Telegraph Editorial

‘The Metoo movement has been like a breath of fresh air, exposing the harassment that has gone on for too long in too many workplaces. There has been a cultural shift in many companies, too, with bullying rightly recognised as both unacceptable on its own terms and deleterious to employee performance … Britain’s laws are a long way from keeping up with this change in attitudes. As The Telegraph has said repeatedly, NDAS in their current state are not fit for purpose.’

Successful businesses deal with racial abuse and harassment openly – they do not pay for them to go away

It is the latest in a long line of cases in which judges have found in favour of privacy, secrecy and confidentiality

Sir Philip Green, named by Lord Hain in Parliament as the businessman who had used non-disclosure agreements (NDAS) to suppress allegations of sexual harassment and racial abuse, has denied “unlawful sexual or racial behaviour”. Refusing to comment on “anything that has happened in court or Parliament”, the billionaire retailer’s response, in effect, is that he has done nothing wrong.

If the businessman is innocent of the claims against him, however, why does he not put out the facts for all to see? He could release the individuals from the NDAS so they can tell their side of the story. He could drop the injunction, secured at considerable expense, to permit full analysis of what happened. Instead, The Telegraph currently remains subject to that injunction, and so cannot publish any of the relevant material. The individuals who signed the NDAS, meanwhile, are prohibited from speaking out and the conduct of the businessman is still beyond proper scrutiny.

Such enforced silence is both unjust and completely contrary to the spirit of the times. The Metoo movement has been like a breath of fresh air, exposing the harassment that has gone on for too long in too many workplaces. There has been a cultural shift in many companies, too, with bullying rightly recognised as both unacceptable on its own terms and deleterious to employee performance. The precise behaviour itself may not always be “unlawful”. But successful businesses deal with racial abuse and harassment openly and transparently – they do not pay for them to go away. Bad employers, meanwhile, should not be permitted to bury their problems, not least so that no one unwittingly takes a job at a company in which such behaviour is tolerated.

Britain’s laws are a long way from keeping up with this change in popular attitudes. As

The Telegraph has said repeatedly, NDAS in their current state are not fit for purpose. They have legitimate uses in commercial situations, such as in mergers and acquisitions where it can be necessary to ensure that information is kept confidential. But it cannot be right for staff to feel pressured into signing them, for the law to be complicit in employers buying the silence of those alleging harassment or racial abuse, or for the individuals concerned to be unable to break these contracts.

We will continue to campaign for their urgent reform: at the very least, as the Prime Minister has said, it is important that employees are able to fully understand how they work.

The courts have done their reputation no favours this week, either. The Appeal Court ruling placing an injunction on The Telegraph is just the latest in a long line of cases in which judges have found in favour of privacy, secrecy and confidentiality – including of wealthy and powerful individuals – and against transparency, openness and the freedom of the press. It is a position that, if nothing else, looks farcical in a digital age in which information is so hard to control.

Moreover, as the original High Court decision determined, there is a legitimate public interest in publication in this particular circumstance that “outweighs any confidentiality attaching to the information”. Despite this, the businessman was able to spend close to £500,000 to take the matter to the Appeal Court, where contracts (of which this newspaper is not a part) were deemed to trump our right to report the facts.

The role of journalism in uncovering abuses of power is crucial. To listen to the BBC’S legal affairs editor Clive Coleman, you might infer that journalists should not be working to put such matters into the public domain. But that would be to take the supremely paternalistic view that these difficult questions are best left to be decided, behind closed doors, by unelected – often unaccountable – judges who are free to interpret the law based on their own, sometimes anachronistic, opinions. It is as if journalists, peers of the realm, or even members of the public are unqualified to challenge the justice of their deliberations.

We take a different view. It was only thanks to the brilliant work of investigative journalists at The

Telegraph, over a period of eight months, that the businessman’s use of NDAS to stifle allegations of sexual and racial abuse was uncovered. Our job is not to summarise what the mighty choose to put into the public sphere. It is to reveal all the facts, and to give our readers the opportunity to make their own judgment.

We make no apology for what we have done. The

Telegraph has always been willing to report on stories of this kind, from the MPS expenses scandal to allegations of corruption in sport, and to expose ourselves to risk in the process.

Sometimes the establishment gets it wrong and is unable to recognise when change is desperately needed. It is the job of a free press to point out when that happens.