The Post Office scandal shines an unforgiving light on NDA abuse

The writer is co-founder of Can’t Buy My Silence

Between 1999 and 2015, upwards of 900 UK sub-postmasters were wrongly prosecuted due to faults in Fujitsu’s accounting software, Horizon, and the Post Office’s rogue accusations. Hundreds more lost their businesses, homes and, in some particularly tragic cases, their lives, due to being wrongly accused of theft, fraud and false accounting.

Martin Griffiths, who had managed his Hope Farm Post Office in Great Sutton for 18 years, killed himself after spending more than £100,000 of his own money to meet accounting shortfalls. In the wake of his suicide, Post Office lawyers offered his widow, Gina, a settlement agreement in exchange for her silence. She was given 24 hours to decide whether to sign a non-disclosure agreement that would prevent her from speaking about the circumstances leading up to her husband’s death.

This was not an isolated incident: NDAs were integral to the Post Office’s efforts to suppress knowledge of the problems with Horizon. One gagging agreement even inhibited the evidence of a witness in the case of Alan Bates before the High Court. 

I, too, have had first-hand experience of the life-changing effects that NDAs inflict on those who sign them. I signed mine 25 years ago after trying to report my boss, Hollywood producer Harvey Weinstein, for sexually assaulting a colleague. Signing had irrevocable consequences on my life and essentially brought my career to an end when I was just 25. I broke my NDA in the Financial Times in 2017 and with the amplification of the #MeToo movement helped to shine a light on the systems that enable the powerful to hide the truth, gag victims and continue to cause harm unchecked.

Though I may not have worked in Hollywood again, my story eventually had a Hollywood ending: Weinstein is now a convicted sex offender and will see out the rest of his life in prison. But, like the Post Office victims, I had to wait many years for justice to be served and I am still fighting, with the campaign Can’t Buy My Silence (CBMS), to make sure what happened to me won’t happen to anyone else.

In many ways, my experience lines up with the perception of NDAs in the public consciousness: a larger-than-life antagonist in the form of Weinstein, whose crimes were sexual in nature and whose victims were high profile. In reality, however, most people’s experience with NDAs more closely resembles that of the sub-postmasters and their families: ordinary people whose suffering is not so lurid.

Look for instance at the story of Claire Laycock, who recently broke her NDA with her union, the TSSA. Her story of sexual harassment and her bravery did not receive widespread media attention but her actions made sure that a perpetrator was exposed. For the Post Office victims it took years of dogged campaigning, a public inquiry and ultimately a television drama for the failings of the Horizon system and their employer to become public knowledge. How much sooner might justice have been delivered had the sub-postmasters not been gagged by NDAs? And while it remains legal to gag victims of injustice, how can we ever be certain that justice isn’t being denied to others?

From Tearfund to McDonald’s to Odey Asset Management, the past few years have revealed the extent to which the use of gagging clauses and NDAs is endemic across all industries. The Post Office scandal again shows the degree to which NDAs make miscarriages of justice possible, how they keep witnesses away from court proceedings, silence whistleblowers and compound the trauma for victims of abuse.

Professor Richard Moorhead, who is part of the team investigating the legal outcomes of the Post Office’s actions, tells me: “NDAs have been a key cover-up weapon. [They have] silenced experts, victims and, I believe, . . . lawyers and prevented information getting to courts and so helped mislead them.”

At prime minister’s questions last week, in response to a question from CBMS ally Dame Maria Miller regarding the role of NDAs in the Post Office scandal, Rishi Sunak admitted that “the ability to speak out about things is key to unlocking justice”.

Yet in the case of the sub-postmasters and the thousands of victims who have come to CBMS, we know that NDAs are deliberately used to stop victims from doing just this. Overturning convictions and pursuing compensation are part of redressing the harm done by the Post Office. But this is not sufficient to ensure there isn’t a repeat of this concatenation of grievous miscarriages of justice.

If the government is serious about “unlocking justice” for victims, it must take concrete action and outlaw abusive NDAs across the board, so that those who have suffered injustice can never be gagged again.