Charities and gagging clauses

13 Dec 2018 Nick Garbutt    Last updated: 13 Dec 2018

Pic: Unsplash

Beleaguered Prime Minister Theresa has taken time off from her Brexit travails to intervene in the growing controversy over charities being forced to sign gagging clauses in public contracts.

The practice which is widespread in England and Wales is creeping into Northern Ireland. It has provoked outrage at a time when the independence of charities is already coming into question.

Many argue that it is already difficult to reconcile some charities’ missions with public contracts because the fact that they are being paid to do the government’s work in itself potentially compromises their ability to be truly independent advocates for the causes they represent.

But the use of clauses apparently designed to suppress legitimate criticism is another matter altogether.

Gagging orders, or more correctly confidentiality clauses are often used both by private and public sector employers when an employee is made redundant or after having had some kind of dispute or issue in the workplace. Typically a “compromise agreement” is drawn up which involves a payment from the employer in exchange for the employee not taking the matter to court and not speaking publicly about the circumstances that led them to leave work.

This can often mean the employee effectively being bought off. The payment is therefore the price of silence. This is controversial enough

But their extension into public sector contracts is another matter entirely.

Last month The Times newspaper revealed that experts hired by the government to test cladding 12 days after the Grenfell fire had to sign up to a contract stating it would not create “adverse publicity” about the Cabinet Office “or other Crown bodies” – which includes the prime minister’s office.

In researching what appeared to be an outrageous move to suppress comment on a matter of huge public interest, the Times then went on to look at 35,000 government deals signed since 2015. It discovered that 398 of them contained adverse publicity clauses , 40 of the organisations who had signed them were charities.

The newspaper claims to have  found contracts banning charities working with universal credit claimants with criticising Esther McVey, the Work and Pensions Secretary and similar bans for charities working with prisoners.

There are no figures available for Northern Ireland but the gagging clause exists here and is causing alarm.

When Sir Stuart Etherington, chief executive of NCVO, NICVA’s sister organisation in England, read about the universal credit issue he was alarmed and wrote to Esther McVey to ask for an explanation.

He did not get a response so wrote directly to the Prime Minister to voice his concerns. He wrote:

“These articles suggest that these clauses may inhibit charities, and other providers, from speaking out about the experience of the people they work with, thereby preventing the provision of vital insights and expertise which improve policy-making, both through their conversations with government as well as informing wider public policy.

“The government has long recognised that voluntary organisations play a much-needed role in policy development and shaping regulatory reform. Our democracy is stronger when civil society plays an active role in voicing the concerns and experiences of everyday people, and any policy which mutes what the government might hear will only harm the policy process.”

He went on to ask her to unambiguously confirm “that these clauses should not in any way prevent or deter charities or other providers from publicly expressing concerns about a particular policy, including those relating to the delivery of the contract.”

Last week he got two replies – one from the Prime Minister and another, albeit delayed from Esther McVey.

Theresa May wrote: “I want to be clear that these provisions are in no way 'gagging clauses'. They do not stop providers or affiliates from fairly criticising Government departments or Government policy. Furthermore, they do not prevent charities from campaigning for any particular cause and would never be used as a means of attempting to stifle debate or prevent legitimate criticism. Please be assured that the Government will consider ways of clarifying future contracts and grant agreements in order to address the unfortunate perception that has arisen regarding these clauses.”

And McVey’s added: “these clauses in Government contracts and grant agreements are intended to protect the interests of Government in a reasonable and legitimate way. They do not prevent individuals working for any of our contractors from acting as whistle-blowers under the provisions of the Public Interest Disclosure Act 1998, nor do they seek to prevent contractors from raising any concerns directly with the authority.”

This is all very encouraging – charities can speak truth to power, even when it concerns contracts that they are carrying out themselves. They can also campaign, without hindrance, for the causes they espouse – provided of course this is done within Charity Commission guidelines and with their own money.

But as Sir Stuart points out in a blog piece there is still a problem of perception. Many charities not even subjected to gagging clauses genuinely fear repercussions if they speak out – and looming over all of this is the Lobbying Act which will reinforce the view held by many that government wants charities to “stick to their knitting” and not presume to speak up for the people they work for.

It is to be hoped that public bodies in Northern Ireland refrain from imposing any more of these clauses unless and until a form of words is found that explicitly protects their rights to criticise where that is appropriate.


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