Non-Disclosure Agreements

Debate between Baroness Kennedy of Shaws and Lord Keen of Elie

Tuesday 1st May 2018 Lords Chamber

[Baroness Kennedy of The Shaws]

To ask Her Majesty's Government what steps they are taking to ensure that non-disclosure agreements are not used to cover up criminal behaviour or silence victims, and that there are no financial or other consequences imposed when a breach of an agreement is in the public interest.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, non-disclosure agreements cannot prevent any disclosure required or protected by law. A court could find a non-disclosure agreement to be void or decline to give effect to it for reasons of public policy. The Government are looking at the structures around non-disclosure agreements and the evidence coming forward about how they are being used.

[Baroness Kennedy of The Shaws (Lab)]

Noble Lords will know that after the great surge of disclosure when Harvey Weinstein’s sexual abuse came to light, those very serious allegations gave light to many other instances of women in the workplace experiencing sexual abuse and drew attention to bullying experienced by men and women both. A light has been shone on the fact that non-disclosure agreements are used all too often to silence complainants who have experienced harassment of a sexual nature that sometimes falls short of criminal behaviour. Do the Government agree that they should give a clear statement, and, if possible, bring legislation, to say that it is not right to use non-disclosure agreements in this way for the purpose of silencing complaint?

The second matter is that we also know that many employment contracts now contain a clause to say that there has to be recourse to arbitration if there are any complaints or matters of dispute to avoid court hearings. Again, that silencing is often used to prevent those who are suffering harassment and abuse in the workplace from taking their cases forward. Should something not be done about that?

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes two things clear. First, if an employee does not get independent legal advice regarding such an agreement it will be void. Secondly, it ensures that where a non-disclosure agreement has been entered into it does not affect the right of the employee to make a protected disclosure—that is, a disclosure that pertains to various forms of wrongdoing and is made to a protected party.

Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Debate between Baroness Kennedy of Shaws and Lord Keen of Elie

Wednesday 20th December 2017 Lords Chamber

[Lord Keen of Elie]

There is no legal barrier to us becoming a party to the Lugano convention, but that would be a subject of negotiation with the council to the Lugano convention. I believe it was the noble Baroness, Lady Kennedy, who suggested that the CJEU was somehow a red line in this respect. I emphasise that it is not a red line, but it is an issue that has to be addressed in the context of the present negotiations.

I will touch on one or two points made by noble Lords in the debate, beginning with the noble Baroness, Lady Kennedy of The Shaws. Again, I go back briefly to her suggestion that our rejection of the direct jurisdiction of the CJEU had a profound effect on civil judicial co-operation. I simply cannot accept that. It does not apply in the context of the UNCITRAL rules, the Hague convention or Lugano. Therefore, there are clearly areas where we can negotiate and determine judicial co-operation without accepting the direct jurisdiction of that court.

The noble Baroness also observed that Lugano had not been upgraded. I think she suggested it was essentially stuck in aspect, or something of that kind.

[Baroness Kennedy of The Shaws]

I said aspic. It is a sort of jelly.

[Lord Keen of Elie]

Indeed so. I am familiar with it—absolutely ghastly stuff.

It is not stuck; it so happens that the convention has moved more slowly than Brussels in this context. Lugano was essentially in parallel with Brussels I. When Brussels moved on to Brussels Ia Lugano did not accelerate at the same speed, but that is not to say that it is in aspic.

I may have misheard the noble Baroness, but she suggested, in the context of arbitration, that there was no allowance for enforcement of arbitral judgments. That is not the case, because the New York convention provides for enforcement of arbitral judgments. That applies right across the world. It is not limited in any sense to the EU. Again, it seems arbitration—and commercial arbitration, which is particularly important in the context of the City of London, for example—is not affected by these issues of reciprocal judicial agreement and enforcement.

The noble Baroness, Lady Shackleton of Belgravia, suggested that the Government’s response was disappointing. I hope we have moved on from that point. She suggested that the reference to things being wound down would not do, but with great respect, we have no desire to see any of this wound down. We seek certainty, predictability and an outcome that we can say is in parallel with Brussels Ia, Brussels II and the other regulations referred to.

