless they are expressed in the contract with which he is dealing to be final and conclusive. The prospect is that the statutory right to refer disputes to adjudication could be undermined. Contracts could provide for adjudication provisions to apply but that all decisions and certificates would be final and conclusive; in other words, equivalent to contracting out of the adjudication provisions. Can the Minister comment on that? If not, perhaps she can write to me.
Paragraph 24 of the regulations relates to enforcement by the court. The enforcement provisions are those which will apply to the adjudication. The scheme amends the Arbitration Act 1996 and in consequence gives the courts the power to enforce the adjudicator's decisions. The scheme does not amend Section 42(1) of the Act, which provides that unless otherwise agreed by the parties the court may make an order. I am not sure whether that is an oversight or whether deliberate action has been taken in leaving Section 42 as it stands.
878 I appreciate that the orders are not amendable and that I have not given the Minister notice of those points. However, I understand that in response to representations her honourable friend the Parliamentary Under-Secretary of State, the Minister for London and Construction, has indicated to the industry that if there is evidence of abuse the regulations can be revisited. Can the Minister confirm that? If not, can she write to me?
Finally, do the Government intend to introduce rules of court to facilitate an application under paragraph 24 to enforce the adjudicator's decision? If they intend to introduce rules of court, which it appears are required, when are they likely to emerge?
§ Lord Howie of Troon
My Lords, the orders arise from Part II of the Housing Grants, Construction and Regeneration Act 1996, about which we had considerable detailed discussion in this House when my party was in opposition. The view which it then took on the matter is not the view which it appears to be taking now.
The problem was that the Government totally confused the ideas of adjudication and arbitration. Our debates were largely guided towards teaching the Government and their advisers the distinction between those two aspects of civil engineering contracts. The House will be aware of my long-standing relationship with the construction industry.
The Construction Industry Council reminded the Government that Part II of the Act was intended to implement certain aspects of the report made by Sir Michael Latham several years ago. It did so only in a partial manner and pointed out (I quote from the CIC's information):In view of the quick fix, rough justice nature" —that was Sir Michael Latham's description of adjudication—the CIC believe that there are no circumstances in which the adjudicator's decision can be final".However, it was agreed that it could be binding until the end of the contract, at which point the participants in a dispute or disagreement would then go to arbitration; arbitration being binding and final, but adjudication being temporary. It is a quick fix, rough justice solution to an interim problem. It was the kind of thing which consulting engineers used to do without adjudication.
I endorse the remarks of the noble Baroness, Lady Hamwee, in relation to paragraph 20. It has the effect of making adjudication arbitration. I sincerely hope that the Government will grasp hold of that idea because we have a new Government with clear eyes and clear minds. However, they seem to have taken this particular piece of legislation out of a pigeon hole to which it was consigned some time ago. I ask the Minister to realise that that part of the regulation is in error.
I have only one other point to make in relation to the regulations. I draw the Minister's attention to paragraph 2(3) which states that,an 'adjudicator nominating body' shall mean a body … which holds itself out publicly as a body which will select an adjudicator when requested to do so by a referring party".879 I know that quite recently an Institute of Adjudicators has been established. I am sure that it is a worthy body. In fact, I know it is because I gave out some certificates for it a few months ago and saw those people in the flesh. They are very proper people. But that provision permits just about anyone to set up as an adjudicating body. My noble friend who sits here could set up an organisation and purport to be an adjudicating body. I believe that it would be a good idea for adjudicating bodies to be monitored or registered by the department in some way so that those bodies would have real authority.
Lastly, I endorse again the comments made by the noble Baroness, Lady Hamwee, in relation to my honourable friend Mr. Raynsford who has suggested that the Government will keep this matter under review for a time and, if it proves to be unsatisfactory, will look at it again. Instead of having that "if', it would be better for my honourable friend to review the workings of the Act and undertake to bring in new housing legislation which will not only correct the errors in the regulations but will also implement the rest of the recommendations of Sir Michael Latham which are not as yet in legislation.
§ 11.30 a.m.
§ Lord Hacking
My Lords, with the leave of my noble friends on the Front Bench, perhaps I may express a few views from these Benches on the regulations.
I believe that we have every reason to be proud of our construction industry, our construction companies, our consulting engineers, in many disciplines, our architects and many others, as we look worldwide and see the achievements of our construction industry.
But our construction industry has also been subject to diverse problems. The difficulty—and I recognise it immediately—for government, whichever government are in power, is that they are not assisted by unity of views from the construction industry. Indeed, they suffer from the expression of diverse views arising out of the diverse problems of the construction industry. I well remember over 10 years ago, with the noble Lord, Lord Howie of Troon, when taking through this House the Latent Damage Bill the many diverse views from the industry which were then presented to the government of the day. Therefore, my colleagues on the Front Bench, remembering their days in government, will have sympathy for the Minister over the diverse views that are represented from the industry.
