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Lord Williams of Elvel: I hope that the Minister will not brush aside the problem of "occupation" and "intention to occupy" which the Law Society of Scotland raises. It is not clear to me--we have had this before in Part I--when an intention to occupy is formed. I can intend to occupy the Minister's house in Norfolk, say, at some stage in the future. I am not sure whether I shall be able to do so, and in what circumstances, but that is my firm intention. In 20 years' time, I shall be living in the Minister's house. Is that an intention to occupy?

Earl Ferrers: In no way did I mean to disparage the words of the noble Lord, Lord Williams, and still less those of the Law Society of Scotland. What I was saying was that if his amendment were accepted there would be the difficulty that if the building was being worked on and he was not in residence because he decided to go away, that part of the construction would not be covered by the Bill. I take account of what he said, but I understand that his amendment would leave that loophole, which is something we do not want.

The noble Lord asked when an intention becomes a fact. I believe that we had this discussion the day before yesterday. He may say that he wants to live in my house, and has every intention to. I can tell him that he jolly well will not. So however well-intended his intentions may be, they might not come to fruition. On the other hand--if we are going personal--if the noble Lord were to offer me a handsome sum of money, the conditions would be separate and different. However, I do not think that is likely either.

Lord Williams of Elvel: All that I am saying is that we need some definition of the words "intention to". I hope that the Government will be able to satisfy us, either by ministerial statement of what it means so that the courts can understand, if it comes to that, or produce something on the face of the Bill.

Earl Ferrers: I shall look into the point made by the noble Lord.

Lord Howie of Troon: I sincerely hope that the Minister will pay particular attention to the comments on the Scottish question made by my noble friend Lord Williams. Matters of great importance to my fellow countrymen were raised, and dealt with eloquently by a fellow Celt. However, in view of the Minister's explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 141 to 143 not moved.]

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The Deputy Chairman of Committees: Before calling Amendment No. 144, I should inform the Committee that if the amendment be agreed to I cannot call Amendment No. 145. Amendment No. 144, Lord Williams of Elvel.

Lord Williams of Elvel moved Amendment No. 144:

Page 59, line 45, leave out subsection (3).

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 145 standing in the name of the noble Baroness, Lady Hamwee. It is odd to have a subsection which consists of seven lines and then a further subsection which provides:

    "The Secretary of State may by order amend subsection (2)".
If the Government cannot get seven lines in a Bill right and have to reserve their position to amend it by order, there is something wrong with the drafting of legislation.

My preference would be my amendment, but if the Minister can explain that there is some good reason why the Government have to go back on seven lines they have put in the Bill, presumably after due consideration and study, then I should prefer the amendment tabled by the noble Baroness, which at least would preserve the principle that if primary legislation is to be amended by order, then that order should be subject to approval by resolution and debate by both Houses of Parliament. I beg to move.

Baroness Hamwee: I approach the matter slightly differently, thinking that there may be something in the pipeline. I wondered whether the proposed commonhold legislation might come up with definitions which might require the Government to review this subsection. I share the concern expressed by the noble Lord, Lord Williams of Elvel. To redefine "a dwelling" is pretty fundamental. We should be able to describe it simply enough so that it does not have to be changed. However, I am open to argument.

Earl Ferrers: That is always a good thing. The noble Lord, Lord Williams, was becoming rather pugilistic when he said that if the Government cannot even get seven lines right there must be something wrong with the drafting. He knows that is a whole load of fluff and flannel, if I may respectfully say that to him. Unusually, that happened to be so on this occasion.

The noble Lord knows well that in any Bill one has to include clauses which allow the small detail of the Bill to be changed from time to time without reverting to primary legislation. Otherwise, one has to produce huge great Bills, or sometimes small Bills, which become caught up in the pipeline. One cannot amend something that appears to be wrong once it is operating in practice. We have no reason to believe that this will not be right. But we believe that it is desirable for the Secretary of State to be able to make minor changes in technical definitions without recourse to primary legislation on each occasion.

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Definitions may require fine tuning after they have come into action. There may be a need for modifications from time to time, as new developments emerge. It is not a case of the Government not having it right the first time. The Government wish to make sure that any legislation that Parliament puts onto the statute book is flexible in the course of actions which might take place in five or 10 years' time. That is why we want to have this provision.

I accept that the amendment of primary legislation should not be a matter for negative resolution. We shall certainly consider the amendment tabled by the noble Baroness, Lady Hamwee, which would make it subject to affirmative resolution. I hope that that will satisfy the noble Baroness. I always try to be helpful and to satisfy the noble Lord, Lord Williams, but he does not look, as usual, as though he is too satisfied. He should be satisfied because I have made a great concession by accepting what the noble Baroness has suggested in principle.

