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The government's reasons for gagging clauses

26 October 2018

Two written questions, one by an MP and one by a Lord were asked concerning the government’s reason for using ‘gagging clauses” in contracts with charities, voluntary sector organisations, social enterprises and companies.

The reasons given were to:

  • ensure that contractors adhere to good working practices

  • prevent ‘omissions’ which might bring the DWP into disrepute or otherwise harm the confidence of the public in Government.

Gagging clauses do not prevent the contracting bodies from making statements critical of government policy or politicians. They also do not prevent whistle-blowing, which would be unlawful.

So now you know. Or do you?

There is always the possibility, or the public perception of a possibility, that an organisation receiving government funding might be ‘wary of biting that hand that feeds it’. This perception was, no doubt, the reason for Citizens Advice’s statement concerning its funding from the DWP for providing support to UC claimants

In an unrelated news item, we have an example of the wrongful use of gagging clauses, which could only be circumvented by a Lord using parliamentary privilege

Theresa May has promised to improve the regulation of gagging clauses as some employers are using non-disclosure agreements (NDAs) “unethically”. These remarks were targeted at the private sector, but perhaps she should look closer to home, at her own government departments.

The Parliamentary questions

Written question - 180065

Asked by Tom Brake MP (Carshalton and Wallington)

To ask the Secretary of State for Work and Pensions, whether gagging clauses have been used in contracts drawn up between his Department and any charities, voluntary sector organisations, social enterprises or companies with the intention of stopping any criticism of Ministers of his Department.

Answered by: Justin Tomlinson

In contracts used across government, including at the Department for Work and Pensions there are clauses that vary in different forms, typically these clauses require the supplier to ensure that neither it, nor any of its Affiliates, bring the Authority into disrepute by engaging in any act or omission which is reasonably likely to diminish the trust that the public places in the Authority, regardless of whether or not such act or omission is related to the Supplier’s obligations under said Agreement.

These clauses do not prevent the contracting bodies from making statements critical of government policy or politicians, and certainly do not prevent whistle-blowing (as this would be unlawful). They are designed to protect government, to ensure that contractors adhere to good working practices and do not engage in activities that will bring the Authority into disrepute or otherwise harm the confidence of the public in Government.

Written question - HL10674

Asked by Lord Myners

To ask Her Majesty's Government whether any contracts drawn up by the Department for Work and Pensions for suppliers working on Universal Credit include a clause requiring the supplier to do nothing that will attract adverse publicity to the Secretary of State or harm public confidence in her.

Answered by: Baroness Buscombe

In contracts used across government, including at the Department for Work and Pensions and its Universal Credit programme, there are clauses that vary in different forms, typically these clauses require the supplier to ensure that neither it, nor any of its Affiliates, bring the Authority into disrepute by engaging in any act or omission which is reasonably likely to diminish the trust that the public places in the Authority, regardless of whether or not such act or omission is related to the Supplier’s obligations under said Agreement.

These clauses do not prevent the contracting bodies from making statements critical of government policy, or programmes such as Universal Credit or politicians, and certainly do not prevent whistle-blowing (as this would be unlawful). They are designed to protect government, to ensure that contractors adhere to good working practices and do not engage in activities that will bring the Authority into disrepute or otherwise harm the confidence of the public in Government.