However, I should like to record that the industry is making good progress in consolidating its voice. For example, there is now a greater unity in contracts which are used in the construction industry. There are now more joint bodies which are able to represent the views of the industry to government. A particular achievement which I mention as a lawyer is that construction lawyers, with support throughout the industry, have managed to introduce and publish the Construction Industry Model Arbitration Rules.
One of the critical problems in the construction industry has been the problem of payment. As it happens, throughout this week I have been attending an 880 arbitration and the critical dispute between the parties in this arbitration concerns the matter of payment. Therefore, it is reasonable and helpful to have the new provisions of this Act which are in Sections 109 to 113. They address the problems of payment. Section 109 gives entitlement to staged payments and Section 110 specifies that there should be a mechanism for determining what payments become due under the contract. Section 111 prohibits a party to a construction contract from withholding payment after the final date for payment unless an effective notice has been given. Section 112 gives the right to a party to suspend performance on the contract when that party has not been paid. In Section 113 there is a prohibition on entering into an agreement not to pay another party until the first party has been paid. That has been one of the serious problems, particularly for sub-contractors, when the main contractor refuses to pay the sub-contractors until he has been paid by the employer.
Therefore, we should welcome these provisions for the reasons I have sought to identify. It seems that they have a sound basis. The problem is that this scheme goes a great deal further. It does not just deal with payment disputes but with all disputes which arise in the construction industry. Also under Section 108(2)(a), it permits adjudication "at any time" relating to any dispute which might arise during the construction process.
Thus there is a wedge being driven into the inalienable right of parties to reach a contract on a consensual basis. The effect of the scheme is to apply obligatorily statutory terms of contract into all contracts that are negotiated within the industry. That goes against established party autonomy—for example, in the Arbitration Act 1996—and ignores the powers available, for example, under Section 39 of the Arbitration Act where parties can go for provisional relief during the course of the performance of the contract.
As a result of those concerns, strong views have been represented, as the Minister knows, from certain sections of the industry, particularly the construction lawyers. Far from reducing the number of disputes, there is a real danger that the floodgates could be opened and abuse perpetrated. For example, it will enable a contractor who is determined to pursue an unmeritorious claim to cause maximum disruption to the dispute resolution process or even to the proper administration of the contract. There is not even a provision whereby the right to adjudication terminates upon notice of arbitration being given or upon the commencement of legal proceedings. That is unique. Thus, a party which is dissatisfied with the rate of progress or even the likely outcome of arbitration proceedings appears still to have the right to refer the same dispute, or even part of it, to adjudication leading to a decision which will be binding until the dispute is determined finally by the arbitrator.
It also does not deal with the problem of the multi-party dispute which is a well known problem in industry disputes.
So strongly were the views held by a number of experienced practitioners in the construction industry that a collection of papers was drawn together by 881 Professor John Uff and presented in printed form to the Government at the end of last year. It has the rather stinging title of, Construction Contract Reform: A plea for sanity. Therefore, I would ask the Minister to consider most carefully where we go from here. I accept that these regulations today should receive the approval of the House. Indeed, I am not asking for them to be withdrawn.
However, it may have been more sensible for the Government to go forward in steps and not in leaps. It may have been more sensible for them, for example, to bring in these new adjudication proceedings just in relation to payment disputes and not in relation to all disputes. Therefore, I join with the noble Lord, Lord Howie, and I believe also with the noble Baroness, Lady Hamwee, in asking the Government to monitor the process of the scheme and to keep it under review. If it should be shown that there is abuse and the number of disputes are multiplied rather than reduced, I hope that the Minister will be able to undertake to bring the matter swiftly back to Parliament.
The other matter that I should like to ask the Minister to consider now is the phrase of, "any time", in Section 108(2)(a) of the Act. It would not be a difficult matter and I believe that it could possibly be dealt with by secondary legislation. While I hesitate a little on that proposition, this is surely a matter which should be addressed. There should be a time limit because otherwise people will abuse the scheme. I hope that those observations have been helpful to the Minister and that she will, therefore, be able to bring some comfort to what I have said.
My Lords, there is little that I can add to the expert words that have already been spoken this morning. However, there is one part of the regulations on which I should like to ask the Minister to address the House when she responds. I refer to Regulation 25 which deals with the adjudicator's fees. It says:The adjudicator shall be entitled to payment of such reasonable amount as he may determine by way of fees and expenses reasonably incurred by him. The parties shall be jointly and severally liable for any sum which remains outstanding following the making of any determination on how the payment shall be apportioned".As a solicitor in private practice, I am bound to point out to the House that I view with envy the idea that one can be the sole determinator of what is reasonable as regards one's fees.
