“Unnecessary” – BSB explains u-turn on issuing NDA guidance

Davies: Not for BSB to tighten up use of NDAs

The Bar Standards Board (BSB) went back on its intention to issue guidance on the use of non-disclosure agreements (NDAs) after concluding it was “neither necessary nor appropriate”, MPs have been told.

The regulator said it was Parliament’s job to tighten up the use of NDAs.

Last July, the House of Commons’ women and equalities committee issued a report on the use of NDAs in sexual harassment cases, and said it hoped that the BSB and the Bar Council would follow the example of the Solicitors Regulation Authority in publishing guidance on the issue.

The BSB originally told the committee in response that guidance would be issued by the end of October 2018.

However, in a newly published letter from last month, BSB director-general Dr Vanessa Davies told committee chair Maria Miller MP that its ruling board had concluded not to do so.

“Having considered the matter carefully and in detail, the board concluded that formal regulatory guidance in this area was neither necessary nor appropriate,” she wrote.

She cited six of the core duties in the BSB code of conduct: duty to the court, acting in the best interests of clients, acting with honesty and integrity; not behaving in a way likely to diminish the trust and confidence of the public; providing a competent standard of work and service; and being open with the regulator.

“Barristers advising clients on the drafting and/or application of NDAs must bear these core duties in mind,” Dr Davies said. “They will also have in mind the statutory and common law principles applicable to the enforceability of NDAs as the law stands.

“Given those duties and principles, the board considered that, unless and until Parliament legislates to provide either that NDAs are unlawful per se, or that the circumstances of their lawful use should be further restricted, it is not for the BSB, as a regulator, to perform that role.”

Earlier this month, Professor Richard Moorhead – professor of law and professional ethics at University College London and a special adviser to the committee – described the BSB’s decision as “regrettable”.

In her original letter to the committee last October, Dr Davies said the guidance would state that the use of NDAs was inappropriate if they sought to prevent the reporting of matters that were disclosable to regulatory or law enforcement bodies or under the Public Interest Disclosure Act.

It was also to say that NDAs should not be used to threaten, intimidate or deter someone from making a proper disclosure.

Dr Davies wrote that the guidance would make clear that barristers engaging in such activities or failing to advise their clients appropriately may risk breaching core duties.

The latest letter also updated the committee on the progress of the BSB’s pilot scheme, under which groups of specially trained barristers can seek permission for the requirement to report harassment directly to the BSB to be waived in certain, clearly defined circumstances.

This recognises that the requirement on a barrister being aware of such misconduct to report it may actual discourage victims from coming forward.

Dr Davies said schemes to cover two of the six circuits have already been approved, with two more set to receive the green light “very soon”.

“We very much hope that these schemes will encourage greater reporting of harassment when it occurs,” she said.

Interested in this topic? Check out the Legal Futures Masterclass on NDAs, Harassment and Whistleblowing. 27 June 2019, London.

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