NDAs: Universities

Layla Moran Excerpts

Wednesday 29th June 2022 Westminster Hall

[Clive Efford (in the Chair)]

I will call Layla Moran to move the motion and then call the Minister to respond. As is the convention for 30-minute debates, there will not be an opportunity for the Member in charge to wind up.

[Layla Moran (Oxford West and Abingdon) (LD)]

I beg to move,

That this House has considered non-disclosure agreements and alleged cases of sexual violence, bullying and harassment in universities.

It is a pleasure to serve under your chairmanship, Mr Efford. At the outset of this debate I want to commend the brave young women who have spoken out about their experiences of sexual assault and harassment. This campaign started with survivors and it is a testament to their courage that it has reached this place today. I start this debate by sharing their words. First is Naomi’s story. She said:

“I and several of my friends were involved in a case with a serial offender in my college. He behaved generally creepily towards me, and on one occasion came into a room I was sleeping in. He also assaulted multiple people in College. They confided in me and we decided to report him to our College. We decided to do this rather than going to the police, because we believed College would provide a safe space for us. My friends just wanted to be able to breathe when walking around College, and weren't concerned about getting the guy locked up.

College ran a disciplinary case during which we were all brutally questioned on the truthfulness of our stories. Around three weeks after the hearing, we were informed by email that the panel had found insufficient evidence and wouldn’t be doing anything. They did not tell us what would amount to sufficient evidence. The whole process felt deliberately untransparent.

We all signed no-contact agreements, which contained really important safety measures that we wanted in place, but also…a gagging clause. For me, it…felt like the icing on the cake of a ridiculous system that had let us down. The disciplinary process had failed to sanction a rapist, but was threatening us with sanctions if we talked about it. I can see how for other people it could be very damaging.”

The sad thing is that Naomi’s story is not unique. Another survivor—I will call her Lucy—had a similar experience, but at a different college. After being assaulted by her then partner in her dorm room, she was given a no-contact agreement that included a clause that forbade her from making any information about the assault or the subsequent investigation publicly available. Speaking about the clause, she said:

“I signed it, feeling terrified that if I didn’t agree to it he would be able to enter my accommodation without any consequence. But I was incredibly upset about the effective gag clause. I was terrified of telling absolutely anyone anything, because what if college interpreted that as ‘publicly available’? I felt I couldn’t talk to anyone, my friends or my mental health support or my GP, because of it and felt very alone.”

That is not just one story in one college that happened a long time ago, and not just one incident of bad management by a rogue member of staff. That is recent and these stories are rife. From speaking to the student group, It Happens Here, which supports survivors of sexual assault at the University of Oxford, I know that there are survivors in colleges across universities who have all too similar stories.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Lady for securing this debate on something that is often discussed and seen in the papers. It is something that, unfortunately, happens in universities right across this great United Kingdom of Great Britain and Northern Ireland. Does she agree that universities have been aware of the problem and the potential for mischief with non-disclosure agreements for some time now, and yet the necessary safeguarding has not been put in place? Now is the time for the Minister to take the steps that universities have thus far refused to put in place to protect staff and students alike.

[Layla Moran]

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 the hon. Member for Strangford (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.

[The Minister for Higher and Further Education (Michelle Donelan)]

I thank the hon. Member for Oxford West and Abingdon (Layla Moran) for securing this vital debate on an issue that I am personally passionate about and that is, as she knows, very close to my heart.

Some of the issues that we deal with come down to a simple assessment of whether something right or wrong. I have said for some time that the use of non-disclosure agreements to silence victims of sexual harassment, bullying and other forms of abuse in universities is very much one of those issues—it is simply wrong. That is why, back in January, I launched a pledge, with the support of Can’t Buy My Silence, for universities to commit to stopping using NDAs in this way. Sixty-seven institutions have now signed up, protecting more than 1 million students. I do want to correct the record: it was not the case that the Government supported the pledge; the Government created the pledge.

I am pleased to hear that the Members present share my view that it is simply wrong to use NDAs in this way. It is a gross and grotesque misuse of our legal system and one that I personally find indefensible. The only thing worse than a person experiencing this kind of horrific abuse is their then being forced to remain silent about it, even to friends and family—loved ones—for life, when they are trying to deal with the horrendous incident.

If you will permit me, Mr Efford, I want to put the voices of real victims on the record today, because, like the hon. Member for Oxford West and Abingdon, I feel that the weight of their stories will convince anyone who does not perceive the issue in the way I have outlined. One anonymous victim said:

“I was asked to sign an NDA so that I would not tell anyone my experience of sexual harassment to protect the university…I felt helpless, hopeless, and powerless. It was a feeling worse for me than the year and a half of sexual harassment I endured from my employer.”

Another victim said:

“I signed an NDA a few years ago after more than a year’s bullying by two managers at a university…The process of negotiating the NDA was very one sided and stressful. I was given a short timescale to comply and told the university would not negotiate the offer.”

That is simply not acceptable, and it is just a tiny snapshot of the sickening result of powerful institutions using NDAs to silence students and staff. There are many more cases below the surface. We must empower and enable those people to speak up. As is clear from the testimonies logged by Can’t Buy My Silence, this is not simply one group victimising another. Those silenced include men and women, staff and students, and people in senior positions as well as junior positions. It is not good enough to simply confine our concern to one of those groups; we need a holistic and comprehensive response to the problem.

