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However, what underlies all of the detail is a simple and reasonable requirement that our members should be able to know with certainty how much they are going to be paid and when are they going to receive it.

The existing legislation provides the payer with a right to determine the amount that he intends to pay and an obligation to tell the payee what that amount is and how it has been determined. Without this notice, the payee is disadvantaged because it doesn’t know whether there is a dispute and, even if there is, what the areas of disagreement are. Going to adjudication in these circumstances is like going to trial without having seen the defence; in other words, failure to notify severely undermines the effectiveness of the process.

The question, therefore, is what happens if the payer fails to provide this information. The answer at the moment is - nothing! This is the fundamental flaw within the existing legislation.

The debate has centred on whether there should be a sanction when the payer fails to notify the amount that it intends to pay and I can see absolutely no reason why this should not be the case. Failure to notify is a breach of contract that disadvantages the victim of the breach. It simply cannot be right that the payer should be allowed to benefit from its own breach in this way. Without a sanction, any changes to the legislation will be of little practical effect.

The importance of this issue has become more widely recognised as the consultation has progressed and there has been widespread support for the introduction in principle of such a sanction or default position; in fact the only remaining opposition is from those sectors that are payers more often than they are payees. The case for a default position is so compelling that the debate should move away from whether there should be one and instead start to consider what form it should take. We hope that the government shares this view.