5 - THE LATHAM REPORT and THE MOSAIC LAW

Building can be viewed as a system of procurement and contractual arrangements under which the industry meets the needs of its clients, including Government. The system influences effectiveness, competitiveness, coherence and culture. The 1994 Latham Report made significant recommendations for the future. Similarly, the Mosaic law can be viewed as the system by which Israel sought, often with difficulty, to order its life.

5.1 Building Materials: The Latham Report, 1994

The process of the Review

Constructing the Team (Latham, 1994) was the final report of the `Joint Review of Procurement and Contractual Arrangements in the UK Construction Industry' carried out by Sir Michael Latham (the Reviewer). The Review was jointly funded by government and construction industry organisations and bodies representing clients were closely involved. Government, client and industry interests made up the group of eight Assessors, who

`formed an expert sounding board and conduit of advice. But they became much more. A tremendous spirit of cooperation and mutual confidence soon emerged. We [the Reviewer and Assessors] discussed highly contentious issues which directly affected the livelihood and commercial prospects of their organisations. Feelings on these issues run very

deep.... It would not have been surprising if we had had angry meetings of the Assessors. perhaps even breakdown in the discussions. Nothing could be further from the reality. The participants listened carefully to each other, weighed the contrasting arguments seriously, and frequently reconsidered their own views. It was said on several occasions that opinions had been changed by what had been heard.' ( Para 1.4 p2).

This experience of the Assessors is in marked contrast to widespread experience in the industry. An interim report Trust and 1Lloney (1993) had been encapsulated in the aphorism `too little trust and not enough money'. Clients were distrustful of the industry's workings, consultants feared that clients would hold them responsible for extra expenditures, contractors worried that clients would not pay them properly and suspected that sub-contractors would overcharge them, and specialists feared that they would be underpaid by main contractors.' (Building 7 January 1994 p15). One can see the task of the Review, and of the actions that would flow from it, as that of bringing the distrust and fear of much everyday experience closer to the mutual confidence and trust discovered by the Assessors. Such review is not a one-off task but an ongoing one which each generation seems to find it necessary to undertake. The Simon Report (1944) and the Banwell Report (1964) were precursors of Latham. However beneficial Latham may turn out to be, it is likely to have successors.

The necessarv changes

The Report and its recommendations are the work of the Reviewer alone. They are based on wide ranging discussions with interested and involved people and interest groups. Everyone who sought a discussion had one. The Reviewer and/or his Assistant participated in 58 discussions in the preliminary phase and 85 in the main phase. ( Para 1.6 p2). There are 30 recommendations, most having several parts. From the perspective of this dissertation they can be expressed as follows:

CLIENTS (Recommendations 1-4 pp5,19)

The client must come first; government must be a best practice client; a clients' forum is needed.

Guidance for clients on briefing should be produced. A Construction Strategy Code of Practice, explaining how to meet objectives and obtain value for money, should be produced for and followed by the public sector and appropriate parts of the private sector.

DESIGN (Recommendations 5-8 pp21,25,27,30)

Design must be a coordinated process with responsibilities allocated; in particular Coordinated Project Information, 'which should have become normal practice years ago' must be implemented

CONTRACTS AND PAYMENTS (Recommendations 9-12 pp41-2 and Para 5.18 p37)

The 63 year old Joint Contracts Tribunal must be reformed. In particular it must produce a family of new interlocking agreements appropriate for all clients (including Government) and all types of work incorporating procedures known to achieve effectiveness.

There must be a duty for parties to deal fairly with each other within an atmosphere of mutual cooperation. The aim should be to achieve shared financial objectives and 'win-win' solutions to problems.

Changes should be avoided but where necessary, priced in advance.

Milestones for interim payments must be clearly defined and compensation for slow payment prescribed.

Conflict on site should be avoided but speedy resolution processes defined

PROCESS (Recommendations 13-19 pp47,49,51,57,60-2)).

A team must be assembled, under a leader or project manager, of consultants and contractors able to provide the necessary competence, the required quality of work, and appropriate but competitive prices. This has to be done in ways that are not restrictive but which avoid the risks of taking the lowest price as the only criterion of selection and which are appropriate to public and private sector situations. Longer term, partnering arrangements should be considered.

