In an announcement last week, the Lord Chancellor, Alex Chalk KC said the changes would clarify that NDAs cannot be legally enforced if they prevent victims from reporting a crime. The legislation will ensure information relating to criminal conduct can be discussed without fear of legal action with police, crime investigation or prosecution bodies, lawyers and support services such as counsellors, advocacy services, or medical professionals, which operate under clear confidentiality principles.
Chalk said NDAs ‘are too often used to sweep criminality under the carpet and prevent victims from accessing the advice and support they need’.
Provisions in NDAs relating to commercially sensitive information or other obligations not relevant to criminal conduct will retain their legal effects.
Chair of the Bar Council, Sam Townend KC, said: ‘The issue of NDAs is ripe for legislative change.
‘Some NDAs are abusive in nature. NDAs can't cover criminal acts and under existing common law protections many are already unenforceable but those who are asked to sign them are not always aware of the relevant legal principles and may not have timely access to legal advice.
‘Legislative change should aim to put these matters beyond doubt. Getting the wording and definitions right will be important and we look forward to working with the government and others on this.’
Earlier this month, a Legal Services Board (LSB) summary report, ‘The misuse of NDAs: call for evidence themes and summary of evidence’, found evidence of NDAs being used to cover up illegal conduct and promote imbalances of power. The report included responses from 74 individuals with personal experience including imbalances of power such as employer/employee, divorce and consumer disputes, access to justice issues and a lack of understanding about legal rights.
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