Lynn Ruane (Independent)

I did not initially have any questions but I had similar concerns as others that were previously raised. I did not have any additional questions until the Minister’s contribution. My questions can probably be answered quite easily without me having to look at submitting future amendments on Report Stage. This may see seem like a side point compared to the conversation here today, but I ask the Minister to bear with me.

The Minister mentioned references as an example of something that may be protected; for example, if an employer gives a reference for somebody. For me, that brought up a concern around the use of non-disparagement clauses, which are being written into contracts before someone takes up employment. This is being done in order to future-proof any hypothetical situations that may occur between an employer and an employee in a certain profession or whatever. The reason I bring this up is specifically in relation to non-disclosure agreements. Currently, the non-disclosure agreement legislation - I introduced the initial Bill before the Government passed its own version last year - does not address retrospective non-disclosure agreements. What is the role of this legislation in relation to employment references? I ask that question in the context of circumstances in which somebody in employment - there may not have been a criminal case - may have a record of harassment, bullying or other particular behaviours. What I am hearing is that an employer would be protected in what they say about that person in a reference. The problem is that people may be giving references for problematic employees in order to move them on to other vulnerable places of work. This is especially important if that person has harassed women within the role. I say all of this from experience. It is where the initial non-disclosure agreements Bill came from.

A non-disclosure agreement may mean that a manager who is providing a reference, having been asked to do so by his or her senior, has to collude in giving a false reference for an employee in an attempt to pass the trash, which is what it is called internationally. This means that the employee in question is basically protected within the reference by the non-disclosure agreement. The employer gives a false statement about the employee purely to move them on because they are so problematic within that workforce. When the Minister spoke about how references will be protected, I wondered how that fits with the new non-disclosure agreement legislation, which provides that such agreements are no longer legal. How we can retrospectively protect people by ensuring false statements are not given in references, which to me seems completely and wholly wrong?

We must also look at the use of non-disparagement clauses.Currently under non-disparagement clauses an employer has the potential to take someone to court if, perhaps, they called out the employer. I will use a random example of a deli that is supposed to freeze a certain food after a certain amount of days and they do not do so. Perhaps an employee takes umbrage with this and goes out on social media and speaks about the practices there are blah blah blah. It may be, however, that it is actually written into the contract that you cannot disparage your employer in any way, shape or form. How do non-disparagement clauses, which also I feel are wrong, intersect with the defamation legislation, section 11 specifically?

I suppose Members are all very focused on how the media may represent us or other people in the public eye, but there are people who are a lot more vulnerable who are commented on in public and in the media a lot. It is often not a cohort whom people want to protect from further reputational damage because I think there is a feeling that this cohort's reputation is already damaged and they do not deserve to reassume a good name. Consider, for example, people currently serving prison sentences. The red-top media in particular will often say "a source has told us" or "a source has said". Even if this is proven wrong, the person was never taken to court or the situation was not actually as it was, these people are so vulnerable and so on the margins that they will never be in a position to actually take a case against those newspapers. This relates also to the language of hyperbole that some of the red-top newspapers use. They may say things that are quite fictional like "psychotic" or "doesn't show any remorse", a view that may be given by a secret contact, which is usually a prison officer who has no contact in a therapeutic way with the individual.

What do we believe to be a good name? On a very philosophical level, does someone have such a right? Reputational damage has already happened to them, potentially from being involved in criminality, they engage in psychology and rehabilitation, get their degree through the Open University or in college, they start volunteering, they have a job on the land and they are working their way out, and then we we allow the newspapers to write anything about them because it is like once you have a good name, you only have it as long as you have that forever. Does a person have an opportunity to develop and reassume a good name, good character and good reputation? If we do not have an opportunity to develop our reputation and our name and to right the wrongs we may have done in the past, that is really problematic because we do not give anyone a chance to re-engage in society and to be able to become trustworthy citizens who want to contribute to society in a much better way and do no more harm. How do we ensure that people who are much further away from systems and with no platforms are also protected, whether it is through the original section 26 in the original Act or through this legislation? What do we actually understand to be a good name and do we allow people to reassume their good name because they may have got into particular situations due to particular circumstances?

On the right to reply, with politicians and other people, if something is in the media, in most cases people are offered the right of reply. When people are in much more marginalised situations, especially if they are serving a sentence, nobody is given the right of reply. Does that mean that, even though your liberty is removed and certain rights are removed due to imprisonment, defamation law does not apply to people in prison? Do they not have those same rights of right of reply, which do not currently happen?

The other question relates to public interest and public benefit and the difference between the two. The original defamation legislation referred to "public interest" and qualified that with "public benefit". In this new section, it only says "public interest". What is the difference between those two thresholds? I would imagine that public interest can be a much wider thing and that public benefit would be where you have to show that it actually benefits the public, which obviously feels like a different bar from just public interest. Will the Minister give me insight into what the difference is between public interest and public benefit?