ENABLING INDUSTRY (Recommendations 20-24 pp70,72,75,78,80)

In support of these matters, there must be appropriate consideration by the relevant bodies of: 

training professional education image of the industry equal opportunities facilities for research and development productivity

LEGISLATION (Recommendations 25-9 pp84,91-2,97,103,106)

There is need for hard legislation to regulate practice on the following major matters:

creation of unfair conditions by the alteration of the envisaged standard contract documents ensuring that all disputes arising during construction are referred to adjudication and that arbitration and legal proceedings can only take place after completion

creation of trust funds to be used in case of insolvency liability post construction latent defects insurance

IMPLEMENTATION (Recommendation 30 p109-10)

If the Report is accepted machinery should be set up to facilitate progress including:

a Standing Strategic Group of the Construction Industry 

an Implementation Forum

In commending his Report, Sir Michael Latham emphasized that its aim was to help clients to obtain the high quality projects to which they aspired. This required better performance but with fairness to all involved. As the Dodo says in Alice in Wonderland, everyone must win and everyone must have prizes. The prizes available are enhanced performance in a healthier atmosphere, deeper satisfaction for clients, and a brighter image and better rewards for a great industry. Three reactions are possible: rejection of the Report, picking out the sections which suit oneself best, or endeavoring to make the package work. `The time to choose has arrived' Latham 1994 p v).

5.2 Scriptural Materials: The Mosaic Law in Exodus and Deuteronomy

Exodus is concerned with the life and experience of Moses, including his birth in slavery in Egypt and his leadership of the Hebrews in the wilderness. Deuteronomy was probably compiled within the land of Israel in the time of King Josiah and of the prophets. It is a guide for living positioned in the teaching of Moses. Thus we can see Moses from two points of view. Both are concerned with how God's people should live and come to enjoy the blessings of the law, the torah. Law in this sense is that which makes life enjoyable and workable; it is a much fuller concept than mere legislation.

Exodus

The text is a compilation finalised in the time of Ezra (5th/4th centuries BCE) of material from three main sources and viewed from a later perspective. The first fifteen chapters are concerned with liberation. Moses is born, educated, leaves Egypt for Midian, starts work, and is married. He is confronted by God and sent back to Egypt to bring his people out of slavery. Pharaoh responds to Moses' efforts by requiring the slaves not only to make bricks for whatever structure was being built but to gather their own straw as well, without the production targets being lowered. (5:1-Z 1). After much argument and many plagues inflicted by God on Egypt , the escape was planned urgently, the Israelites marking the lintels and doorposts of their houses with blood. Israel passed through the sea and their Egyptian pursuers drowned. '...the escapees walked on dry ground through the sea, the waters forming a wall for them on their right and on their left. The Lord saved Israel that day......'. (14:29-3()).

The second part of Exodus is concerned with concepts of covenant. It begins with the journey from the Red Sea through the wilderness to Sinai. Moses is depicted establishing a structure of men `who fear God, are trustworthy and hate dishonest gain' capable of settling disputes, leaving himself free to teach. (18:13-23). At Sinai, the decalogue (the ten commandments) is given with its injunctions against idolatry, the misuse of the name of God and of the Sabbath, and the commands to honour parents and not to practise murder, adultery, stealing, false witness or coveteousness (20:1-17). There then follows material setting out detailed procedures for a simple society and for the construction of the Ark of the Covenant in materials of value. Stone tablets with the commandments inscribed on them are placed in the Ark. The first part of Exodus establishes the constitution of Israel and the second its status as a spiritual entity . The central point is that in Exodus dialogue takes place between God and Israel . Fokkelman (1997) says'.  

`The dialogic being of God, already evident in the creation of man in his own image and reflected in the man-wife dialogue [of Genesis], culminates in Exodus when God assigns exceptional status to his covenanted people: "And ye shall be unto me a kingdom of priests and an holy nation" (19:6a) The blessings of the patriarchs that are so characteristic of Genesis are crowned in Exodus with the so-called covenant formula, two clauses of characteristic reciprocity: "And I will take you to me for a people, and I will be to you a God" (6:7)         (Fokkelman 1997p64).

