Contribution
My Lords, it is telling that so many amendments have been tabled from across the Committee for discussion. Amendments 98, 101, 101A and 101C all aim to restrict the use of non-disclosure agreements in sexual harassment cases. There has already been considerable debate in the other place on this as well, led by Louise Haigh MP. I hope and believe that the strength of feeling and the rationale behind it are encouraging the Minister to consider tabling the Government’s own amendment to the Bill. The Bill provides such a wonderful opportunity to address a practice that has gone on for far too long, as others have talked about. Of course, this is not an academic issue. It has a real cost and causes real detriment to people’s lives and, of course, to their careers.
I speak in support of all these amendments and have added my name specifically to the one tabled by the noble Baroness, Lady Kennedy of The Shaws, because it sets out clear limitations on the silence that has, to date, been able to be bought through NDAs, while enabling workers to request an NDA, since that can help them move on with their lives, but under only certain conditions, including receiving “independent legal advice”. I want to clarify my additional Amendment 101A, which seeks to strengthen this provision by requiring employers to contribute to legal fees. We know that fees put many women off seeking advice: it seems very daunting, and then they have to pay for it at seemingly unlimited cost. I note that Ireland, which has been mentioned by the noble Baroness, Lady Kramer, has already adopted this practice of allowing NDAs for sexual harassment cases only in what are described as “excepted circumstances”. In those cases, employers are required to cover the employee’s reasonable legal costs.
I have suggested quite a specific figure, although I stress that it is the principle rather than any specific amount that is important. I note that I came up with that figure after consulting lawyers specialising in these matters. The key is that such costs would be borne only by those employers that have reason to enter into such agreements. Firms with good cultures that do not have sexual harassment cases will not need to enter into NDAs. They will have nothing to pay—another incentive to encourage companies to prevent harassment occurring in the first place.
As has been mentioned by others, those of us who have tabled our various amendments and supported the views of others will be very pleased to consolidate our suggestions into one amendment that is simple and workable, and will achieve the goal of limiting the use of NDAs so that they are not misused but used to help victims move on. I look forward to hearing the Minister’s thoughts and again urge the Government to use this opportunity to finally end a practice that has gone on far too long and been completely unchecked.
We all know about the #MeToo scandal and the causes célèbres, but until the noble Baroness, Lady Kennedy of The Shaws, talked about her experience as chair of inquiries and explained that the ones we hear about are, effectively, the tip of the iceberg, I would have said that we do not actually know much about the scale of the problem. No data is reported at present on the use of NDAs for sexual harassment and, of course, the nature of these agreements means that there are no revelations about the underlying issues. From personal experience, I have heard from women working in finance who sometimes use a third party to tell me their story because they are keen to see something done about it. I can only surmise that there must be many more in other sectors who do not come forward.
My final conclusion is: enough is enough. I urge the Government to seize the opportunity afforded by the Bill to restrict this misuse of NDAs.