My Lords, the noble Lord, Lord Hunt of Wirral, is not here, but he made me think that I should have declared an interest at the beginning as a solicitor whose firm is Bates Wells & Braithwaite, which I now do. I have one general concern about these two amendments and one technical point that I want to make. The first issue has been referred to again and again, and it cannot be referred to enough; namely, the deeply unsatisfactory nature of libel and slander in terms of costs. None of us has much idea of what to do about it. Right from 1948, it was never part of the legal aid scheme, for perhaps understandable reasons. It has got worse as costs have risen faster and further, as the noble Lord, Lord May, among others, has said.
I hope devoutly that the good Lord Dyson will be bold in the way in which he looks at all this. As my noble friend Lord Lester has said, we need to think well outside the box. I also wonder whether there is the possibility of some insurance answer to this. For example, if all household policies had a libel insurance provision, the cost might be relatively insignificant when spread across the whole population.
In these two amendments, I am anxious about the ethical reputation of companies. The noble Lord, Lord Faulks, correctly drew our attention to that part of the Joint Committee on Human Rights report which distinguished between a huge, quoted multinational on the one hand and a small, owner-occupied, so to speak, business on the other, but I do not want to have a sheep and goats approach to reputation and corporations. I think that everyone in this Committee would agree that one of the great disappointments of the past 10 or 20 years has been the weakening of any ethical identity on the part of the great corporations. In the financial world, you can almost talk of a demoralised—literally de-moralised—community of companies where ethics and moral identity are now almost absent. I must confess that I do not want to add to that by saying that corporations can never sue in respect of an attack on their ethical identity.
One thing that one of the noble Lords who tabled this amendment might enlighten the Committee on is whether confining actions to where there is or is likely to be substantial loss can deal with the more difficult case. The noble Baroness, Lady Hayter, talked of the Perrier case, in which the loss was pretty direct, obvious and immediate. However, there are many other situations where serious defamation would be extremely difficult to calculate in terms of any direct financial consequences. That concerns me, because I want corporations to re-enter the world of ethics. They have a character and a personality—or they can—and therefore I am anxious about them.
My last point is in respect of Amendment 8(3), which mentions “for profit” organisations and then goes on to exclude charities, non-governmental organisations or other non-profit making bodies from this limitation. This point concerns the drafting only. Many charities and NGOs are profit-making, but not profit-distributing. I think that subsection needs to be changed, because a charitable hospital, for example, needs to make profits in order to invest in equipment, buildings and so on. That is well accepted and entirely
consistent with charitable status, but, of course, such an organisation is not profit-distributing. That is a technical point.
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