Deuteronomy

Deuteronomy is a presentation by an anonymous narrator who presents utterances from Moses. God and, to a small extent, the narrator himself. The first speech of Moses (1:6-4:40) begins at Horeb (Sinai) and reviews the experience of the wilderness. the taking possession of 'the land' and the importance of the moral law: `.... I now teach you statutes and ordinances for you to observe in the land that you are about to enter and occupy. You must observe them diligently for this will show your wisdom and discernment to the peoples ....... (4:5-8). In his second speech (5:1-28:68), Moses looks to the future and presents the decalogue: `..... For six days you shall labour and do all your work.... You shall not... steal. Neither shall you bear false witness against your neighbour....... Neither shall you desire your neighbour's house...' ( 5:12 -21). As you go into the land to possess it remember, 'The Lord is our God.... the Lord alone...... Keep these words that I am commanding you today... and write them on the doorposts of your house and on your gates'. (6:4,9). The law must be kept in its entirety: 'Keep then this entire commandment that I am commanding you today' (11:8); if you do keep it entirely then you will receive the blessings of rain and food. (11:8,13-4). Financial dealings within the community should be marked by the forgiveness of debts every seven years. Given this generosity. Israel will be rewarded so that she need borrow from no one but be able to lend to many. (15:1-6). Only on loans to foreigners should interest be charged ( 23:19 -20). In everything, obedience will lead to blessing: 'Blessed shall you be in the city, and blessed shall you be in the field'. (28:3).

However, the law was not obeyed^-, Moses' vision did not materialise. Blessings did not follow. The cause of this was disobedience and the outcome punishment. (29:18-28). Yet God is a God of compassion and even if the people go far into exile, he will restore them to their land and to even greater prosperity. (30:4-5). There is choice and the choice is Israel 's

`See, I have set before you today life and prosperity, death and adversiry........ Choose life.....' (30:15,19).

5.3 Comparison of Materials

Both sets of materials are concerned with the content and observance of what is in effect moral law and guidance. In the same way that torah is more than legislation, so guidance emanating from Latham is richer and more varied than legislation alone would be.

Behaviour and benefit: Choose!

Buildings are procured by clients by means of a contractual process. That process joins the client to an interlocking set of consultants, contractors, sub-contractors and specialists. The main elements of the process are determined by bodies representing clients and the various sectors of the building industry. Some elements are appropriate for enforcement by law. The system is finely balanced. If it becomes out of date, or if parts of it are misused by powerful parties for their own ends. or if a particular facet. such as price, is given disproportionate emphasis, the whole system starts to become chaotic, litigious and unjust. The system is dynamic, always adapting to slightly new elements in its environment, yet always trying to hold on to practices which, experience suggests, are beneficial to all the parties. This process of adaptation is not continuous and smooth, because standard processes and documents, as well as legislation, are introduced at particular times. The Latham Report is a review made at this time in order to address an accumulation of problems and dissatisfaction, affecting the well-being of many and, because of international competition, the actual livelihoods of some. This is a time of reckoning; there have to be new ways forward.

Likewise. Deuteronomy came at a time of review and reckoning for Judah . Certainly since the time of Solomon. life in the new land had been a mixture of success and failure, blessing and curse. Some reigns had epitomized good times and some bad. Quietness, belonging and freedom were superseded by conquest and fear of exile. The issue is how things can be put right, how the system can recover its balance. The answer is to bring into the present the story and teaching of Moses. Leave to one side, the Deuteronomists argued, the kings and their ambitions and politics, and go back to the true leader and the true torah. To do that will bring blessing and even if things still go wrong, there will still be the possibility of blessing.

Both Latham and Deuteronomy, in the context, respectively, of a modern industry and of an ancient, tribal people, offer for acceptance or rejection, an integrated package of reform, which, if followed, will make life better for all involved. Both exclaim 'Choose'!

Oppression and liberation

Exodus is more raw. It goes back to slaves working in the brickyards of their conqueror and being further oppressed when they wish to go to worship their God in the wilderness. God himself eventually works their release and gives them the status of his covenanted people. There is no conditional `If..... and then.....'. The law is part of the covenant gift and the response has to be obedience. While Latham makes mention of the earlier Simon and Banwell Reports, he is not concerned with the past. It is possible to read the nineteenth and the first half of the twentieth century as times of oppression at least for the workers in Building. Their hours were long, their wages low and their employment precarious; for at least half of them, the work was unskilled labouring. (Powell 1980 pp164-8). Now, most workers are either self-employed or in specialist firms carrying out relatively high technology work. The problems which Latham addresses of delayed payment and inadequate payment for varied work, while extremely serious both financially and morally, are arguably not as basically oppressive as the situations of earlier times. Therefore, while the actual Latham Report is more circumscribed than Exodus, the issues, when seen in a wider perspective, are similar.

