Weaponising Legal Instruments To Protect The Guilty

Weaponising Legal Instruments To Protect The Guilty

Few would disagree that our legal system is considered to be the very finest. All over the globe, the fairness of our profession and our judiciary is lauded. Yet there is one aspect where the law not only fails to protect victims but is actually used to protect the protagonist and to prevent crimes from being exposed.

Non-disclosure agreements (NDAs) have been used for many years as a legal tool to ensure that confidential information shared between parties remains confidential and is not disclosed to unauthorised individuals or competitors.

They gained prominence in the 20th century, particularly in the business and legal realm due to the increasing complexity of business transactions, the growth of technology, and the need for companies to safeguard trade secrets and proprietary information.

However, their use in recent years has expanded beyond what they were originally intended for and has now made them a means of safeguarding the guilty.

NDAs in relation to sexual harassment cases has become a subject of public debate and scrutiny in recent years particularly with the rise of the #MeToo movement in 2017.

The #MeToo movement shed light on the prevalence of sexual harassment and assault in various industries and prompted a wider discussion on power dynamics, accountability, and workplace culture. The movement brought attention to the potential negative consequences of NDAs, as they can contribute to a culture of silence and allow perpetrators to evade accountability. NDAs can enable a cycle of harassment by preventing victims from speaking out and exposing systemic issues.

Zelda Perkins was Harvey Weinstein’s PA for five years, working in the UK office of Miramax. Every time Weinstein was in London, Zelda had to deal with his continual sexual harassment of her. This became part

and parcel of her daily work and she dealt with it, warning other female colleagues but, in essence, accepting the abuse as a norm. It was only when Weinstein sexually assaulted Zelda’s assistant during a film festival in Venice that Zelda had enough. She confronted Weinstein and reported him to a senior colleague. She was simply told to get a lawyer, which she did. But this was when her real nightmare began. “Back then, in 1998, I was naive and I believed completely in the fairness of the legal system. I was, therefore, shocked, devastated and totally broken when I realised I had no access to justice, even as a white, privileged, middle class, well connected woman. The issue was how the lawyers behaved and presented the situation to myself. Whilst in the ‘damages agreement’ as it was described, rather than an NDA, we managed to put in clauses restricting Weinstein’s future behaviour, in essence it was not worth the paper it was written on. He simply carried on.

The agreement said: we should use our best endeavours not to aid the police; that we had to get any therapist we chose to talk to, to sign a separate confidentiality agreement; that the HMRC had to consult with Weinstein’s lawyers to discuss the settlement monies; and that I could not even have a copy of the agreement. All of this is clearly unethical legal behaviour yet it is not contravening SRA guidance per se”.

After her gruelling experience where Zelda says she was treated as though she were the guilty party - interviews went on through the night, she was not allowed pen or paper, she could not go to the loo unaccompanied.

Zelda is clear that her eventual decision two decades later, to break her NDA and speak up was not just about speaking up against Weinstein, but about highlighting the broader issue and trying to change a system which enables people with power and money to behave wrongly with impunity.

“Lawyers need help to understand the ethical guidelines and the fact they should not be allowing perfectly legal tools like NDAs to be weaponised and used in an unethical manner”.

Simultaneously, with Zelda finding her voice, the #MeToo movement was rapidly gaining momentum and she found herself to be an accidental campaigner. She approached MP Maria Miller who, in turn, brought this to the attention of Theresa May, who promised to stamp out the issue. Zelda gave evidence to two Select Committee Enquiries; one looking at sexual harassment in the workplace and another on the misuse of NDAs. This triggered a BEIS consultation on NDAs. It seemed for a moment as though everything might change. Then there was a change of leader and, unsurprisingly, this fell to the bottom of the pile.

But Zelda did not give up! Having had her life turned upside down, and having lost her anonymity as a result of what happened to her, she remains determined that her struggles will not be for nothing and that she will continue fighting to make change.

In September 2021, Zelda co-founded www.cantbuymysilence.com with Professor Julie Macfarlane, another victim of the harmful use of NDAs. Their primary aim is to reform legislation, regulation and…. “... to outlaw NDAs when used to ‘buy’ the silence of victims in order to protect sexual predators, bullies, racists and abusers”.