The noble Lord, Lord Cashman, referred to the Brussels regulations having a significant role. He is absolutely correct about that and we acknowledge it. Indeed—I believe I can get this far—we certainly agree as to our goal. He may feel that we are a little less certain than others about how we get to it, but there is no suggestion or intention of us walking away from these regulations. We will have to address the question of the direct jurisdiction of the CJEU and we acknowledge that.

Brexit: Human Rights

Debate between Baroness Kennedy of Shaws and Lord Keen of Elie

Tuesday 12th December 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I congratulate the noble Lord, Lord Cashman, on securing this important debate. The noble Baroness, Lady Kennedy, said that human rights matter. I would go further: human rights are central to the way we live now and to the way we wish to live in the future. They are an integral part of the society of which we wish to be a part. It is not only that they matter but that they are there and will be retained.

Protection of human rights remains a priority for this Government. The principles that underpin our legal and justice framework have developed over many centuries, with the evolution of human rights at its heart. As the noble Lord, Lord Cashman, pointed out, history is important because it has taken time for these rights to develop, emerge, be recognised and upheld without qualification. We look back upon a long-standing tradition of liberty and human rights.

The noble Lord mentioned Magna Carta, which was rediscovered in the 17th century but nevertheless is a critical foundation of the rights we enjoy today. The 1689 Bill of Rights and the common law underpin much of what we have, including—as was pointed out in the recent Unison decision of the Supreme Court—the right of access to justice, which is essential to the maintenance of human rights. We also have the Human Rights Act 1998, which this Government are committed to retaining in the present Parliament.

Reference was made to the role that the United Kingdom has played in developing the international human rights framework—including in the Council of Europe—the European convention and the United Nations. We have recently been re-elected to the United Nations Human Rights Council and will be a part of that until at least 2019. That is an important step and position for the United Kingdom.

The United Kingdom’s human rights framework is multi-layered and has developed over many years. Our departure from the European Union does not change our commitment to human rights, nor is there any reason why it should. The European Union began to recognise what it termed fundamental rights many decades ago. This initially occurred through the case law of the European Court of Justice and subsequently through EU legislation. The EU decided to reaffirm the rights and principles that it recognised in what became the European Union Charter of Fundamental Rights—the charter, as it has been referred to by noble Lords. That was first proclaimed in 2000 and became legally binding in 2009 with the introduction of the Lisbon treaty.

It is important to stress that the charter did not create rights. It brought existing European Union and international rights and principles together into a single document—the charter—but it did not create them. EU fundamental rights in the charter then applied to member states only when they were acting within the scope of EU law. Now the United Kingdom has, despite the misgivings of many in this House and elsewhere, voted to leave the European Union, and the withdrawal Bill currently being discussed in the other place is designed to ensure that the United Kingdom exits the European Union with certainty, control and continuity. That is essential in the national interest. The Bill will save EU-derived domestic legislation, including UK legislation that has been passed to implement EU directives, and incorporate direct EU legislation and directly effective rights that arise from treaty articles into domestic law.

The substantive rights that provide the source law of the charter will be retained or converted into domestic law. Although the charter will not be retained after exit, non-incorporation of the charter into domestic law will not in itself affect the substantive rights that individuals already benefit from in the United Kingdom, as the charter was never the source of those rights. The Government remain fully committed to ensuring that there are strong human rights protections once we leave the European Union; we do not consider that those are in any way undermined by our decision not to incorporate the charter into domestic law.

The Government are committed to furthering the United Kingdom’s status as a global, outward-looking nation, contrary to the suggestion of the noble Baroness, Lady Chakrabarti. We are playing an active, leading role in the world in that regard; I mentioned our position on the UN Human Rights Council. We will continue to support an international order in which rules govern state conduct, and be champions of British values of freedom, tolerance, democracy and the rule of law. We will continue to comply with our international human rights obligations and take action to tackle any abuse of those rights where we can.

