What some might say

June 7, 1996

The second report of the Nolan Committee on Standards in Public Life recommended that, where confidentiality clauses in severance agreements were "absolutely necessary", those signing them should be reminded of the ways in which legitimate concerns could be raised with the appropriate authorities.

The severance agreement between Robert Kirby-Harris and Middlesex University contains no such limitations or let-outs. That agreement, of course, predates the committee's hearings. Indeed the episode was voluntarily referred to by David Melville, Middlesex's vice chancellor, in his Nolan testimony. Mr Melville does not now and did not then consider the confidentiality clauses to be "gagging clauses".

The university clearly aimed not to run into trouble, as Huddersfield University had over the severance payment for its departing vice chancellor, and cleared the agreement with the Higher Education Funding Council. Concern seems to have been over the amount of severance and the use of public money, not the confidentiality clauses. This suggests that such clauses are not particularly remarkable.

In industry they would not be, though the modest level of payment would. But then Lord Nolan agreed with the earlier report of Sir Michael Davies on University College, Swansea, that "comparisons with the requirements of confidentiality normal in commercial business are misleading and misguided".

However, these days institutions can all too easily be operating near the margin of viability, and commercial activities have become necessary to survival. Public acrimony may damage those activities. It is tempting for managers to seek control over what former, possibly disgruntled, employees may say.

If academic institutions are to be different from commercial companies such temptations should be resisted. Though Lord Nolan's report appeared to flatter higher and further education, it contained recommendations which imply criticism and require action. One concerned the appointment of governors, recommending a maximum of two four-year terms and open appointment procedures. Such rules can fend off accusations of undue cosiness, important when the going gets tough.

Another concerned the inadvisability of confidentiality clauses. Institutions would be wise to review all their procedures in the light of Lord Nolan's report before those with grievances make damaging use of arrangements which fall short of his exacting standards.

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