I should be careful what I say, because I shall now offend some members of what is known as the libel Bar. I am not a proper defamation lawyer, although I have dabbled in it. My dealings with my colleagues at the libel Bar have led me to conclude that the great technicality and obscurity of elements in the existing law are no fault of the judges but are very much the fault of my colleagues who have enjoyed very inward introspective legal practices that have added to the problems. In the framework we now have, it is extremely hard for the judiciary to cut
out the nonsense that is there as a result of my fellow practitioners. I am sorry to defame a group of them, but there it is.
The other thing I wanted to say, which my noble friend Lord Faulks has referred to, is about the unsatisfactory idea of focusing on the company as though the company is a monolithic concept. If you focus just on the company, you leave out all kinds of other powerful bodies that are not companies at all: a trade union is a good example, although that has been dealt with in the case law in a particular way; many unincorporated associations; and many bodies that are very powerful NGOs, for example. The problem with the word “company” is that it is both underinclusive and overinclusive. It is underinclusive because it does not catch other powerful bodies that are not in corporate form, and it is overinclusive because the little dress shop company that my noble friend Lord Faulks has in mind—a one-director company—is in a completely different position from McDonald’s. That is why it is fact-sensitive and can be dealt with by the judiciary only on a case-by-case basis.
The amendments that we are now considering do not trespass on the courts in overreach. They are dealing with one aspect of the problem. The holistic approach involves case management, procedural rules and guidance in order to counter the kind of problems that the noble Lord, Lord Triesman, had in mind.
I am therefore enthusiastic about these amendments, but they do not and cannot deal with the whole of the problem.