My Lords, I think I will have to disappoint at least three Members of the Committee. First, the work on NDAs, which is an area that does exercise me a great deal, is being carried on under the umbrella of the All-Party Parliamentary Group for Whistleblowing—a very effective group, chaired by Mary Robinson MP. It is very cross-party—it includes the noble Lord, Lord Berkeley, among its distinguished members—and is doing an incredible amount of good work. That is the right place for this to be pursued because it puts it in the very important and powerful context that most of those who personally suffer from NDAs—or, rather, the individual version, normally called a settlement agreement—are whistleblowers.
I am also not going to bring up the individual cases. I would ask the Minister to meet me—although I suppose we will always have to do this virtually—because there are cases of individual whistleblowers that need to be much more central to the attention of the Government. But this is not really the venue to go in detail through their individual cases. They need proper and long discussion. I am also not the right person to put words into those individuals’ mouths—they need their opportunity to make their position understood.
I support this excellent amendment because I think it is rather skilful. It identifies that non-disclosure agreements have long since lost their original purpose. They were meant to be arrangements which would provide confidentiality for proper commercial interests, such as protecting intellectual property or preventing unfair competition. There might be times when they give scope for private discussion, but I think most people can see that that would be very limited.
The amendment also gives primacy to the public interest. What has happened with NDAs is that people are asked to sign them almost as a matter of course in order to get into a meeting, and they have come to be used very widely now simply as a way to make sure that incompetence and wrong behaviour do not get into the public arena.
A number of journalists have done FoIs to try to get a sense of how many NDAs have been signed for HS2, and I was quite shocked to see—looking just at local authorities and civil society-type groups—that there have been some 340. This is just a strategy to prevent transparency in a project that is being paid for by the taxpayer. There should be a presumption of openness and of closure only in those circumstances where it is absolutely required for a valid reason. Right now the assumption is that everything will be secret unless there is some mechanism for opening it up.
As I said, I am particularly concerned about the NDAs which are being used to silence whistleblowers. Again, for people who may not be familiar with this, “NDA” is actually an American term. For individual whistleblowers, these are part of a settlement agreement. As noble Lords know, most whistleblowers are fired pretty much immediately; they lose their jobs and end up in employment tribunals. That drags on for years
and then there is a settlement, or they are threatened with retaliation unless they come to a settlement which includes this vow of silence.
Quite a number of whistleblowers on the HS2 project have gone public—at great personal sacrifice. I feel that they should have proper protection, and that is one of the issues I want to discuss with the Minister. Like many in the transport world—including, I am sure, the noble Lord, Lord Berkeley—I am aware of many more people who have accepted settlement agreements, including those silence clauses, because they were afraid for their personal livelihood and for their family. Whistleblowers are canaries in the mine. They should be nurtured, not silenced. Serving staff should never be afraid to raise concerns. HS2 has not been exemplary—to put it mildly—on this issue. It has behaved very badly, frankly, to quite a number of its own staff. If anyone doubts that, they should look at the way that information on issues around costings and land ownership compensation has finally surfaced. Instead of government and others being aware early on that there is a problem, the whole issue festers and by the time it reaches the ears of anybody in government, as far as I can tell, it is very difficult to correct a lot of the underlying damage.
I have to say this; it is important. Most of the whistleblowers on HS2 are great supporters of HS2. I am a supporter of HS2. But we want the project to be judged on its genuine merits and not incorrect claims. I do not believe that the project is being helped by the way in which information has come out—delayed, challenged and finally admitted. It has scarred the reputation of the project. It has undermined public trust, frankly, in any information that HS2 now provides and that is a real tragedy.
We politicians have to shoulder responsibility for some of this. There is a pattern whereby the Treasury pressures departments to understate project costs. That has infected not just this project but a lot of major infrastructure projects. Crossrail strikes me as another of these tragedies which have suffered from the need to come up with an attractive claim in order to get approval at various stages. Those who are running projects—and sometimes this includes the Ministers, frankly—are really afraid to admit when costings are shown to be wrong because they are afraid they will then be vilified.
In complex, difficult, long-term projects, attempting to assess the issues and the costs up front is extraordinarily difficult and we need to take that on board and understand that information will change, that facts on the ground will change and that in this very complex situation not everybody will get it right, but we need that correction to happen as soon as possible and for the information to be available in the public arena as soon as possible. Open kimono is really the only way in which to generate trust and sensible decision-making. Frankly, we will never get that kind of transparency unless we deal with this NDA problem and the silence clauses in settlement agreements. Change that framework and people will speak out, we will hear the canaries, and it will be possible to take action in a way that is beneficial to the project and fair to the taxpayer and all the various stakeholders.