Of course, as far as the United Kingdom is concerned, the principal international treaty in this regard is the European Convention on Human Rights, which is given further effect domestically by the Human Rights Act. The Government have made clear their commitment to respecting and remaining a party to the convention. We will also continue to work with our European partners to improve the functioning and efficiency of the Strasbourg Court—particularly in the light of its enormous backlog of pending cases, which disrupts its ability to maintain the jurisprudence of the convention. Our commitment to European co-operation in this area and pan-European standards is as firm as ever. Of course, we remain members of the Council of Europe. In addition, as I believe the noble Lord, Lord Cashman, noted in his opening speech, we are signatories to the Council of Europe Convention On Preventing And Combating Violence Against Women And Domestic Violence—the Istanbul convention—and we are working towards meeting our commitment to ratifying it.

I turn to some other specific areas of rights where the UK is taking action. I hope the noble Lord, Lord Cashman, would agree that the United Kingdom is now recognised as a world leader on LGBT rights. We can take some comfort from our record but we cannot be complacent. We have made significant progress over the past 50 years, tackling some of the historic prejudices that existed in our laws and ensuring that LGBT people are involved in the issues that affect them. We are also seeking to tackle discrimination in wider society. Homophobic, biphobic and transphobic bullying in schools is clearly unacceptable, as is the disability-based bullying that was alluded to by the noble Baroness. We have invested some £3 million in a programme to tackle this bullying in primary and secondary schools in England. The programme is aimed at schools that currently have no or few effective measures in place to address the issue.

We are also looking to the future. In July this year, we launched a national online survey to gain the views of LGBT people living in the United Kingdom on what they think about public services. There are questions on health, education, safety, the workplace and more general questions about what it is to be an LGBT person in the United Kingdom. The survey received quite unprecedented feedback, with over 100,000 responses, making it the largest LGBT survey in the world. We will analyse those results closely and set out further steps to promote LGBT equality next year.

We are also committed to achieving gender equality—I noted, as has been mentioned, that more than half of the contributions in this important debate were from women; I certainly welcome that. We will be doing that through the 2015 UN sustainable development goals, which consist of 17 goals, one of which specifically focuses on achieving gender equality and women’s empowerment. Indeed, our Foreign Secretary wants our foreign policy consciously and consistently to deliver for women and girls, and he appointed the first FCO special envoy for gender equality in February. The Foreign and Commonwealth Office works closely with other departments to achieve our gender equality goals.

If I stray a little beyond my time I hope noble Lords will forgive me. Defending the right to freedom of religion or belief—a point touched on by the noble Lord, Lord Alton—remains a high priority for the Government. Freedom of religion or belief is a human right enshrined under the universal declaration and one that we respect. Indeed, in February the Prime Minister reiterated her commitment to,

“stand up for the freedom of people of all religions to practise their beliefs in peace and safety”.

Domestic violence again is a matter that has to be addressed in this context. We are committed to introducing a draft domestic violence and abuse Bill to demonstrate our commitment to, among other things, ratifying the Istanbul convention, which I mentioned before. There is a further ambitious package of non-legislative measures to be funded in that regard.

I turn to the particular comments made by noble Lords. Much was said by the noble Lord, Lord Cashman, that I hope I have touched on already. I hope that I have, in a sense, been able to put some of his doubts to rest. While the general principles underpinning the charter are of critical importance, the law we retain after Brexit will ensure that the rights of individuals will be respected. In so far as the charter distinguishes between rights and principles—a point touched on by a noble Lord—we can of course enforce the rights, but we cannot enforce principles. However, they will remain relevant and material to the interpretation of the jurisprudence going forward in so far as it applies to the construction and applicability of rights relating to equality and other human rights. There was also the issue of EU case law post Brexit, which is addressed by Clause 6 of the Brexit Bill.

My noble friend Lord Faulks observed that the charter contains a fine statement of general principle. I hope I have addressed that point. Those principles of course are important, but they do not operate in the same way as rights.