5.4 Historical Continuities

Fitness, for purpose

At the beginning of his Report, Latham states that the objective of clients will normally be to

obtain a building that is:

1. value for money                              

2. pleasing to look at

3. free from defects on completion       

4. delivered on time

5. fit for the purpose                           

6. supported by worthwhile guarantees

7. reasonable as regards running costs  

8. satisfactory as regards durability

(Para 3.2 p 11)

The whole of the Latham concept is to define systems of procurement and contract to enable these objectives to be met in ways that are appropriate for the particular situation. The most direct reference to good building practice in Exodus and Deuteronomy is this:

`When you build a new house, you shall make a parapet for your roof; otherwise you might have blood-guilt on your house if anyone should fall from it.'                                                        (Deut 22:8)

The significance of the roof in the period of the monarchy is made clear by Fritz (1995). Roofs were used for drying and storing agricultural produce, and for sleeping. As they were of a simple construction it would be necessary to repair the earth or mud covering after rain. It is inferred (but not proven) that additional rooms were built on the roof. Although the householder built his own roof, the issue of safety and fitness for purpose is, at the level of human safety, the same as for the professionally constructed roof. (Fritz 1995 pp141-2) Webber (1996 p280) links this philosophy of care expressed in formal legislation with that which can be traced through the history of building control legislation in England from the 12th to the 17th centuries and, after a laissez-faire interlude, from the London Building Act of 1844 to the present. While, for Latham, this is no more than a background issue, nevertheless it is a basic connection with Scripture.

Medieval contractual scenarios

Building practice comes closer to the Latham-like scenario in the medieval period. Erlande-Brandenburg (1993 pp161-3) shows how the contract for the building of the nave of Fotheringay Church, Northamptonshire was made in 1435 between commissioners for the Duke of York and William Horwood, free-mason. Most of the document is an architectural description of the work to be done by Horwood with materials and equipment provided by the Duke but, in addition, it prescribes payments to be made on completion of the excavation (for which he takes all responsibility), on completion of the walls up to lft above ground, and thereafter foot by foot until completion and the contracted sum of £300 has been fully paid. The contract continues:

'And if it be that the said William Horwood not make full payment to all or any of his workmen, then the clerk of the work [as agent of the Duke] shall pay him in his presence and stop as much from the said William Horwood's hand as the payment amounts to that shall be due to the workmen.'     (Erlande-Brandenburg 1993 p163)

In this contract, the client is ensuring that the workmen are not penalized because the `contractor' does not pay them their money when he himself has received it. Latham reports a survev of sub-contractors which showed a satisfaction score of oniv 5.2 out of 10 on terms and conditions and only 4.8 out of 10 when it came to the handling of contra payments. He recommends legislation to prevent the introduction of unfair conditions by main contractors through the unilateral alteration of agreed standard sub-contract conditions. (Paras 8.1-8.9 pp81-4). Both the Fotheringay contract and Latham are consistent with Deuteronomy:  

`You shall not withhold the wages of poor and needy labourers, whether other Israelites or aliens who reside in your land in one of your towns. You shall pay them their wages daily before sunset because they are poor and their livelihood depends on them; otherwise they might cry to the Lord against you, and you would incur guilt.'        (Deut 24:14-5 ).

5.5 Ethical Discussion

In this Section it is the ethical connection between Scripture and Building that is central. The connections are not static; the process is ongoing. The torah, both within and beyond Scripture, is not a legal text but a living tradition. As Latham evolves from the text of the Review into legislation and the practices of the industry, it too is part of the evolving, ethical tradition.

Situations to be changed

Latham, although it does not use the words `ethics' and `ethical' at all, is an articulation of ethical practice marked by justice and fairness. Israel 's vocation as the covenant people was to express the love, justice and mercy of God in terms of concern for neighbour, that is, in terms of moral living. That was achieved not just by chiselling the right words on the tablets of stone (2 Cor 3:7) or writing them into the legislation or procedures, but in developing a strong ethos and culture which permit the full implementation of what is firmly and widely believed to be desirable.

Israel spent time in the wilderness, journeying by stages, camping, quarrelling, regretting having left Egypt , and experiencing problems with food and water. Moses and Aaron were subjected to much criticism. (Ex 16:9-17:7). It was only after the long period of wandering that they came to Sinai where God revealed the law by which he was calling them to live. Building is an itinerant industry. The workplace can be anywhere. Even when the best practices for selection are followed, the group of firms working on a project is likely to be marked by the fears and uncertainties that are very powerful when people have not all worked together before. They quarrel; they are worried about the `food', of information that it is necessary to have in order to know what has to be done, and the 'water' of money; everything is staged as a drama; everything has the temporariness of the camp. There is so much uncertainty; and often everything is dependent on many other things. This was explicit in the 1966 report Interdependence and Uncertaintv. fl Study of the Building Industrv (1966 The Tavistock Institute).

