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Lords debate HS2 heavy use of NDAs

Concerns over 300 Non-Disclosure Agreements (NDAs) by HS2 railway line construction project has been debated in the House of Lords who say wide scale use of NDAs could be  ‘undermining public trust’ in infrastructure projects.

NDAs are legal agreements that prevent the disclosure of commercial information by those who are signed up to them, but they can be open to abuse if they are drafted to prevent concerns of a public interest being raised e.g. wrongdoing, criminal activity etc.  A worker can be subjected to an NDA in their contract of employment itself or when they leave an employer when it becomes part of a settlement agreement.

There is a balance to be struck between transparency on the one hand, and commercial confidentiality on the other but in the House of Lords debate on December 8, Peers believe the balance is often weighed too far in the direction of commercial confidentiality.

In the case of HS2, NDAs were blamed for the slow release of concerns relating to the overrunning of costs on the project to Parliament and the public leading to a loss of trust. Peers pointed to an official report  which found NDAs “undermine public trust” in infrastructure projects leading to a “corrosive sense on the part of the public, that planning is no longer protecting their interests.”

Baroness Kramer highlighted the damage that NDAs can do to whistleblowing, and the gagging effect they can have on vital public interest disclosures coming to light:

“The idea I have heard that settlement agreements do not act as gags is nonsense. Why does the Minister think that Doug Thornton—the best known whistleblower on HS2, who was HS2’s director of land and property until he was dismissed when he raised concerns internally—did not sign one [an NDA]? He could have saved himself years of agony if he had.”

In light of these issues, an amendment was tabled that was fairly radical calling for an independent assessor (appointed by the NAO) of all NDAs who would judge whether such agreements were in the public interest with a presumption towards openness and transparency over commercial confidentiality.  The Government rejected the amendment as unworkable, seeing as no issue with the number of agreements given the protections in the law and they believed NDAs involving HS2 were safeguarding commercial information.

Protect Head of Policy, Andrew Pepper-Parsons, advised, “In light of so many NDAs, it is vital that anyone signing them is given advice about their limitations when it comes to whistleblowing: any clause in a contract that purports to stop someone speaking up to prevent H&S risks, crime, damage to the environment or breach of legal obligations is void. This applies to protected disclosures made to regulatory bodies, MPs, Select Committee’s and the media.

“Public procurements and projects such as HS2 should come with high standards of transparency and be underpinned by a strong speak-up culture.  Local Authorities being asked to enter NDAs need to weigh carefully any commercial interests with the public interest in providing information so that local communities can understand the risks and benefits that come with such projects.”