Food for thought

There has to be something wrong when I start taking active steps to banish pie from my diet. Yes, you name it – pork, apple and blackberry, mince, pigeon – they are all banned. And yet now I find myself eating humble pie by the handful.

Okay, so a few weeks ago I said in these pages that the government would never – yes, never – get round to overhauling the Construction Act (5 March, page 50). So what happens? Gordon Brown announces in his Budget speech that the government is going to carry out a comprehensive review of the operation of both the payment and adjudication aspects of the legislation.

Gee, thanks, Gordon! My paranoia was exacerbated when one of the construction industry team at the DTI, explaining the background to this surprising initiative, told me that they had derived a great deal of satisfaction from making me eat my words.

Anyway, whatever the reasons for it happening, this review is overdue and, in my opinion, unreservedly welcome. That the government has enlisted great reformer and fellow columnist, Sir Michael Latham, who produced the seminal report Constructing the Team to which the legislation and many other valuable changes in the industry owe their origins, is also to be greatly welcomed. I cannot think of a better person to hold the legislation up to the light and judge the extent to which it has been achieving the objectives that were so clearly laid down in his report.

One of the team of the DTI told me that they had derived a great deal of satisfaction from making me eat my words

I hope that everyone involved in the industry and in sorting out its problems will consider how they can assist Sir Michael. This is an unexpected chance to clarify the legislation and to iron out its deficiencies.

So what particular aspects of the legislation should Sir Michael and his team be concentrating on? As a starter for 10, I suggest that the following points should go on the agenda:

Scope. Should the scope of the legislation, in terms of the contracts to which it does and does not apply, be revisited? For instance, should contracts relating to process plant be universally excluded? What about extending the legislation to residential situations?

Are the provisions relating to "agreements in writing" operating satisfactorily?

Payment. How successful have the provisions been in preventing the unprincipled withholding of payment from parties carrying out construction work? Specifically, should a more radical approach be adopted to "pay when paid" clauses and provisions that are clearly designed to get round the legislation? Do the provisions relating to the withholding of money certified due under the contract need clarification?

Adjudication. Should adjudication be restricted? There have been judicial pronouncements suggesting that it should be limited to simple disputes and should not in any event apply to disputes involving professional negligence issues.

Should there be one compulsory set of adjudication rules? If so, should the Scheme for Construction Contracts be used as a base with positive features of other contractual schemes added?

Do the obligations of the adjudicator need to be clarified, particularly with regards to the application of the rules of natural justice, so as to avoid the numerous arguments about such matters raised in enforcement proceedings?

Should provisions requiring that one party, normally the claimant, bear the adjudicator's fees, no matter the result, be declared illegal? Should adjudicators be given the same power to award costs as judges and arbitrators have?

In my view, the more debate about these matters the better. It is vital that the industry as a whole has its say. I would therefore welcome your views on these points and on any others that you believe should be addressed as part of the review. I will ensure that your views are passed on to the DTI in one shape or another.