In the case of Israel , the resolution of the problem is in the figure of Moses. Miller (1987) indicates that in Exodus Moses is presented as the hero and leader of the people solving the practical problems, while in Deuteronomy he is the much more complex figure. who comes as the bearer of God's word. That makes him a teacher. `The teaching that Moses does is in no sense the neutral communication of material, like a mechanical copier; it is an intense effort to elicit from his audience a response of obedience. Moses seeks at every turn to convey, explain, and also stir the heart to respond to the divine instruction, to follow the way that is set forth.' (Miller 1987 p247). He is prophet like no other, mediating the power of God.(Deut 34:10-2). He is the intercessor who pleads with God, causing him to change his mind about the disaster he was to send (Ex 32:14). And he is the suffering servant of God, bearing the brunt of God's anger and not living to be the leader at the time of entry to the new land (Deut 34:4). Nothing comes easily - not in Egypt , not in the escape, not in the wilderness, not at Sinai, not on the borders of the land, and paradoxically and most of all, not in the land from the time Joshua to Josiah and beyond.

While Latham alone was responsible for the recommendations he made in his Report, the decision to publish and seek implementation was that of the sponsors and parties involved. While Latham is much involved in this latter stage of the work, it is only as one among many. The debate and implementation stage is collaborative, and not simply an event but a complex and extended process. The process has involved teaching and explaining, prophetically bringing insight to bear, contact between interest groups enabling minds to be changed, and sometimes confronting inability to see the benefits expected to arise in the longer term.

Theoretical evaluation

There is theoretical criticism to be evaluated. Cox and Townsend (1997 p144) question Latham's consensus approach to reform, because it is unlikely to provide any radical opinions or solutions. They argue that the kinds of solution proposed are only likely to be applicable to the relatively few clients who are continuously working with the industry and who, therefore, can build long-term relationships. In their view a more rigorous approach needs to be taken in identifying forms of relationship that are likely to produce fitness for purpose. McDermott and Quinn(1995 p45) argue that for effective change to be achieved, the institutions (representative bodies) of the industry must undergo fundamental change and development. In particular, they as institutions must learn to trust each other before their members can trust each other in particular project relationships. New organizations set up as a result of the Latham process must be built in such a way that they can earn and be given trust if anything effective is to be achieved..

Despite their differences, both Latham and his critics are concerned for the future well-being of Building. The purpose of Scripture is to capture and interpret the past in such a way that it can be formative of future well-being. The experience of Israel portrayed in Exodus can be

interpreted as salvation history stressing the saving acts of God, or as liberation experience, stressing freedom from oppression. Both approaches emphasize what God has done and imply that ethical behaviour is response to that. Birch (1995) argues that much more meaningful for today than God's acts is God's character. Exodus can be interpreted as revealing God's character. Israel is a community of character, a character that responds to God's character. Similarly, it can be argued that organisations concerned with the interpretation and implementation of Latham need to be organisations of appropriate character. That character has to develop authentically. Resonating with Exodus, McDermott and Quinn (1995) argue that development of the new Construction Industry Board must enable it to pursue the common good, the common well-being.

Understanding trust and developing relationships

In Exodus, God brings Israel out of Egypt under the leadership of Moses, in the face of great difficulties and by the use of extreme measures including the sending of seven plagues on Egypt . That was the foundation demonstration of the character of God. It was a creative act. It was setting off something that was new, a special people who would lead a special life, for a special purpose. Israel would come to see that what they were being chosen to do was to trust God, to live in a way that recognized what a moral community was and to work for its common good.

As Part of the Latham process, Building is having to learn about trust and how to trust in appropriate ways. Gambetta (1988) provided a collection of papers which showed the various ways in which trust can be viewed. First it can be viewed as a commodity that can be developed through repeated encounters, remembering what has happened in previous encounters; honest behaviour carries some cost; and behaviour affects reputation (Dasgupta 1988 p59). Latham ( Para 6.47 p62) recommends the prudent use of monitored partnerships to build up relationships.