They have already had success with new legislation passed into Law in Canada, shortly to pass in Ireland and a successful amendment passed in England and Wales to the Freedom of Speech (Higher Education) Bill, which now bans the use of NDAs in cases of harassment, bullying and discrimination in Higher Education. The Bill received Royal Assent from the King on May 11th 2023, so is now an Act of Parliament.

See (11) and (12) referring to subsection (2)a,b,c,d https://www.l egislation.gov.uk/ukpga/2023/16/enacted). See insert box below.

Their movement to create cultural change is rooted in their voluntary pledge which has now moved from universities to the business world. It is asking employers to sign the pledge and to commit to no longer using NDAs to hide misconduct. Zelda is also still working alongside Maria Miller, Jess Phillips, and Layla Moran to lobby for legislative and regulatory change.

Maria says;

“Experiencing sexual harassment can be traumatic, particularly at work, and especially when speaking out could result in you losing your job. Being told to keep silent can compound the trauma. Some employees in this position are asked to sign agreements that include clauses that prevent them from speaking about their experiences to even friends or family, and some people are made to believe they can’t even speak to their GP or a mental health professional. This culture of silencing victims of criminal offences is completely unacceptable; it covers up workplace wrongdoing and leaves people who are victims of criminal behaviour feeling alone and isolated with no one to turn to for fear of legal repercussions. This misuse of NDAs has led to a ban on covering up sexual harassment in universities. The legal change I have previously proposed would ban the misuse of NDAs (for anything other than protecting trade secrets or intellectual property) in all workplaces. It would prove to be better for victims, and better for business.

I have tabled an amendment to the Victims and Prisoners Bill which would recognise people as victims if they have signed an NDA, which purports to cover up behaviour which could be deemed criminal misconduct. This doesn’t go all the way to a ban yet, but would be a solid first step to highlight, that signing an NDA causes a person to be re-victimised after the initial event”.

This is a cause that women can align with, Labour MP, Jess Phillips, is in total agreement with Maria. As she says;

"NDAs in cases of sexual misconduct, damage the victims and induce silence, which is so often used to control people in abusive situations. What is more, it allows companies to sweep problems in their organisations under the carpet…”.

Lib Dem MP Layla Moran is another woman who is passionately working to stop the misuse of NDAs;

“NDAs and gagging clauses are endemic across all walks of life and sectors of the economy. They are used, often unthinkingly or even unknowingly, to silence victims.

I was first approached by young women at Oxford University who had been effectively silenced by their colleges following incidents of sexual harassment. They were asked to sign gagging clauses by their colleges. The effects were indescribable, and in one case even stopped a young woman talking to her GP.

While there is much work to do to tackle violence against women and girls in the UK, and in particular access to support services, clamping down on these gagging clauses is a vital first step.

The use of non-disclosure agreements in cases of sexual harassment and bullying is immoral and unnecessary, and I want to see Government action taken to bring this practice to an end for good”.

Each and every one of us can play our part in making sure this abuse of legal tools comes to an end. As women, we can write to our MPs and sign petitions to change legislation. As employers, partners or employees, we can sign a pledge not to use NDAs to cover up misconduct within our firms and our profession. And, as lawyers, we can commit to using NDAs only for good and not as a cover up. Abuse is never acceptable. Together, we can stop it. ■

In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that the provider does not enter into a non-disclosure agreement with a person referred to in that subsection in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void).

(12)In subsection (11)—

• “non-disclosure agreement” means an agreement which purports to any extent to preclude the person from—

(a) publishing information about the relevant complaint, or

(b) disclosing information about the relevant complaint to any one or more other persons;

• “relevant complaint” means a complaint relating to misconduct or alleged misconduct by any person;

• “misconduct” means—

(a) sexual abuse, sexual harassment or sexual misconduct, and

(b) bullying or harassment not falling within paragraph (a).

Maroulla Paul

Maroulla Paul is a writer of short stories, a food and wine critic as well as a legal journalist.

Zelda Perkins