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Brexit: Non-Disclosure Agreements

Volume 796: debated on Thursday 14 March 2019


Asked by

To ask Her Majesty’s Government how many companies have signed non-disclosure agreements with them in relation to preparations for the United Kingdom’s withdrawal from the European Union.

My Lords, government departments make use of non-disclosure agreements when structuring engagement with businesses or other organisations on preparations for leaving the EU. They are a common component of contractual arrangements that are used to protect the commercial considerations of the parties involved or to protect sensitivities around the development of government policy. With regard to my department, DExEU, as of mid-January there were seven NDAs in place covering standard commercial contracts.

My Lords, I thank my noble friend the Minister for his response. The Government have been rightly critical of the use of NDAs in some cases that have come to light recently. It is crucial that Parliament and the public should have access to all relevant information about the potential costs and risks of Brexit, so could my noble friend assure the House that the NDAs the Government have signed are not keeping important data out of the public domain? At such a pivotal time for the country, business should not be gagged.

I totally agree that business should not be gagged. Many businesses have rightly spoken out with their opinions on Brexit, both for and against. But we have been extremely open about no deal and the costs of Brexit. We published 106 technical notices and there has been extensive debate. A lot of economic analysis has been published. Nobody can say that they have not had all the relevant information.

My Lords, if the Government subscribe to the democratic principles of transparency and accountability, should there not be a rule that Governments and their agencies do not enter into non-disclosure agreements where public interests are material? Should not pleadings for commercial confidentiality be treated with great scepticism?

I agree with the noble Lord that it is important for the Government to be as transparent as possible, but some of these contracts cover things such as payroll services. They are not an attempt to gag businesses or anything like that. The Comptroller and Auditor-General, the head of the National Audit Office, gave evidence to the Exiting the EU Committee in the other place that the use of NDAs in these government contracts was entirely appropriate.

My Lords, are the Government not in rather a strange position of preparing to ensure that we can leave with no withdrawal agreement on 29 March while playing down and hiding what they have done to achieve that and what has been achieved on a reciprocal basis between ourselves and the EU—that planes may fly and hauliers will have licences et cetera? Will the Minister publish a complete list of such arrangements to reassure the House, the country and the other place that we can leave smoothly on 29 March without a withdrawal agreement if none is available?

I know that the noble Lord takes a close interest in these matters, but it remains the case that we do not want to leave with no deal. We do not think that is an advantageous situation. There will clearly be a lot of turbulence if that happens. But we have been open about the consequences. The problem is that the EU will not engage with us on many of the technical preparations necessary because it takes the view that it has negotiated a withdrawal agreement.

My Lords, I think the Minister will find that many in this House have had conversations with businesses that have said to them directly that they cannot describe the impact of Brexit on their business to politicians or the public, or speak out openly, because they are bound by NDAs that they have signed with the Government. Will he go back and look again at these NDAs in some detail, perhaps himself, and put some pressure on his lawyers, because it is very clear from all the conversations that eventually it will surface and become public that these are not just covering narrow, commercially sensitive issues? They are stretching far more broadly because the Government prefer to keep so many issues secret when they should be transparent.

I am afraid I do not agree with the noble Baroness. She cannot expect me to comment on hearsay or private conversations she might have had. If she gives me specific examples of where agreements have been used inappropriately, I will of course look at them.

My Lords, the noble Baroness, Lady Wheatcroft, asked about NDAs across the whole of government. The Minister, speaking from the Dispatch Box in this House, answers for all of government. He has given us the answer only for his department. Could he answer the noble Baroness’s Question in full and tell us what the numbers are across the whole of government?

I would love to answer the noble Baroness, but I simply do not have that information. She will have to ask other government departments what NDAs they have in place.

I can only give the information that I have in front of me; I asked my department how many NDAs were in place and what they were. I will look at the situation and respond in writing if that is appropriate.

I have to say to the Minister that he answers for the whole Government when he speaks from the Dispatch Box. If his department cannot find the information, it should ask other departments. Sometimes, when I listen to his answers, I think that there is a parallel universe: there is the Prime Minister and some of her Ministers and then there are the rest of us. Most of us saw what happened in the House of Commons again last night, when MPs ruled out a no-deal Brexit, yet here the Minister is talking about no-deal Brexit non-disclosure agreements. It is hard to understand the justifications for the secrecy the Government are insisting on. Picking up on the point made by the noble Baroness, Lady Kramer, does the Minister understand and share the frustrations of businesses and sectoral bodies subject to these gagging orders, which in many cases are deeply unhappy with the direction of travel but ultimately are unable to speak out on such a crucial issue?

Again, the noble Baroness is referring to hearsay conversations that she may or may not have had. They are not gagging orders but standard non-disclosure agreements. These are not unusual; they were used extensively throughout periods of Labour Governments as well. Many businesses are speaking out with their opinions on Brexit. Everybody has an opinion on Brexit. Believe me, I get a lot of contributions, a lot of letters and a lot of emails, from businesses and individuals, on the subject of Brexit. Nobody is being gagged.