Second, trust is related to risk; the more aware we are of risks, the more we have to consider the course of behaviour we and others will take. This is a comparatively modern phenomenon:  

^-Only in early modern times did a new term (riesgo, rischio, risk) appear to indicate that unexpected results may be a consequence of our decisions, and not simply an aspect of cosmology, an expression of the hidden meanings of nature or the hidden intentions of God. This discovery of `risk' as a general feature of life - roughly replacing what had previously been known as fortuna - ....... adds another dimension to human experience. It becomes ever more typical and understandable that decisions cannot avoid risk. Such awareness of risk - the risks of technological development, or of investment, of marriage or of prolonged education - is now a very familiar aspect of everyday life, but it does not necessarily convey a cosmological or religious meaning. Secrecy, and therefore dissimulation and distrust, are no longer the essence of life and of prudence, but trust is bestowed at your own risk. (Luhmann 1988 p9b). 

The implication of this is that Building in the era of Latham is an open process: people are educated enough to understand the risks of building on contaminated land because it is socially desirable to do so; developing innovative technologies for managing temperature, humidity^,. fresh air and other environmental conditions in buildings; and investing in development in, say, China . Understanding the risks, we manage them in part by judging whose competence we trust and whose behaviour we trust. This is much closer to the Scriptural scenario where Israel 's relationship with God is played out visibly than it is to medieval scenarios of fortuna.

Third, Good (1988 p45) argues that if trust is to be valued highly, contracting parties - whether for this dissertation's argument, firms carrying out a project or representative bodies designing and implementing a system - need to have a high level of knowledge of each other's background assumptions and belief systems. This goes right to the heart of the situation in Building. Latham quotes one of his correspondents:

`I believe the only way we will engender the "right spirit" within the industry is by being more cohesive and better educated. I am not a supporter of the "totally integrated" degree course since there are differences between arts and science students which should be built upon, rather than amalgamated in the hope of producing the all rounded "construction" graduate....... I would try to integrate the disciplines more by having graduates work together, particularly in their later years, when they can be of use to each other........'

(Letter from Mr. Peter Rogers of Stanhope..... Para 7.29 p74)

While matters relating to specialists are not an issue - and may be anachronistic - in the context of Exodus and Deuteronomy, the matter of the cohesive society is an issue. The cohesion achievable, subject to human limitations, through right relationships is qualitatively different from the short-term cohesion achievable by the worship of an idol such as a golden calf. (Ex 32:7-24).

The earlv implementation of Latham

Quoting The Financial Times of 19 July 1994 , King (1996) reported from the US that Latham's Report had, on publication, received `almost universal praise'. In October 1995, Latham himself reviewed progress:

The Construction Clients' Forum had been set up and was putting the client at the heart of the construction process.  

The Construction Industry Board had been set up with the Secretary of State for the Environment as President and, normally, chair.

The Department of the Environment had accepted the role of lead Department for Government becoming a best practice client

Crucial Treasury support was indicated in the White Paper Setting New Standards; emphasis was placed on the importance of the intelligent management of risk and on considering matters such as managerial capability and quality assurance in the selection of contractors rather than only short-term initial cost.

The National Audit Office had made 12 favourable references to the Report.

The industry's joint contract committees were beginning to work on the recommendations 

      that formed a critical element in the Report.

Working Groups were making good progress on:

1. clients' guide to briefing

2. construction strategy code of practice

3. selecting sub-contractors

4. developing a register of specialist consultants

5. reducing the cost of tender qualification procedures

6. training

7. image of the industry 

8. equal opportunities

9. professional education

10. legislation on liability, law reform and latent defects insurance

11. reducing costs by 30%

12. partnering

(Latham 1995 pp5-8)

Legislation

The most vexed part of the Report concerned legislation to underpin certain of the key recommendations. After discussion bv the Construction Industrv Board and its interim predecessor, the Review Implementation Board, the Conservative Government introduced provisions in the Housing Grants, Construction and Regeneration Act 1996. After much negotiation it was agreed that these should come into effect for contracts made on and after 1 May 1998 . The Labour Construction Minister, Nick Raynsford, comments (Building 17 April 1998 p25) on both the positive attitudes taken by the parties involved and the difficulties overcome. The negotiations resonate with the complaining in the wilderness against the leadership of Moses and Aaron. (Ex 16:2). Latham himself says: `Nick Raynsford....... realized he would never achieve total agreement, so he put the scheme before parliament and told the industry to make it work.' (Building 17 April 1998 p26).

