An NDA from Harvey Weinstein cost me my career – at last, banning them feels within reach

Why are these extreme confidentiality clauses still used in the UK to protect the perpetrators of abuse? asks Zelda Perkins in The Guardian

Samantha Morton (left) stars as Zelda Perkins and Zoe Kazan as journalist Jodi Kantor in a scene from the film She Said, about the journalists who broke the Harvey Weinstein story. Photograph: Universal Pictures/AP

Thu 15 Dec 2022 12.00 GMT

More than two decades ago, I walked into the offices of a law firm in Soho, my 24-year-old self confident that it would help me to expose and address the appalling behaviour of my then boss, the film producer Harvey Weinstein. His attempted rape of a new assistant while we were at the Venice film festival – on her first occasion alone with him – put me on the path I knew was right. The frightening but clear and proper course to justice.

But nothing could have prepared me for the ways in which the legal system would fail my colleague and me so thoroughly, or for the irreversible impact of entering – on our law firm’s advice – into a damages contract containing extreme confidentiality clauses, otherwise known as a non-disclosure agreement, or NDA.

Due to the enormous disparity of power and wealth between Weinstein and ourselves, we were given no choice but to sign the agreement. The NDA not only forbade us from talking about Weinstein’s behaviour, but also about our entire career at Miramax – to family, friends, medical practitioners including therapists, even to HMRC if questioned about the damages payment. We were to use our “best endeavours” to limit what we said in any future criminal or civil action taken against him, and let him know if we were approached . We were not even allowed to have a copy of the document that was to control our lives “in perpetuity”. And it seemed clear to us that we could face jail and financial ruin if we breached it.

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My attempt to report on Weinstein’s behaviour cost me my career. While he collected Oscars, I endured job interviews where men openly questioned me about my “relationship” with Weinstein, but I was gagged from telling the truth. The inability to find a job or speak freely drove me to move my life abroad.

Today Weinstein is in an LA jail, awaiting a verdict from an LA court at his second trial for sexual assault and rape. He is already serving 23 years for sexual assault. She Said, the film about the two New York Times journalists who broke the story, is playing in cinemas around the world, exposing how his reign of terror came to be and the mechanisms that protected him. So why am I still having to talk about this issue, five years on from breaking my NDA to those New York Times journalists? I had believed that by uncovering the system that enabled Weinstein and others in power, things would change. In many places they have, but not here in the UK.

Over the past 25 years NDAs have become the default solution for settling cases of sexual misconduct, racism, pregnancy discrimination and many other human rights violations. They are sold as helping the victim by protecting their name, where in fact a simple one-sided confidentiality clause would do that. In reality NDAs serve only to protect an employer’s reputation and the career of the perpetrator, allowing abusers to continue their behaviour while victims lose both their jobs and the ability to warn others about the individual or the workplace. Settling an employment dispute involves agreeing not to take any further legal action – it should not be a deal to protect or hide abuse.

Zelda Perkins, former personal assistant to Harvey Weinstein, speaks to Parliament’s women and equalities committee in 2018. Photograph: Reuters

In 2018 I, along with others, gave testimony to the women and equalities select committee about how NDAs were being abused in the UK. The Conservative government vowed it would “end NDAs being used unethically” but the recommendations of the select committee and the following consultation by the Department for Business, Energy and Industrial Strategy were ignored. Not one change has been made. And so in workplaces across the country, abusers are still protected – and every week my email inbox is full of desperate messages from people (mostly women) being forced into silence.

They come from all industries – media organisations, corporations and public services. From the testimonies and data we are collecting, we know that NDAs also have a disproportionate impact on those who are already vulnerable. Black women are three times more likely to sign an NDA than white women. Women are five times more likely to sign an NDA than men.

But it doesn’t have to be like this, as we can see from progress in the US, Canada, Ireland and Australia. Over the last five years 15 US states have changed their legislation around NDAs and this November, in a historic move, Joe Biden supported a bill through Congress stopping the use of NDAs in cases of sexual misconduct. Ironically, on the same day, our deputy prime minister, Dominic Raab, claimed in the House of Commons, when questioned about an alleged NDA, that it was merely a “confidentiality agreement”. As a lawyer, he well knows the two are one and the same.

Although it is shocking that in the UK the legal mechanism that protected Weinstein is still protecting abusers, there are glimmers of hope. Earlier this year the Department for Education, in conjunction with Can’t Buy My Silence, the campaign I co-founded with Prof Julie Macfarlane in 2021, introduced a voluntary pledge for UK universities and colleges of higher education to stop using NDAs. So far 60% in England have signed up, meaning 1.5 million students are protected from being gagged about abuse.

