NDA: Confidential advice allowed
The government last week closed what campaigners called a “small loophole” to ensure that non-disclosure agreements (NDAs) do not prevent victims from accessing legal and other advice relating to criminal conduct.
Changes to the law will also ensure that NDAs cannot be legally enforced if they prevent victims from reporting a crime – a provision ministers first promised five years ago.
Further, disclosure will be permitted to certain groups providing it is relevant to criminal conduct and for the purpose of reporting a crime or accessing support or advice.
Those groups are: police or other bodies which investigate or prosecute crime (again promised in 2019); “qualified and regulated” lawyers; and other support services such as counsellors, advocacy services or medical professionals which operate under confidentiality principles.
The legislation will be introduced “as soon as parliamentary time allows”, according to the Ministry of Justice.
Lord Chancellor Alex Chalk said: “We are bringing an end to the murky world of non-disclosure agreements which are too often used to sweep criminality under the carpet and prevent victims from accessing the advice and support they need.”
Victims and safeguarding minister, Laura Farris MP added: “Sexual harassment is unlawful in the workplace, and it is unacceptable that a few unscrupulous employers have previously sought to construct confidentiality clauses in settlement agreements, that suggest victim cannot report a crime to the police.
“This has never been the case and today we are making that crystal clear in law.”
Both the Law Society and Bar Council welcomed the move. Law Society president Nick Emmerson said: “The government should also legislate to ensure limitations in confidentiality clauses are clearly set out in employment contracts and settlement agreements and to enhance the independent legal advice received by individuals signing confidentiality clauses and NDAs.”
Bar Council chair Sam Townend KC said the legislative change should aim to put these matters – which were already unlawful under the common law – “beyond doubt”.
“Getting the wording and definitions right will be important and we look forward to working with the government and others on this.”
Zelda Perkins, co-founder of anti-NDA campaign group Can’t Buy My Silence, said that although this was “an important step” in recognising the harms that current NDA practice caused to victims of crime but said it was “only a small loophole” being closed.
She continued: “As we know, NDAs are already unenforceable if concealing a crime and although this amendment and the publicity surrounding the issue will help with public education and lawyers awareness, it does not solve the larger problem.
“This is especially true for those currently being gagged as the change will not act retroactively.”
Ms Perkins said that, although the amendment went some way to meet the 2019 pledges, “there is still much more work to be done”.
“Can’t Buy My Silence will be working to push legislation closer to the Higher Education (Freedom of Speech) Act and the legislation in Ireland, Canada and America where the use of NDAs is more strictly curtailed and I will continue to ask the government and UK legal regulators to look at how best to protect the integrity of law in the complex area of confidentiality being used to protect reputation over wellbeing.”
Ms Perkins is the woman who first broke a Harvey Weinstein NDA, and she co-founded CBMS with Dr Julie Macfarlane.
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