The legislation does three crucial things which can be summarized in the broad and general terms appropriate for this dissertation as follows. The legislation defines what a construction contract is; it sets up a procedure for the adjudication of disputes under construction contracts: and it sets out an equitable system for payments under construction contracts. In simple terms, a construction contract is any written (widely defined) agreement involving any two parties from the range of client (apart from residential occupiers), consultant, contractor and sub-contractor/specialist. Any party can refer a dispute for resolution and this must be resolved within 28 days by an impartial adjudicator. unless both parties agree otherwise or the adjudicator has the agreement of the referring party to extend the time. Where work is to take longer than 45 days, stage payments must be stipulated or a 28-day payment cycle adopted and payments made within 17 days with the final payment no later than 30 days after the completion of the work. These financial provisions both increase fairness and improve cash flow. It is anticipated that normally-used contracts will embody these requirements. Where a contract does not do so. a Government Standard Scheme will apply. (Building 17 April 1998 pp26-7).

At the time of writing (June 1998), it is impossible to say how the legislation, and indeed all that has flowed from Latham, will affect the practice and prosperity of the building industry and its clients. Contemplating the new payment provisions, Delves (1998 p150), a lawyer, sees it all as an administrative burden of questionable benefit, as the crucial question of how much is to be paid is not adequately addressed. In relation to the adjudication procedure, Minogue, another lawyer, says 'But if you have a rapid disputes procedure, you have more disputes.' (Building 17 April 1998 p36). In the same discussion. Price, the Director of the National Contractors' Group says ^-The act is very good and sensible'. (Building 17 April 1998 p36). Latham himself has the hope of a prophet when he says `..... a new spirit is now abroad among clients and industry. We do not need to listen to fearful people who would have preferred the chaos to continue.' (Building 17 April 1998 p27).

The ultimate implementation

Ultimately, implementation is in the commitment, enthusiasm and rooted realism of networks of people. In March 1998 the Ridley Hall Foundation ran a seminar on `Establishing Trust in the Construction Industrv'. A client, a main contractor, a specialist contractor, a consulting engineer and an architect each presented a viewpoint. Each was currently practising or had very recently been practising. Each presented a realistic but forward-looking and hopeful scenario. The architect's had the practical but conceptual approach that seemed to fit best with the perspective of this dissertation. He made seven points:  

1.       Seek the unity of the 12 tribes around the tabernacle. each different but acting as one.

2.       Do not avoid confrontation; convict but do not condemn; go forward together.

3.       There will always be problems; it is attitude to them that matters.

4.       Change is here to stay: be flexible^-, bring intelligence, innovation and integrity to bear; remember that cooperation does not have to mean compromise.

5.       Use flagship projects to illustrate new systems and cultural change

6.       Risk, fear and losses are endemic; but have a year of jubilee in which all debts outstanding are paid and the financial burdens of the past no longer passed on to new clients.

7.       Be committed to one another and to the whole building industry; celebrate who we are and where we are; encourage one another!

That is Scripture mediated through a particular person, in a particular role, at a particular time: a conjunction of Spirit and Word. Bird (1997 pp38-9) looks to future generations. He is at best lukewarm about the Latham process and the legislation. A poor culture cannot be legislated awav. There has to be education for a new culture. `... an industry's culture can be defined as the shared beliefs, values and assumptions that make up the dominant mind-set of the industry's members...... Endlessly refining conditions of contract and contract forms will not solve the industry's cultural problems. The remedy must lie in the training of the next generation.... °.

5.6 Metaphorical Interplay

Ethics and monev

As an opening comment to the Ridley Hall Foundation seminar, Sir Michael Latham said that he had never tried to persuade people in Building to act in support of his recommendations for ethical reasons: he always used commercial reasons. At the beginning of the Report (Paras 2.1-2.7 pp7-9), he pointed out that economic factors lie behind many of the issues addressed. The industry is dependent on general economic stability. If the flow of work to the industry is less than the capacity available, a number of undesirable consequences follow:

•    firms will reduce their staff or may close all together;

•    fee bids by consultants will probably become keen, and may not allow the successful bidder to make any profit out of the commission;

•    tender prices submitted by contractors will be uneconomically low, with adverse effects on all participants in the construction process;

•    training and education will suffer;

•    little money will be available for research and development or for enhancing the public image of the industry

The Deuteronomic theme is that true and complete love of God leads to the blessing of

economic well-being:

'Hear O Israel : The Lord is our God, the Lord alone. You shall love the Lord your God with all your heart, and with all your soul. and with all your might. Keep these words that I am commanding you this day in your heart......... write them on the doorposts of your house and on your gates. When the Lord your God has brought you into the land.... a land with fine, large cities that you did not build, houses filled with all sorts of goods that you did not fill, hewn cisterns that you did not hew........ take care that you do not forget the Lord your God, who brought you.... out of the house of slavery. The Lord your God you shall fear_ him you shall serve.......' (Dt 6:4-6,9-13).

