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INTRODUCTION
In January 2003 the Scottish Executive (now the Scottish Government) issued a Consultation Document on ' Improving Adjudication in the Construction Industry' and published the Consultation and Proposals Report 3 in May 2004. This was however overtaken by the subsequent effects of the Chancellor's Budget announcement in March 2004 of a wider Review of the Construction Act 4.
The Scottish Government decided to await the outcome of the Review to decide if other changes identified would have relevance for Scotland, to ensure that, where possible, arrangements north and south of the border remained consistent for the industry.
Following the Budget announcement, Nigel Griffiths, then Parliamentary Under Secretary of State at Department of Trade and Industry ( DTI now Business Enterprise and Regulatory Reform ( BERR)) asked Sir Michael Latham to review the operation of the Construction Act. Sir Michael's findings were published in September 2004. His report concluded that the Construction Act is generally working well but some improvements would be helpful if means could be found to deliver them without adverse impacts on other parties or other elements of payment processes.
Following the Latham report, BERR issued in March 2005, jointly with the Welsh Assembly Government ( WAG), a first consultation document, Improving Payment Practices in the Construction Industry. This looked at a number of issues where amendments to the existing Act may be needed and covered both the payment framework and adjudication.
On 20 June 2007 BERR and WAG published a second joint consultation paper considering amendments to the Construction Act, which would be taken through UK Parliament by the UK Government and would affect both England and Wales. This consultation ended on 17 September 2007 with a total of 71 responses being submitted and BERR have produced an analysis of responses received 4.
In an effort to minimise any divergence for the construction industry across the United Kingdom a similar consultation exercise was undertaken in Scotland from 29 August to 24 October 2007. Although Scotland's consultation was conducted independently the proposals within it replicated the proposals in BERR's consultation. A total of 13 responses 5 were received with 9 of those responding to the questions within our questionnaire and 3 others providing standard letters endorsing the views of the Scottish Confederation of Associations of Specialist Engineering Contractors/Specialist Engineering Contractors Group of whom they are constituent members. A further response was received after our deadline and has not been included in this analysis.
While this document provides an analysis of those responses it should be borne in mind that due to the relatively low number of responses received there is a limit to the value of this analysis which can only provide an indication of the measure of support for our proposals.
In considering the responses we have kept in mind:
- The need for improvement in payment practices under the legislation for all concerned;
- The need to respect the principle of freedom of contract, though at times it may be essential to intervene;
- The continuing development of case-law in adjudication and payment provisions in relation to the Construction Act.
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