The noble Baroness, Lady Drake, referred to concern about a lack of confidence and a need for the Government to set out a clear vision that there will be no dilution of human rights post Brexit. There is no intention that there should be a dilution of human rights post Brexit. The intention is that those rights that we enjoy and which underpin the charter—they are not created by the charter—should continue and be maintained.

On the contribution of the noble Lord, Lord Alton, I noticed that he proposes to put forward the genocide Bill. I will of course look at it and consider its terms. We have debated this on previous occasions. I understand his concern and his deep interest in this area.

My noble friend Lord Shinkwin had very particular points to make about the position of a commissioner in the context of disability. He added that he would ask me nothing. I am obliged to him for that, because it is beyond my brief to address the points that he raised, but I noted what he had to say.

The noble Lord, Lord Judd, opined that human rights are not an option and I hope that what I have said will reassure him that this Government do not regard them as anything like an option. We certainly do not regard them as a form of negotiating point. I wish to make that clear.

The noble Baroness, Lady Campbell of Surbiton, indicated that there should be no regression. Again, I emphasise that there is no intention that there should be. She touched on some specific questions about how we will maintain protections post Brexit if there is no charter. Again I emphasise that the charter itself is not the source of rights; it is an expression of principles and rights that already exists, and already existed, in our domestic law. As to the issue of how one vindicates those rights, as the Solicitor-General observed in the other place, in so far as there is a question about that, the Government will consider and address it, if there are issues about whether certain rights have to be implemented in a different way after Brexit.

On the matter of immigration, one has to emphasise that there will not be an absolute bar on immigration. They are talking about free movement, and the two things are quite distinct. The immigration process is yet to be worked out and, as noble Lords are aware, there will be an immigration Bill which will address some of these issues.

My noble friend Lady Warsi suggested that human rights are not a priority for this Government, but I would dispute that. They remain central to this Government’s vision of a society. Whether it is the society that exists within the European Union or without it, it is a society that exists in Europe and exists internationally, and that has as one of its motivations a respect for the rule of law and respect for human rights, and in particular for equality.

The noble Baroness, Lady Grey-Thompson, spoke about the issue of disabled people’s rights. Again, I simply underline that those rights will be retained and protected. As regards hate crime, of course it is an important issue. I hope that I have been able to give some reassurance about the Government’s recognition of it as an issue and the steps we are attempting to take to deal with it.

The noble Baroness, Lady Whitaker, alluded to the position of the Roma population in the United Kingdom. This Government are concerned about the inequalities experienced by the Roma and Traveller communities, particularly in the context of health and education, but there are other areas as well where issues arise. There has been a race disparity audit showing that these communities are among the most disadvantaged in British society and we agree that more needs to be done to ensure that these people are not excluded and not left behind.

The noble Baroness, Lady Meacher, asked whether there are plans to water down employment and other rights by means of the powers given to Ministers under the EU Bill. That is not the intention. It is quite clear what the purpose of these powers is—it is to ensure that there is a smooth transition at the point when we leave the European Union with regard to the workability of our existing legislation. That is the aim of those particular powers.

I think I have touched on the observations from the noble Baroness, Lady Kennedy, and I hope I have responded to her concerns. But I would make one observation. She suggested—I might have misheard her—that people who want to leave the European Union, people who want a hard Brexit, do not have human rights values. I would dispute that, and I would reject it.

[Baroness Kennedy of The Shaws]

I was referring to the sections of the Minister’s own party, the Conservative Party, that are driving for a hard Brexit and have led on it. They are not people who have been proud exponents of human rights. They have been great critics of the Human Rights Act and wanted to see its abolition. They have often spoken of withdrawing us from the European Convention on Human Rights. It is reasonable to make the connection between the desire to rid ourselves of Europe and the desire to rid ourselves of the human rights connections that we have with Europe. I think that is regrettable.

--- Later in debate ---

[Lord Keen of Elie]

I was not here yesterday afternoon but I am obliged to the noble Lord for his intervention.

[Baroness Kennedy of The Shaws]

My Lords—