Reporting and comment by Mathew Carr
July 12, 2023 — UK regulator the Legal Services Board is “seeking, through this call for evidence, to gather information to inform whether a strengthened and harmonised regulatory approach is needed to address the misuse of non-disclosure agreements (NDAs).” (see document below)
“A (lawful) NDA is a legally enforceable agreement under which it is agreed that information will be kept confidential. They are frequently used in employment and commercial contexts and are often used legitimately as a means for companies to ensure the confidentiality of sensitive business information, for example, in advance of the sale or purchase of a company.”
“However, there is evidence of misuse of NDAs to conceal unlawful activity, such as discrimination, harassment or abuse, or other types of wrongdoing which are not illegal, such as bullying that does not amount to harassment (all collectively referred to as “unlawful activity and other wrongdoing” throughout this document). In these cases, legal professionals can be called upon to draft, enforce or otherwise advise on what amount to illegitimate and/or unethical NDAs. Vulnerable individuals who are the targets of discrimination, harassment or abuse may be asked or coerced through an imbalance of power to sign them. We consider that there is an active question to be addressed about the professional ethical conduct of legal professionals who assist, enable or facilitate such misuse of NDAs, and whether existing regulatory arrangements are sufficient to address this.”
Should a person engage with the consultation, they could be outed publicly … and prosecuted.
CarrZee: This seems to make it a dangerous farce; see this section:
“Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with access to information legislation including the Freedom of Information Act 2000 (FoIA) and the Environmental Information Regulations 2004. By providing personal information for the purpose of this call for evidence, it is therefore understood that you have read this information, and our Privacy Notice linked below, and you accept that your information is disclosable under such laws.“Board
Also: “If you are concerned that your response may breach the terms of an NDA, we strongly recommend that you seek independent legal advice before submitting your response.”
As a long-suffering environmental/financial whistleblower myself, this seems shocking. MORE FINANCIAL PRESSURE ON WHISTLEBLOWERS. So whistleblowers could end up prosecuted for engaging with this consultation? Is it a trap?
Is the UK govt using its consultation to out people seeking to blow the whistle on bad corporate and government behavior?
Comments to email@example.com (I promise to keep confidences – it’s part of my journalistic code of ethics).
Source doc for convenience: