NDAs: Universities

Michelle Donelan Excerpts

Wednesday 29th June 2022 Westminster Hall

[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.