NDAs: Universities

Part of the debate – in Westminster Hall at 11:00 am on 29th June 2022.

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Photo of Layla Moran Layla Moran Liberal Democrat Spokesperson (International Development), Liberal Democrat Spokesperson (Foreign and Commonwealth Affairs) 11:00 am, 29th June 2022

I could not agree more. There are now movements in place—I will come to those in a moment—but they are far too slow, and by the time that they come into force all the young women who are affected have moved on.

Gagging clauses have significant emotional and psychological effects on the survivor. Young women who have just suffered a traumatic ordeal are then presented with what looks like a sophisticated legal contract, written by their superiors who control the fate of their degrees. The fact that these contracts are not legally enforceable does not really matter. How on earth can a vulnerable university student know that? I am not sure I would either.

The imbalance of power between the institution and the victim is huge. We must understand that this issue is not with the no-contact agreements themselves. They actually contain important safety and security measures that survivors stressed they wanted in place. Those measures are what makes it all the more challenging to object to the gagging clause. As Lucy said, survivors feel they have no choice but to sign in order to protect themselves.

The perception of a lack of choice and the coercion to sign against their instincts and wishes is the issue I hope to address today. Expecting a young person who is in extreme psychological distress to challenge staff at their university and then seek to renegotiate a contract that contains important safety measures is absurd. We would not expect it of ourselves, and we certainly should not expect it of them.

That is why I have written to all 39 Oxford colleges, asking them to sign this pledge against the use of non-disclosure agreements in the cases of sexual harassment, abuse or misconduct. I am pleased to report that three colleges—Lady Margaret Hall, Keble and Linacre—have now done so. I express cautious optimism that a number of colleges have made their own statements, albeit not signed the pledge. I urge colleges that are reluctant to sign the pledge or have concerns about it to meet me to discuss it.

University is a stepping stone between childhood and adulthood. It is supposed to be a place of safety and security—a home away from home. It is where young people learn how to behave as an adult and how they can expect to be treated. My fear is that these young women are being taught that their voice and their pain is less important that the institution’s reputation.

Signing the pledge is a no-brainer, but it should be only the beginning of the work that needs to be done to stamp out this deeply deplorable practice. In my view, the pledge does not go far enough. Students have expressed concerns that colleges and universities will sign up to it and then sneak clauses into agreements like no-contact agreements and argue that it does not actually constitute a no-disclosure agreement. Clarification on that point from the Minister would be really helpful.

There is also no real consequence of breaking the pledge. Can’t Buy My Silence provides a platform to report breaches of the pledge, with the only listed sanction being the removal of the university’s name from the list of pledges. I have met with the Office for Students—which comes to the point Jim Shannon made—to discuss its role in regulating the behaviour of universities and investigating how the sector is to meet the standards set.

I am pleased that the Office for Students recognises that there is more it can do and intends to do on bad behaviour by universities. However, I am concerned that this work is far too slow. I ask the Minister to do whatever she can to expedite this process and get some real regulatory bite behind that statement of expectation. I welcome the steps taken by the Government and the Department for Education. I am pleased that the Minister has backed the university pledge, created by the campaign group Can’t Buy My Silence. I welcome her response to my letter earlier this year, especially her offer of a meeting. We are still waiting on that meeting. I wonder if today she could reiterate that offer, so that we might discuss in private some of the details I was unable to give in the debate today. I am sorry to say that I think she will be shocked by them.

Survivors need more than commitments, pledges and statements. They need concrete action. If this is happening in Oxford colleges, it is happening in other universities and other institutions. The Can’t Buy My Silence campaign began with Zelda Perkins being placed under an NDA by her then employer Harvey Weinstein. She was paid £120,000 to keep quiet about Weinstein’s abuse and mistreatment of her and her team.

NDAs occur in many different walks of life—in settlement agreements of severance packages as well as in cases of wrongdoing. Where both parties agree to sign to an NDA, we do not take issue. It is not a problem when it is signed freely. Whether it be a university student or an employee reporting their boss’s bad behaviour, the practice of individuals feeling in any way pressured or forced to sign up to these clauses needs to stop.

If we decide to regulate the use of non-disclosure agreements, we will not be the first. Prince Edward Island in Canada is one step ahead, having already passed a Bill to regulate such agreements. It is called the Non-disclosure Agreements Act, and it was passed in May 2022. It states that

“A party responsible or person who committed or who is alleged to have committed harassment or discrimination may only enter into a non-disclosure agreement with a relevant person…if such an agreement is the expressed wish and preference of the relevant person concerned”— the expressed wish of the survivor, the victim, the person who is reporting. It is so simple: no one in any circumstance, in any university or otherwise, should enter into a non-disclosure agreement or gagging clause against their will. As such, I will table a private Member’s Bill today to establish exactly that principle. I hope that colleagues and Ministers who I know are on board with the campaign will consider supporting that Bill.

Moreover, the vehicle to attach my Bill to is on the horizon. The Ministry of Justice, in consultation with the Home Office, is bringing forward a victims Bill that will contain measures to, in the Ministry’s own words,

“amplify victims’ voices and make sure victims are at the heart of the criminal justice system”.

I had a positive meeting with the Home Secretary, at which she agreed to work with me on trying to include a ban on NDAs in that Bill. She further agreed that no one in any setting, of any age, should be able to silence the voice of a victim of crime. I have urged the Government to back my Bill, and to insert the language needed to tackle that egregious practice once and for all into the victims Bill.

Finally, though—this is a point made by some who do not want to sign the pledge—we have to acknowledge that tackling gagging clauses will only scratch the surface of the problems faced by women and girls. It is far and away the lowest-hanging fruit, but it is important. One survivor said to me:

“If they can’t do this, then I don’t have confidence they’ll do anything.”

Women and girls are keenly aware of the dangers that face us when we are walking home at night, venturing into a nightclub, or staying in our own homes. We are frequently subject to harassment, with 71% of women of all ages in the UK having experienced some form of sexual harassment in a public space. A smaller number, but still substantial, are subject to sexual offences, with the number recorded by the police reaching an all-time high in 2021—over 170,000.

At the top of that pyramid—or the bottom—are, I am afraid, those who have lost their lives. This weekend, I attended a vigil at my local church in Botley. We read out the names of the 140 women who were killed by men in 2021, of whom Sarah Everard was probably the most famous. Local artist Alice Brookes hand-stitched every name into a pillowcase. They were hung in a line wrapped around the church—it was incredibly moving. While those statistics are appalling, I do not think anyone is surprised by them any more. The scale of the crime is enormous, and what struck me about my conversations with survivors was that they had no faith in even reporting to the police. Sadly, the statistics confirm why: just 2.9% of reported sexual offences and 1.3% of recorded rapes result in a charge or summons.

While there is clearly much to do to end the epidemic of violence against women and girls, I hope that we can at least work together today to end the misuse of non-disclosure agreements and gagging clauses, not just in university settings but elsewhere in society. Young women up and down the country, not just those in Oxford, have been silenced by a system that is supposed to protect them, so I ask the Minister to not just encourage colleges and universities to sign the pledge, but work with colleagues across Government to stamp out that deeply harmful practice in its entirety. Through the victims Bill, we have a golden opportunity to enshrine in law the principle that no victim’s voice should be silenced, and although sexual violence takes so much from survivors, we can restore what should never have been taken away in the first place: their voice, their agency, and their power.