However, on a rather more serious note, we are very often talking in construction contracts about small businessmen in contract with very large firms. While I appreciate that this is a fast track, and while I accept that when the matter was discussed in the other place it was said that it was unlikely that large fees would be incurred, nevertheless, the size of the fee very often depends on the ability of the person to pay. Indeed, that decides whether or not the amount is viewed as large or small.
I am somewhat unhappy that there appears to be nothing in the regulations to resolve a dispute about fees. Mr. Raynsford, the Minister's honourable friend, 882 said that the adjudicator would have recourse to the courts for enforcement of payment if the parties fail to meet the fees that were provided for and that provision has to be made through the courts for enforcement in that respect. Likewise, it appeared to be suggested in another place that the parties could have recourse to the nominating body if they felt that the adjudicator had demanded unreasonable fees and expenses.
Nevertheless, that all seems to me to be rather complicated and potentially expensive for what is supposed to be an inexpensive and fast-track procedure. I hope that the Minister will be able to address that point when she replies. I apologise for the fact that I was not able to give her prior notice of that question.
§ Baroness Farrington of Ribbleton
My Lords, to be asked to approach this matter with clear eyes and a clear mind is quite difficult. As all noble Lords who have spoken today have acknowledged, we are dealing with quite a complex matter. The noble Lord, Lord Hacking, was certainly right when he referred to the diverse views expressed within the industry. I listened to the comments made during the debate with great interest. There is clearly strong support in principle for the scheme and the principles behind it.
However, before I turn in detail to the points raised in the debate, I should like to make one or two brief general comments about the orders before the House. I believe that that will help to put the points raised into context and will show that the Government intend to make absolutely sure that the industry benefits from Part H of the Housing Grants, Construction and Regeneration Act 1996 and benefits from it as soon as possible.
The construction industry is a complex operation. It often involves a number of different processes carried out by different contractors, sub-contractors, suppliers, professionals and specialists. These players may have different interests. A complex network of construction contracts normally sets the ground rules by which they act and interact. However, things do sometimes go wrong and disputes arise. There are often disputes about what has or has not been paid and those disputes often drag on, costing time and money.
Part II of the Act is introduced with cross-party support and with the support of the construction industry. Its principal aims are, first, to ensure that disputes over payments become rarer because construction contracts are clearer over what is to be paid and when; and, secondly, to provide a straightforward and speedy means of resolving disputes through adjudication.
I turn now to some of the detailed points that were raised during the debate. The noble Baroness, Lady Hamwee, raised the issue of paragraph 20(a) of the scheme. This paragraph gives the adjudicator the power to open up any decision or certificate unless the contract states that it is final and conclusive.
I am aware that this issue has caused concern to some parts of the industry. The Government took advice on that point and views were not unanimous. However, we accepted the argument that the "final and conclusive" proviso was important in order that the contracting 883 parties should be able to agree whether certain certificates and decisions should be opened up. It is only common sense that there are some decisions—and we are thinking of technical and professional matters—which parties will be prepared to have "signed off" and not reopened. However, I know that there are anxieties about the misuse of the paragraph 20(a) provision. I believe that they are misplaced, but, nevertheless, we will keep an eye on the workings of the scheme. If abuses of that provision become apparent once the legislation has been in operation for a while, we are prepared to act.
A further point was raised concerning enforcement of the adjudicator's decision under paragraph 24 of the scheme, in particular the importing of Section 42 of the Arbitration Act. For adjudication to work, it is vital that the adjudicator's decision is complied with by both parties. That will only happen in practice if there is a quick, unambiguous and practical route to the courts in cases of non-compliance.
The England and Wales scheme adopts a mechanism based on Section 42 of the Arbitration Act 1996. The function of Section 42 in the context of arbitration proceedings is to ensure that any procedural order made by the arbitration tribunal may be enforced in the courts. Adjudication decisions are of course not mere procedural orders. They are quick, practical decisions which are intended to be enforced without challenge until a final decision or agreement is achieved. The use of Section 42, suitably amended, is quite fitted to the type of enforcement required under adjudication. It seems unlikely that the words,unless the parties agree otherwise",in Section 42 of the Arbitration Act will cause problems. A person who goes to the trouble of specifically excluding a reference to Section 42 of the Arbitration Act from his contract is unlikely to be relying on the scheme in the first place. Such a person is more likely to use adjudication provisions which are more suited to his circumstances. However, I know that there are those in the industry who are concerned about the application of Section 42. I can assure noble Lords that we shall consider whether this causes significant problems in practice. If it does, we are prepared to consider changes to the scheme.