The common sense behind this call has clearly been heard elsewhere – as last week the Lords added an amendment to the new higher education freedom of speech bill, banning the use of NDAs in universities and colleges in cases of sexual harassment, bullying or discrimination. If this becomes law then there is an even clearer signal to our government that it is time to change the system and outlaw this legal tool in all workplaces. To add to this the government has just backed legislation that would make sexual harassment in the street a criminal offence – this is a huge stride, at last acknowledging and protecting women from the daily abuses they endure.

There is nothing ethical about a legal agreement that hides bullying, racism or any form of assault and works purely to protect powerful wrongdoers. It would be both morally correct and economically wise to ban the use of NDAs. What a legacy it would be if Rishi Sunak were to make all workplaces safer and more productive – protecting not just women but anyone who faces discrimination or harassment.

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Protect the NHS – but don’t protect it to death

Harry Quilter-Pinner in The Guardian

 

The NHS, as portrayed at the opening of the 2012 London Olympics. Photograph: Julian Simmonds/REX/Shutterstock




Dancing doctors, uniform-clad nurses and children jumping on hospital beds. There are very few countries that would include a celebration of their healthcare system in the opening ceremony of the Olympic Games. But this was the sight that greeted the millions who tuned in at the start of London 2012. After all, as former chancellor Nigel Lawson said: “The NHS is the closest thing the English people have to a religion.”

Now the country will once again celebrate the NHS, as it turns 70. And so we should. Across the globe, 400 million people still don’t have access to essential healthcare services. Thanks to the NHS, no one in the UK faces this injustice. It is there for us all – regardless of race, sexuality, gender or financial means – at our times of greatest need.

But we must also take this opportunity to stop and reflect. How good is the NHS? What do we want for its future? And what do we need to do to make it better?

A new report attempts to answer some of these tricky questions. It shows that, despite the rhetoric, in many ways the NHS is deeply average. In the authors’ words “the NHS performs neither as well as its supporters sometimes claim nor as badly as its critics often allege”. Shockingly, it finds that if you suffer from cancer, a heart attack or a stroke in the UK, you are more likely to die early than in other developed countries. 

This reality jars with a national perception of the NHS as world leading. Some will jump on this as an opportunity to call for radical change: perhaps a shift to a social – or even a private – insurance model. This would be a mistake. Fundamentally, the NHS is sound: its “free at the point of need” principle ensures that getting ill doesn’t mean getting poor. Moreover, there is strong evidence that it is more efficient than its marketised equivalents in the US and Switzerland.

Money is part of the answer as to why the NHS underperforms, compared with other systems. We spend less on healthcare than most other countries of a similar size and income level: just 9.7% of GDP compared with around 11% in both Germany and France. It should not come as a surprise that with average levels of funding come average levels of care. Theresa May’s recent “birthday present” – a long-term funding settlement for the NHS worth an additional £20bn a year by 2023 – will start to address this, though many predict that it will not be enough in the context of a growing and ageing population.

But money alone is not the solution: the NHS also suffers from a lack of reform. In places where the NHS has embraced best practice it is undoubtedly world leading. Stroke care is a good example. In 2010, London went from 34 hospitals treating stroke sufferers to just eight new centres of excellence. This has resulted in 400 lives saved per year across the capital. There have been attempts to replicate this nationwide. But in too many areas these changes, which involve consolidating services into fewer, more specialist centres, have been opposed by both the public and politicians. 

There are similar debates about moves to embrace new technologies in the NHS. The evidence is clear that artificial intelligence and robotics could fundamentally transform health and care. The government recently announced funding to help save 30,000 lives a year through technology-enabled diagnosis of cancers. But all too often, people see data-sharing as a breach of privacy and the rise of robotics in the NHS as an attempt to cut costs.

In some ways, this reluctance to embrace change is unsurprising. We all have a strong emotional and cultural attachment to the NHS. We are understandably protective of it. And many see the NHS as the last vestige of an endangered postwar consensus. They are fearful that it will go the same way as the rest of the welfare state, becoming watered down, outsourced and underfunded.

But in looking to protect the NHS there is a real risk that we end up “killing it with kindness”. All change is not bad change. As Lord Darzi’s recent review of the NHS has made clear, “high-quality care is a constantly moving target: to stand still is to fall back”. This would not only be a travesty for those who suffer as a result; it would also fuel the arguments its critics. When the great reformer, William Beveridge, proposed the creation of the NHS during the second world war, he was focused not on protecting existing achievements but on embracing the future. On its 70th birthday, it is vital that we do the same again.