In considering some of the solutions suggested by the hon. Member for Oxford West and Abingdon, it may be helpful to Members newer to the campaign if I briefly recap how we got to where we are and what prompted me to take action on behalf of the Government. Last year, I received correspondence from the newly established campaign group called Can’t Buy My Silence. Only a few lines into the explanation of the campaign, my heart sank at the thought of the victims who had been on the wrong side of an NDA in our universities. I immediately voiced my support for the campaign and went further than had been asked for by calling a meeting with it to establish what I could do as the Minister.

Our discussions on the best solutions led to the conclusion that although universities are of course autonomous institutions, they are accountable to their students and staff. In deciding which university to attend, students are looking for providers to show that they will value not only their academic growth and their professional growth, but their safety and wellbeing. The students I meet throughout England want to learn in an environment where they are free and comfortable to go forward and flourish and to report incidents and get appropriate support.

Of course, the same goes for staff—the people who make our universities such wonderful places to learn. Overwhelmingly, they want the institutions that they work for to commit to creating a safer and fairer working environment. Establishing that clear and direct channel of accountability between students, staff and a university therefore became my priority. That is why on 18 January I launched a pledge that commits universities to never using NDAs to suppress the student voice or the staff voice in relation to reporting incidents of sexual violence, harassment and bullying.

I must put it on the record that it is an honour to have supported the work of Can’t Buy My Silence, which was co-founded by Zelda Perkins, the first woman to break an NDA against Harvey Weinstein. I am grateful to her and all the campaigners at Can’t Buy My Silence for both their advocacy on this issue and their support of my pledge.

I am pleased to report that, as of 22 June, 67 institutions have signed up to the pledge, including 63 providers in England and three Oxford colleges. Of course, that is not far enough—we must go further—but it does mean that more than 1 million students are now studying at institutions covered by the pledge. That is around half the English student population. That milestone was reached in just a matter of months, before the issue received wider attention in Parliament beyond my own speeches and advocacy. I am therefore confident that, with the support of the Members present—especially those with universities that have not yet signed up to the pledge in their constituencies—we will be able to ensure that every student in this country is covered by the pledge.

I take this opportunity to once again call on Members of the House and every university to sign the pledge. It is vital that they put on the record publicly that stamp: that they will not tolerate this kind of behaviour in their institution. I ask anybody who has not already contacted their universities to do so. I will not hesitate to publicly name and shame any provider that has not signed up to the pledge.

However, as Members have said, we must go further. The Everyone’s Invited campaign has highlighted that there is much more to be done in a lot of areas to ensure that students are adequately safeguarded at university and have the best experience while they are there. I have made it clear that I believe that the Office for Students, as the higher education regulator, has a key role to play in achieving that.

In April 2021, the Office for Students published a statement of expectations on harassment and sexual misconduct. The framework provides a set of consistent recommendations to support higher education providers in England to develop and implement effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct. Section 6 of the statement makes clear the expectation that providers

“should have a fair, clear and accessible approach to taking action in response to reports and disclosures.”

It seems to me that not using NDAs in such cases is one obvious way that providers can meet that expectation.

I have asked the Office for Students to work on a new condition of registration and am pleased to report to the hon. Member for Oxford West and Abingdon that it is doing that. I have regular conversations about the progress of the registration condition.

[Layla Moran]

The Office for Students told me about the new condition, which will potentially be very useful. However, my heart sank when it said that it now has to have a long process of consultation, so it will potentially take years to come into effect. Is there anything the Minister can do to expedite that process?

[Michelle Donelan]

I would be shocked if the Office for Students said verbatim that it would take years, because it certainly will not. Of course, it is right and proper that a regulator would consult on such a change, but it certainly will not take years. It is a priority for me, the Secretary of State for Education and the Government at large. The registration condition would mean that higher education providers could be sanctioned for failing to take seriously their duties—including on NDAs—with a fine, suspension or even deregistration as a university. It will really have the teeth to effect change.

Back in September 2021, I welcomed Universities UK publishing its sexual misconduct guidance, which explicitly advises vice-chancellors not to use NDAs in sexual harassment, abuse and misconduct cases and highlights the fact that there is support from the sector on this very issue. Additionally, the Government provided £4.7 million of funding to the Office for Students for safeguarding projects between 2017 and 2020, and providers have been leading and sharing best practice from those projects.

I also wish to highlight the publication last July of the Government’s strategy to tackle violence against women and girls, in the wake of the absolutely tragic murder of Sarah Everard. The strategy includes reviewing options to limit the use of NDAs in cases of sexual harassment in higher education.

I should add that the ask for higher education providers to commit to the pledge in order to spearhead a cultural shift against the misuse of NDAs in their own universities is only a first step towards ridding the sector of the use of NDAs in sexual harassment cases. I reiterate that although I consider commitment to the pledge to be important, it is of course not good enough on its own. That is why I have continued to go further and why I will not stop pressing this case to ensure that more is done.

I again thank the hon. Member for Oxford West and Abingdon and those who attended the debate. Today’s discussion shows that there is a collective resolve, and not just here in Parliament; many members of the university sector have spoken up against NDAs, along with victims among students and staff. It is absolutely clear that we must address this issue, which is why this is the first Government to put this issue on the agenda and to begin to tackle it.

I conclude by urging every university to sign up to the pledge. Universities are in many ways the engines of social change, often showing the leadership required to effect major change in our society. I believe that if our higher education sector tackles the issue head on, more institutions and more sectors in public and private life will follow its example.

Question put and agreed to.