Labour’s ex-head of disputes will argue whistleblowing laws allow him to give testimony to journalists on the party’s handling of antisemitism allegations, Sky News understands.
Sky News has obtained a copy of the “non-disclosure agreement” between the Labour Party and Sam Matthews, its former official.
The party is likely to use the settlement, signed in July last year, as the basis for potential legal action against Mr Matthews following his decision to appear in a documentary on Labour’s handling of antisemitism complaints.
It is understood Mr Matthews’ legal team will argue whistleblowing laws allow him to give testimony to the BBC Panorama programme, due to be broadcast on Wednesday, despite it breaking the terms of the agreement.
And that the wording of the contract does not comply with guidelines set out by the Solicitors Regulation Authority.
Although it largely follows the template of a standard settlement agreement following a redundancy, it specifies that Mr Matthews will not “disclose, publish or reveal to any unauthorised person an incident, conversation, or information concerning any officer, employee, member, supporter, fundraiser of, or donor to the Employer [the Labour Party] which has come to his knowledge during the continuance of his employment”.
It sets out an agreement not to “publish, procure, facilitate, provide information for or encourage the publication of any such matter in any book, newspaper, periodical or pamphlet or by broadcasting on television, cable, satellite, film internet or any other medium now known or devised after the date of this Agreement, or by communication to any third party including a representative of the media”.
However, the agreement also specifies that an exemption exists to such confidentiality agreements where it is “authorised or required by the law”.
Mr Matthews’ lawyers are expected to argue his testimony to Panorama would amount to a “protected disclosure” under law.
At the weekend, The Sunday Times published a letter sent to Mr Matthews from Carter Ruck, the law firm representing the Labour Party, which argued giving information to journalists did not meet that exemption.
The letter said: “If you felt unable to report [concerns] via the relevant mechanisms within the party, you would have been and remain fully entitled to report those concerns to the appropriate external authorities.
“Such reports would in any event be likely to amount to protected disclosures which neither your former contract of employment nor the Agreement would have sought to prevent.
“Unfortunately, however, what you instead appear to have done is disclose to one or more journalists information which you knew to be highly confidential.”
Former justice secretary and Labour peer Lord Falconer questioned this approach, posting on Twitter: “This is deeply wrong.
“The public interest supports fullest public disclosure of those matters to ensure AS [antisemitism] cases are handled properly by Labour.
“It is hypocritical to campaign against NDAs [non-disclosure agreements] but use them to prevent embarrassment to Labour.”
This is deeply wrong. The public interest supports fullest public disclosure of those matters to ensure AS cases are handled properly by Labour. It is hypocritical to campaign against NDAs but use them to prevent embarrassment to Labour. https://t.co/PpIJLG8xZX
— Charlie Falconer (@LordCFalconer) July 6, 2019
Lawyers for Mr Matthews are understood to believe the agreement fails to meet guidelines set out by the Solicitors Regulation Authority in March last year.
The guidelines stipulate that any agreement should not prevent, or seek to impede or deter, a person from making a protected disclosure under the Public Interest Disclosure Act 1998; and should “be clear about what disclosures are not prohibited by the NDA”.
Labour has long campaigned for NDAs to be banned, but Labour’s shadow international trade secretary Barry Gardiner defended the use of agreements to protect confidential information.
Mr Gardiner told Sky News’ Sophy Ridge on Sunday show the party did not use non-disclosure agreements to “hide anything that is illegal or improper”.
“We use gagging orders only to stop former members of staff from leaking confidential information, where we have an obligation to protect individuals, and for doing that in a party political or partisan way,” he said.
Labour’s shadow chancellor John McDonnell also defended the party’s approach.
“What is happening is that the Labour Party is reminding [former employees] of their confidentiality agreement because you can’t have people, particularly when you are dealing with individual cases, [divulging] information about individual members – that can’t be right,” he told BBC’s Andrew Marr Show.
However, Labour’s deputy leader Tom Watson was critical of the threat of legal action against Mr Matthews.
“Using expensive media lawyers in attempt to silence staff members is as futile as it is stupid,” he posted on Twitter.
“It’s not the Labour way and I deplore it.”
It is understood Labour general secretary Jennie Formby obtained specialist legal advice and altered the confidentiality clauses set out in the party’s standard settlement agreements when she took on the role.
A party source said confidentiality clauses used under the previous administration were “cumbersome and ambiguous”, which is why the change was made.
A Labour Party spokesperson said: “Labour’s standard terms of settlement were drawn up with advice from specialist external solicitors to contain completely transparent confidentiality provision and specific exceptions for protective disclosures.
“Like any organisation, the party has used standard settlement agreements which require former employees to maintain the confidentiality of private information obtained during their employment, but does not seek to use settlement agreements which stop the disclosure of discrimination, harassment or victimisation.
“In government, the Labour Party would legislate to ban agreements which stop the disclosure of discrimination, harassment or victimisation.”
Labour’s ex-head of disputes will argue whistleblowing laws allow him to give testimony to journalists on the party’s handling of antisemitism allegations, Sky News understands. Sky News has obtained a copy of the “non-disclosure agreement” between the Labour Party and Sam Matthews, its former official.