My confession. I am subject to an NDA but I feel no shame
27 Oct 2018 at 09:51
It is sad, if not tragic, to see the reputation of an able and decent man ripped to shreds by the press over a serious error of judgement. Oh, I am not talking about that greasy old tub of libidinous lard Philip Green. His tawdry excuse for a reputation sank without trace with the BHS pension fund. But I am talking about Peter Hain. What ever possessed him? I am not entirely sure that I buy the argument that he was in cahoots with a firm of Solicitors who act for the Telegraph group who objected to the interim injunction banning publication of certain non disclosure agreements. I am old fashioned enough to believe that no reputable firm of Solicitors would ever seek to undermine a court order. I just think that Peter, one of the good guys, made a colossal error of judgement. And that will be his foot in the mouth note in history.
I was pretty sure that Parliamentary Privilege would not be used against Fat Phil in the Commons. Way back in 2016 Bercow warned MPs to behave responsibly in the wake of the Tom Watson fiasco. Yes, I know. Asking an MP to be responsible is like asking a dog to not piss against a lamppost. But the thought of a public bollocking, rarely being called to speak and being relegated to the mad benches populated by the likes of Nadine Dorries and Alan Mak is a cruel punishment. So I expect to welcome a ruling on Monday by the Lord Speaker, Norman Fowler, warning that Parliamentary Privilege is not device to circumvent the rule of law to get a cheap headline.
Judges are there to implement the law and if Parliament is queasy about making it they have to develop it themselves. So on the delicate balance between privacy and the freedom of the press, which Parliament avoids like the plague, the law is developed by senior judges on a case by case basis. And they are not doing a bad job of it as Sir Cliff Richard will attest. But the Green case throws up a whole range of murky issues which really should be looked at with clarity rather than through the prism of #Metoo.
Let’s have a look at injunctions generally. It has always angered me that protecting one’s reputation is the sole preserve of the rich and famous. They can pay a fortune to attempt to obtain a super injunction. They are the Fortnum and Mason of the breed. The mere mention of its existence is a contempt of court. They are very, very rare. Then there are the anonymised Green type ones who are in the Tesco range, and finally the bog standard Aldi model with the party’s names attached but not the detail. The name of the game is for the rich and powerful to defer the letting of the cat out of the bag for as long as possible because these orders can be thwarted by media platforms outside the jurisdiction. So it’s an awful lot of money for a bit of breathing space. Is it worth it? And then there is the Streisand effect. The mere act of trying to conceal leads to far more hostile media attention than the real story.
Then there is the whole problem of Non Disclosure Agreements. But is there a serious problem? Only from the politicians I suspect. Theresa May pressed the dangerous ‘something must be done button’ this week, but it was at PMQ’s so those moments of madness can be excused. Well it appears that we will be having a review and that ‘lessons will be learned’. There will be turgid, virtue signalling and unworldly debates where it will be learned that the law on contract is capable of protecting the weak and vulnerable. If someone enters into a contract where sums of money are paid to another to keep quiet about an event that happened which was criminal it is null and void and has the potential to be a conspiracy to pervert the course of justice. Hence non consensual sexual shenanigans are off limits for NDAs.
So what is wrong with an NDA which has been entered into freely, without pressure and on independent legal advice? Surely none. If an actor has a consensual relationship with a producer and the NDA was genuinely entered into freely surely it must be enforceable. In fact I am subject to an NDA myself which I freely signed. Now don’t get exited red tops. A few weeks ago I interviewed the Secret Barrister on my radio show. For obvious reasons SB wishes to remain secret as a result of the most honest book on our criminal Justice system that I have ever read. So we all signed up to an NDA undertaking not to reveal SB’s identity and the voice was replaced with that of an actor. What on earth is wrong with that? Nothing. But those of you who are curious about the SB identity I’ll give you a clue. In deepest Tonbridge Wells if you find a middle aged spinster drinking tea in a bungalow with her one eyed cat called Grayling you might be getting warm. Or not. Phew, I don’t think that I am in breach. But I did bump into that Peter Hain the other day…….