The government has today published guidance on new legislation which will come into effect on 1 October 2025, affecting confidentiality clauses, also known as non-disclosure agreements or ‘NDAs’. The guidance explains the changes and what they will mean for businesses and individuals who use non-disclosure agreements. These changes were made through section 17 of the Victims and Prisoners Act 2024 and they extend and apply to England and Wales only.
The guidance applies to NDAs in all sectors including business as well as the arts, charity, education, healthcare and technology sectors and applies in respect of all relationships and circumstances where non-disclosure agreements are used, not solely employer and worker relationships.
The statute clarifies that NDAs cannot be enforced insofar as they seek to prevent victims of crime (as defined) from reporting the crime to the police, as well as extending these protections to certain other disclosures, including those necessary for victims to access confidential advice and support needed to cope and recover from the impact of crime. NDAs signed on or after 1 October 2025 will not be unenforceable to the extent that they seek to prevent such disclosures (noting that in some cases they may not have been enforceable in any event having regard to other statutes and the common law).
Further, individuals who are a victim of crime or reasonably believe they are a victim of crime, and who have signed an NDA on or after 1 October 2025 will be allowed to disclose information to certain individuals for certain purposes related to “relevant conduct” (see below, even if the NDA seeks to prevent them from doing so).
Under section 17 of the Victims and Prisoners Act 2024, NDAs signed on or after 1 October 2025 will not be enforceable against victims of crime in relation to the disclosure of information about relevant conduct to the following groups and for the following purposes:
Disclosures by victims of crime about relevant conduct to the above groups and for the above purposes are known as “Permitted Disclosures”.
The definition of a victim of crime that applies to these changes is set out in sections 1(1) and (2) of the Victims and Prisoners Act 2024, i.e., someone who has suffered harm as a direct result of being subjected to conduct which constitutes a criminal offence in England and Wales, or any of the circumstances outlined in section 1(2) of the Victims and Prisoners Act 2024. This is regardless of whether they have told anyone about that crime, including reporting it to the police. There does not have to be a formal investigation or a conviction for someone to be a victim of crime or to reasonably believe they are a victim of crime. Furthermore, any reference to “victims of crime” in this guidance should also be read as a reference to individuals who reasonably believe they are a victim of crime.
“Relevant conduct” means the criminal conduct that makes the person a victim of crime.
The changes will not remove any protection already afforded by the common law or repeal provisions in the Official Secrets Act 1989.
Section 43J of the Employment Rights Act 1996 continues to invalidate any section in an agreement e.g. non-disclosure agreement, that attempts to prevent a worker from making a “protected disclosure” (whistleblowing). Any part of an agreement that tries to stop a worker from making a “protected disclosure” is invalid and cannot be enforced.
The full guidance can be accessed here: Victims and Prisoners Act 2024: changes to non-disclosure agreements – GOV.UK
Deshpal Panesar KC and Eleena Misra KC have been advising the Bar Council of England and Wales on NDAs and the anticipated changes to the law and will be running a masterclass on NDAs later on in 2025. If you would like to be added to the notification list for this event at Old Square Chambers please email events@oldsquare.co.uk.