Therefore, both Latham and Deuteronomy are doing the same thing. They are advocating ethical, responsible and sensible behaviour and linking it with economic well-being. In doing this, they are going a long way towards saying that practising ethical behaviour and seeking and enjoying economic well-being for oneself and one's industry and society, are two sides of one coin. Both are the gift of God. The moral law. the torah, is gift and so are the houses and the goods which come with a moderate prosperity - not the greed and excess that angered the prophets.

The creation and enjoyment of economic well-being pre-supposes, in all but the most primitive societies, the existence of money. Furnham and Argyle (1998 p6) point out that while `Money is, in and of itself, inert....... everywhere it becomes empowered with special meanings, imbued with special powers'. In our particular case, we are saying that one of these special powers is to embody the meaning of the relationship between ethical, just, fair and responsible behaviour in Building with the enjoyment of many things, including houses and homes. We may or may not want to go so far as Monsignor Ralph Brown in saying that `Money is as much a reality as the Blessed Trinity'. (Furnham and Argyle 1998 pl).

The concrete form of money is the coin. It is the coin, the pound or ECU in one's pocket, that makes it possible to envisage the reality which is complex, abstract and profound. The two-sided piece of metal, properly understood, becomes a metaphor, given our argument, for the inseparable ethical behaviour and blessing manifested in economic form. When Latham talks to the building world in the language of commerce, he is talking about money and about firms being in a position to pay appropriate wages and dividends, in order that life may be enjoyed. The concrete image is that of acquiring in an ethical and just commercial and contractual context, sufficient coins to yield the blessing.

The outcome of this interplay is that money is a metaphor of deep meaning for the good ­torah-like legislation and guidance on good practice that can emanate from reviews such as Latham's.

Law/code/torah and community

Both the Building scenario and the scriptural considered in this Section, are living communities with important aspects of their life documented. In the case of Latham, the documentation in legislation, codes of practice and other material, is for the present community. In the case of Scripture, the documentation is for whatever community gathers around it, at whatever time. Although the relationship between Latham and its community is short-term because new situations will arise requiring new documentation, it is not discordant with the kind of relationship between Scripture and its community. In neither case can the community exist without the documentation. Scripture is Scripture because communities accept its standing. The community of those who procure and provide buildings is identified by its engagement with the system embodied in the documents. In the case of both Latham and Scripture, community and documentation are metaphors for each other.

The second stage in the argument is to consider whether each community/documentation entity is a metaphor for the other. The scriptural entity has no practical meaning unless its meaning is expressed in specific, contemporary entities, such as Latham. The Latham entity is both contemporary and temporary. That by itself does not mean that it is meaningless but it does mean that. unless it finds an anchor, it will drift on the sea of time. The scriptural entity can give it such an anchor because the two entities are not inconsistent in terms of the essential economic/commercial and ethical relationships within them. It can be concluded that they are metaphors and that together they enable us to understand more clearly word (or Word) - community relationships.

5.7 Emergent Axiologv

`Systems' arrd the common good

This Section is the most impersonal of the series of four of which it is the third - Section 3 related to particular building scenarios, Section 4 to the specific and social issue of housing in relation to prophecy and Section 6 will develop fully the concept of the individual professional. This Section has been about procurement and contractual systems, that is about how the world of Building - including its clients - orders its life. That has been explored in association with the way Israel sought to order its common life on the basis of the story and teaching of Moses, and of the torah. There could have been no Israel without the torah and the figure whose identity is bound up with it. Similarly, there can be no Building without a valid and viable philosophy and system of procurement and contractual arrangements, embodied for the moment in Latham and what has flowed from it.

What this points to is the importance of `system'. To be good, a system must embody good values so that it can itself be highly valued. It follows that care,for the `system' and care of the 'system' is a critical area of professional responsibility. Such care must relate to the system as a whole, to the common good. This involves recognizing that money is not something to be greedily acquired but a metaphor for the closely-related ethical and economic values at work in the system.

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