Written by This article builds on investigative reporting by David Hencke and asks a narrower accountability question: if the Solicitors Regulation Authority says non-disclosure agreements must not deter protected disclosures, reports to regulators or lawful access to advice, what does meaningful enforcement look like when complaints about NDA misuse appear to produce so few visible outcomes?
Publication snapshot
- The SRA accepts that NDAs are not unlawful in themselves, but warns that they must not be used to prevent reporting to regulators, law enforcement, or disclosures protected by law.
- Reported FOI-based figures indicate at least 41 complaints to the SRA about improper NDA use by solicitors over four years, with fewer than five resulting in reported rebukes.
- The SRA’s own thematic review identified power imbalance, short deadlines, limited employee advice and over-reliance on templates as practical risks in workplace NDA use.
- The policy issue is not whether confidentiality can ever be legitimate. It is whether regulation is strong enough when confidentiality is used to chill rights, complaints or public-interest reporting.
Why this matters
Non-disclosure agreements can have a legitimate function. They may protect confidential commercial information, settlement terms, trade secrets, personal information and the privacy of parties resolving a dispute. The problem arises when confidentiality is stretched beyond that legitimate function and begins to operate as a private restraint on public-interest reporting, statutory rights or regulatory accountability.
For employees, whistleblowers and complainants, the practical effect can be severe. A clause does not need to be enforceable in court to have a silencing effect. If it is drafted in intimidating language, backed by indemnities or clawback threats, or presented under artificial time pressure, it may deter someone from speaking to a regulator, seeking proper advice or understanding the rights they still retain.
That is why the SRA’s role matters. Solicitors do not merely draft private agreements. They are regulated professionals whose work can shape whether a person understands the difference between legitimate confidentiality and an attempt to suppress lawful disclosure.
The enforcement gap, in numbers
The concern sharpened after reporting on FOI-based figures said the SRA had received at least 41 complaints about improper NDA use by solicitors over a four-year period. More than two-thirds were said to have required further investigation, but fewer than five reportedly resulted in solicitors being rebuked by the regulator.
reported complaints about improper NDA use over four years
reported cases said to have required further investigation
reported outcomes involving solicitor rebuke
Those figures should be treated with source discipline: they do not prove every complaint was well-founded, and they do not show the full content of the SRA’s casework. But they do raise a direct regulatory question. If misuse of NDAs is serious enough to justify a warning notice and thematic review, the public is entitled to ask why visible enforcement appears so limited.
One reported Sellafield-related dispute illustrates the type of risk that causes concern: confidentiality wording was said to have touched information-rights requests and a regulatory complaint. The wider point does not depend on one case. A regulator assessing NDA misuse must be able to distinguish legitimate confidentiality from language that chills statutory rights, public-interest reporting or access to oversight bodies.
What the SRA itself says
The SRA’s warning notice is not anti-NDA. It expressly recognises that NDAs are not prohibited. Its concern is misuse: clauses, tactics or drafting that prevent, impede or deter proper reporting and disclosure.
Key distinction
Legitimate confidentiality
Protecting genuinely confidential information, sensitive settlement terms, commercial material or personal data where the clause is clear, proportionate and does not override legal rights.
Improper pressure
Using confidentiality, warranties, indemnities, clawbacks, artificial deadlines or professional authority to deter protected disclosures, regulator complaints, law-enforcement reports or access to advisers.
The warning notice says solicitors should not attempt to prevent anyone from providing information to the SRA or another body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest. It also identifies unfair advantage, oppressive tactics and discouraging legal advice as regulatory risks.
The difficulty is not the absence of regulatory language. The difficulty is whether that language is converted into enforcement, supervision and public learning when complaints are made.
Rights NDAs must not chill
A properly drafted NDA should make clear what is protected and what is not. It should not leave the employee, complainant or whistleblower guessing whether they can speak to a regulator, the police, a legal adviser, a doctor, a counsellor or another professional bound by confidentiality.
Regulatory complaints
NDAs must not be used to prevent or deter reporting misconduct to the SRA or an equivalent regulator.
Protected disclosures
Where whistleblowing protection applies, confidentiality wording should not obscure the statutory route for protected disclosures.
Information rights
Subject access rights and access-to-information regimes raise separate statutory issues and should not be treated as bargaining chips in settlement drafting.
Professional advice and support
People should be able to obtain proper legal, medical, tax or counselling support without being frightened away by overbroad confidentiality language.
The Information Commissioner’s Office describes subject access as a fundamental right that allows people to obtain a copy of their personal information and understand how it is being used. It also explains that complaints can be made to the ICO where data protection rights are infringed, including where a controller fails to comply with a SAR.
Why reform must go further than better wording
The government recognised the misuse problem in 2019, when it consulted on measures to prevent confidentiality clauses being misused in situations of workplace harassment or discrimination. The government response proposed clearer limits, better independent advice and enforcement consequences for non-compliant clauses.
Those reforms matter. But better drafting alone will not solve the regulatory problem if the practical incentives remain unchanged. Employers may still seek maximum silence. Employees may still have limited funding, limited time and limited access to independent advice. Solicitors may still rely on templates. Regulators may still treat problematic clauses as isolated drafting errors rather than evidence of a wider market practice.
The regulatory question
If the SRA’s own review identifies imbalance of power, short deadlines, low levels of specific training and over-reliance on templates, then the issue is not simply whether a clause can be improved. It is whether solicitors and firms face meaningful consequences when confidentiality is used in a way that deters lawful disclosure.
The accountability test
A serious response to NDA misuse should be measured against outcomes, not slogans. A warning notice is useful only if complainants, lawyers and the public can see how it is applied.
For the SRA
- Publish clearer anonymised case studies showing when NDA misuse crosses the enforcement threshold.
- Explain how complaints are categorised where NDA misuse is mixed with employment, whistleblowing, data protection or public-law concerns.
- Identify whether repeat firms, template clauses or market practices are being monitored.
- Show how vulnerability, lack of representation and artificial time pressure affect enforcement decisions.
For solicitors and firms
- Stop treating NDA clauses as routine boilerplate.
- Record advice on protected disclosures, regulator reports and access to professional support.
- Challenge overbroad wording rather than passing it through as a standard term.
- Report serious concerns rather than assuming the opposing side will fix them quietly.
The credibility of legal regulation depends on the gap between what the rules say and what regulated professionals learn from enforcement. If the only visible message is that NDA misuse attracts guidance but rarely sanction, the deterrent effect is weak.
Closing point
The point is not to abolish confidentiality. The point is to stop confidentiality being used as a private mechanism for suppressing lawful disclosure, regulatory scrutiny and public-interest accountability.
The SRA has already identified the risk. Government has already recognised the misuse problem. The remaining question is whether enforcement will become visible, consistent and strong enough to change behaviour.
NDA review before the wording hardens into risk
Get a free written assessment before you sign, challenge or rely on an NDA
Before signing an NDA, relying on one in a workplace dispute, or threatening enforcement against someone who wants to speak to a regulator, it is worth checking whether the wording is clear, proportionate and legally safe.
Legal Lens can provide a preliminary written assessment of confidentiality wording, settlement pressure, whistleblowing implications, information-rights issues and regulatory-route risks.
Independent Legal Lens consultancy. This is not a regulated solicitors’ firm. A preliminary assessment is not a substitute for regulated legal advice where your situation requires a solicitor.