Lord Williams of Elvel: So there is a little more "fluff and flannel" coming up. The noble Earl cannot get away with all that. The expression "dwelling" means a dwellinghouse or flat. All those expressions must have been defined in law already. They must have been studied and there must have been endless pieces of legislation which have defined those terms.

However, I cannot do more than express my astonishment that, after all these years, the Government cannot produce a proper definition of "dwelling" in a Bill such as this one, without having the power to amend it as they see fit in the future. Nevertheless, as the noble Earl is prepared to accept the amendment of the noble Baroness, Lady Hamwee, I shall withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 145 not moved.]

Clause 103 agreed to.

Clause 104 [Provisions applicable only to agreements in writing]:

Baroness Hamwee moved Amendment No. 146:

Page 60, line 7, leave out ("whether or not it is").

The noble Baroness said: This amendment is grouped with Amendments Nos. 147 and 149 in my name and Amendment No. 148 tabled by the noble Lord, Lord Howie of Troon. It is obvious that they are probing amendments.

Amendment No. 146--to leave out the words "whether or not it is"--seeks to ensure that an agreement is made in writing if it fulfils paragraphs (b) or (c) or is signed by the parties. I am concerned about the evidence that would be required as to whether or not an agreement where there is a written form has been agreed if it is not signed.

Amendment No. 147 suggests a wording:

    "Where parties wholly or substantially agree otherwise than in writing".

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It queries how much one needs in order to reach agreement. I am aware that the law requires the main terms to be certain and such terms to be agreed as amount to an agreement. But I am bothered about the wording of the Bill as drafted.

Amendment No. 149 would amend subsection (5) where it is suggested that written submissions which are not denied constitute an agreement in writing. That is a little dangerous. There may be no denial for reasons which do not amount to accepting or admitting--"admit" is the verb that I have chosen to use--the agreement.

Those amendments are probing amendments to try to understand what some of those provisions add up to.

Clause 104(4) refers to "evidenced in writing". That makes me wonder what is the point of Clause 104(2)(a). It does not seem necessary to have the two together. That point was also in my mind. I beg to move.

Lord Howie of Troon: Amendment No. 148 in my name is almost as short as an amendment can be in that it consists of only two words. In Clause 104(5) there is reference to:

    "An exchange of written submissions in arbitral or legal proceedings".
Since Clause 105, which is the heart of Part II of the Bill, refers to adjudication--the most important part of the Bill--I wonder why adjudication is not mentioned in Clause 104(5). I have suggested that the words "adjudication or" should be inserted before the word "arbitral".

There may very well be a reason for that wording and I just wondered what it might be. I hope that the noble Earl will tell me.

6.15 p.m.

Earl Ferrers: These three amendments would make it easier for parties to avoid the provisions. I hope that there is no need to consider whether the intention behind the fair contract provisions is right, or to entertain the idea that parties should be free to opt in or out at will. The three amendments, Amendments Nos. 146, 147 and 149, tabled in the name of the noble Baroness, Lady Hamwee, would seem to make it easier for parties to continue in their old ways--by making sure that an agreement was never signed, or that not too much of the detail was written down, or by simply refusing to admit the existence of an agreement.

One of the amendments, Amendment No. 147, could also cause some confusion and litigation. As currently drafted, in order to establish his rights to fair contract treatment, it is enough for a party to be able to point to a written document which was the subject of an oral agreement. But if Amendment No. 147 was in force, he would also have to prove that such a document was "wholly or substantially" instrumental to that agreement.

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We should be apprehensive for fear that unscrupulous parties might try to push contracts outside these provisions by making oral agreements where written ones are needed. We do not want a mass of litigation to arise over whether contracts can be considered written or not. I suggest that most people are wise enough to get at least something in writing before they embark on lengthy and expensive construction work. If they do, there should be no doubt that they are entitled to fair contract provisions. I believe that their interests would be better served if the noble Baroness's amendments did not form part of the Bill. However, she said that she intended them to be of a probing nature.

I am inclined rather more favourably toward Amendment No. 148 of the noble Lord, Lord Howie of Troon. This would make it possible for an exchange of communications in adjudication proceedings to provide evidence of a written agreement, if that was not denied by one of the parties. I can see much sense in that, especially since we hope that most disputes will be subjected to adjudication in the first instance. Perhaps I might suggest to the noble Lord that he withdraws his amendment, as I should like to reflect upon it and return to it perhaps at a later stage.

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