Gagging orders are a tool for the strong to abuse the weak, warns Scottish Tory leader
There is a case for nondisclosure agreements, but not to hide bad behaviour away from the public’s eyes
GAGGING orders risk becoming a “tool for the weak to be beaten by the strong”, Ruth Davidson, the leader of the Scottish Conservatives, warns today.
Ms Davidson issued the warning after The Daily Telegraph revealed that Labour frontbencher Khalid Mahmood used a non-disclosure agreement to silence his Jewish assistant, who took him to an employment tribunal on the grounds of religious discrimination.
Ms Davidson said that the orders, known as non-disclosure agreements, are being used to protect the “rich and the powerful”. She called for Parliament to “look to its own” and investigate their use.
Elaina Cohen’s employment tribunal case was resolved in an out-of-court settlement. Her non-disclosure agreement bars both her and Mr Mahmood, her former lover, from discussing the matter publicly.
Writing in The Daily Telegraph, Ms Davidson says: “What happens when the power dynamic is asymmetric and the gagging clause is being used to protect the already powerful?
“In cases such as workplace bullying or harassment, the person agreeing to be gagged may feel pressured into doing so, while those demanding the gag are better resourced, have greater legal representation and can use that power to push people into silence.
“There is a tragic irony in cases where gagging clauses are sought because of an abuse of power, only for that power to be abused again to buy someone’s silence.”
Andrew Bridgen, a Tory MP, warned yesterday that the use of publicly funded gagging orders risks undermining a new Westminster complaints system. He said: “This drives a coach and horses through the new code of conduct. It is a way of circumventing the grievance procedure and code of conduct for MPS.
“If you pay off your staff with an NDA, paid for by the taxpayer, they can’t go back through the code of conduct and raise these issues. It doesn’t look right and it doesn’t smell right.”
Ms Cohen told The Daily Telegraph that she felt she had “no choice” but to sign the agreement.
While unable to discuss the detail of her case, she has criticised the use of expenses to fund Mr Mahmood’s legal costs – and praised the inquiry by the Women and Equalities Committee into non-disclosure agreements.
Mr Mahmood said that the parliamentary standards body Ipsa had been “fully aware” that extra money which he received for staffing costs was to deal with the fallout from the Cohen discrimination case.
When does a legal instrument, designed to help both parties, become a tool for the weak to be beaten by the strong? How can inventors, artists, patients or legal clients feel safe that their personal information or creative inspiration is protected, without also handing abusers the means by which victims can be silenced? And when it comes to the business of government, how much should the public be allowed to know – where should the line be drawn between transparency and confidentiality? The proliferation of non-disclosure agreements – legal gagging orders – has brought such questions of fairness, power, protection and security to the fore.
Yesterday, this newspaper covered the story of an MP who used public money to fight a discrimination case brought by his parliamentary assistant. Khalid Mahmood is an MP for the Labour Party and his assistant, Elaina Cohen, is Jewish. The employment case was brought on religious grounds.
Mr Mahmood’s costs of dealing with the claim were covered by insurance funded by expenses that he is eligible to receive as an MP. He also incurred £37,000 of costs in staffing cover for Ms Cohen as well as claiming several thousand pounds under the headings of “lawyer’s fee” and “legal costs” during the course of her suspension and the tribunal. Despite the costs incurred, the case was settled out of court and Ms Cohen has returned to work for Mr Mahmood.
When it comes to the resolution of the case, there is scant information. Part of the settlement required Ms Cohen to sign a non-disclosure agreement, or NDA. Such an order means that many of the facts of the case – and Mr Mahmood’s handling of it – will never come to light. The public will never know if £40,000 of taxpayers’ money was well spent, and Mr Mahmood’s constituents will have no possibility of finding out if there were issues here which might affect or alter their judgment of their MP, or even change whether they would choose to vote for him in future.
This case is not the only one where NDAS have been used to silence those alleging mistreatment. The Hollywood film producer Harvey Weinstein has frequently deployed NDAS as part of his response to those accusing him of abuse or harassment. Indeed, part of the “conspiracy of silence” that has been reported around Mr Weinstein’s alleged recurring behaviour has been less conspiracy and more legally enforceable concealment, combined with hefty payouts.
Last month, as part of a six-month inquiry into sexual harassment in the workplace, the Women and Equalities Select Committee specifically called for the use of NDAS to be cleaned up – for extra protections to be put in place to allow for whistleblowing and for the misuse of NDAS to become an offence. Committee chairman Maria Miller said NDAS “must not be used to prevent or dissuade victims from reporting incidents as is clearly the case now. We expect proper regulation of NDAS and that any unethical practices lead to strong and appropriate sanctions.”
Non-disclosure agreements are designed to keep information between two agreed parties safe from outsiders. The most common forms of NDAS are patient-doctor or attorney-client privilege. They are also used in business when parties are scoping out a merger or deal, and publishers regularly ask journalists to sign an NDA before handing over an advance copy of a book they’re due to interview a writer about.
Each of these seems sensible – ensuring protections are offered to the vulnerable or that intellectual property is respected. In a sense, these examples show how NDAS can work between equals, or serve to protect the weaker party.
But what happens when the power dynamic is asymmetric and the gagging clause is being used to protect the already powerful? In cases – such as workplace bullying or harassment – the person agreeing to be gagged may feel pressured into doing so, while those demanding the gag are better resourced, have greater legal representation and can use that power to push people into silence. There is a tragic irony in cases where gagging clauses are sought because of an abuse of power, only for that power to be abused again to buy someone’s silence.
Which brings us onto the fundamental question – who benefits? Where is the public interest in a private arrangement – even one entered into freely – concealing or suppressing facts, information and law-breaking that otherwise would be made public through the courts or a legally-binding tribunal process?
If we take the case of a serial abuser – say, a rich and powerful Hollywood producer – who uses his wealth, power and influence to buy off women he has abused, in whose interest is it that potential future victims know nothing of his behaviour? And what redress do those future victims have against the legal concealment of the abuser’s history?
Reform of NDAS is a legal minefield. In many cases it can suit both parties to draw a line under a dispute, or simply be cheaper and quicker to settle an issue out of court and, in the absence of a ruling in favour of one party or another, agree simply not to wash dirty linen in public at all.
But there is a real question about NDAS being used to prevent patterns of wrong behaviour from being established or recognised. Just because it’s hard to get the balance right, lawmakers still need to try to ensure proper protection for reporting possible criminality or whistleblowing in the interest of public safety, while protecting individuals or firms from vexatious claims. And parliament should examine proposals for companies to disclose, as part of their annual reports, the number and broad nature of payouts made. Repeated large payoffs would immediately raise a red flag to regulators and potential employees.
Finally, Parliament should look to its own. In the curious case of Mr Mahmood and Ms Cohen, the former committee chairman of standards in public life, Sir Alistair Graham, is right when he says: “If public money is involved, there should not be secret deals like non-disclosure agreements used to resolve staff issues. This is about transparency.”