The noble Baroness, Lady Hamwee, referred to Section 42. I hope I can offer some clarification. Section 42 was brought into force on 31st January 1997. The procedure is covered by the rules of the Supreme Court amendment order 1996, which also came into force on 31st January 1997. Section 42 is not given a particular mention and is therefore covered by the general provision of the rules. The "white book" which contains the rules of the Supreme Court is published biennially. The latest edition does not include the 1996 orders.
My noble friend Lord Howie mentioned adjudicator nominating bodies. I should perhaps run through the background to the current provision at paragraph 2(3) of the scheme. The original intention, as set out in the consultation paper issued in November 1996, was that the scheme itself would list adjudicator appointing or 884 nominating bodies. This was intended to provide a straightforward fallback for obtaining an adjudicator if the contract did not make provision for this, or if the contractual provision had failed. The problem is that it would have required an amended affirmative order every time a nominating body wanted to be added to or removed from the list. That would not have been a good use of Parliament's time. Therefore Ministers decided that there should be no statutory list. That this was the correct decision is borne out by the fact that one of the potential adjudicator nominating bodies has already withdrawn.
The scheme now provides more flexibility for referring parties who wish to find an adjudicator quickly. It does not set strict criteria for adjudicator nominating bodies as to do so would immediately create scope to challenge the whole adjudication process. It does, however, place a clear and unambiguous duty on the adjudicator to act impartially, and includes various other checks aimed at ensuring that the adjudication is carried out in accordance with the Act. The Department of the Environment, Transport and the Regions and the Scottish Office will initially make available lists of organisations which offer their services as ANBs. The kinds of bodies which will be included on these lists will be professional bodies, legal bodies and industry umbrella bodies which have indicated their willingness and ability to offer an adjudicator nominating service.
The noble Lord, Lord Hacking, raised a point concerning the payment provisions in the scheme. They are based on lengthy and detailed consultation with the industry. The department took on board many comments made by the industry following informal consultation with the industry in the summer. I do not for one moment pretend that the provisions will be the ideal solution for every contract, but they provide a workable menu of clauses which can be imported as and when they are needed.
The noble Lord, Lord Hacking, commented on Section 108 of the Act. I hear what he says but I am afraid that I am unable to comment today on the wording of the Act. Adjudication was requested by the construction industry. It is still awaited with some enthusiasm by the industry. The Minister for London and Construction has said that the Government will monitor progress. The Government want this legislation to work for the construction industry and will do their best to ensure that it does so. The industry has waited a long time for Part II to be brought into effect. I fully expect the orders which we have debated to allow that to happen. With such a diverse industry it has been impossible to obtain a consensus. However, we have tried to listen to all the arguments which have been put to us and have come up with a scheme which reflects the interests of the industry as a whole.
The noble Lord, Lord Bowness, asked what controls there are as regards the levels of fees which an adjudicator may charge. Paragraph 12(b) of the scheme places a clear duty on the adjudicator to avoid unnecessary expense. The Government have not introduced any further requirements in the scheme on the level of fees or expenses. I do not think, for example, that it would be appropriate to list fee scales in the 885 scheme. Every increase would require the affirmative resolution of the House. I hope that the industry will use this as it is intended; namely, as a way of minimising the cost and disruption which have hampered many construction operations. But, as I said, if any aspects of it cause problems, we are prepared to make changes.
The type of matter covered in the legislation is untested and it clearly makes sense to keep a careful watch that it is benefiting the industry in the way intended. There are a number of ways in which monitoring can be carried out. What is vital is that the experiences of the adjudicator nominating bodies, professional institutions, industry bodies and, above all, those in the industry who use the legislation form part of the overview of how the legislation is working in practice. We shall be prepared to revisit the scheme if there are significant problems. I commend the orders and regulations to the House.
§ Lord Hacking
My Lords, before the Minister sits down, I hope that she can help me. In response to comments that I and, I believe, other noble Lords made, she said more than once—this was most welcome—that it is the intention of the Government to monitor the scheme. She also said, helpfully, that if problems arise changes will be made. Can she help the House a little further? Can she make available the results of the monitoring so that we can see how the scheme is working and possibly make helpful suggestions to the Government?
§ Baroness Farrington of Ribbleton
My Lords, I am sure that the Government will welcome informed comment from all those with an interest in this scheme as part of the monitoring process. I hope that that will satisfy the noble Lord. If that is not the case, I shall write to him.
§ Lord Hacking
My Lords, will the results of the monitoring be made public? That is what I am anxious to obtain.
§ Baroness Farrington of Ribbleton
My Lords, I do not feel able to give a commitment because of the detail that may be contained in individual contracts that form part of the monitoring and the assessment. However, within reason and within those constraints, I am sure that it will be possible.
§ On Question, Motion agreed to.