Jurisdiction(s):
United Kingdom

NDAs under renewed scrutiny: proposals safeguarding criminal conduct disclosures, SRA guidance, emerging sector bans, and practical drafting advice for employers' solicitors

Published on: 26 April 2024

Published by a Law360 reporter

Legal News

Article summary

Following the government’s February 2024 campaign to highlight the victims’ code—a practical guide assisting victims of crime to understand the services and support they are entitled to in the UK—the focus has shifted back to the misuse, or perceived misuse, of NDAs and their effects. On 28 March, the UK Ministry of Justice announced plans to introduce legislation to ensure victims are not prevented from accessing justice or essential support services. [1] The proposed reforms would render ‘gagging’ provisions unenforceable where they would stop victims providing information about actual or alleged criminal conduct to:

the police or other prosecuting authorities
qualified and regulated legal practitioners, or
other support services operating under clear confidentiality principles, including, for example, counsellors, advocacy services and medical professionals

This article examines the drivers for the proposed legislation, the Solicitors Regulation Authority’s (SRA’s) warning notice on the use of NDAs, why—regardless of the crackdown—solicitors’ inclusion of absolute gagging clauses would be inappropriate, and the potential for further reform, with a focus on employers and their advisers’ use of NDAs...

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