Adverse publicity clauses: government response

This is the text of two letters, sent to NCVO by the prime minister and the Secretary of State for Work and Pensions, in response to Stuart Etherington's requests for clarification around the use of 'adverse publicity' clauses in government contracts. The requests were made in relation to articles published in the Times on 12 October and 6 November 2018.

Letter from the prime minister, 3 December 2018

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Dear Sir Stuart

Thank you for your letter of 7 November.

As part of the Civil Society Strategy, the Government recognises the importance of the voice of charities and social enterprises in speaking out on behalf of beneficiaries, and in contributing their valuable insights and expertise to the development of Government policy. I maintain that it is vital that the sector's independence and freedom of speech are protected to allow charities and social enterprises to continue providing a voice for everyday people.

Government contracts do include provisions to ensure that providers adhere to the high standards we expect. This helps us to respond in a reasonable and proportionate manner if a provider brings our reputation into disrepute by, for example, breaking employment law or using dangerous, unfair or unethical practices.

However, I want to be clear that these provisions are in no way 'gagging clauses'. They do not stop providers or affiliates from fairly criticising Government departments or Government policy. Furthermore, they do not prevent charities from campaigning for any particular cause and would never be used as a means of attempting to stifle debate or prevent legitimate criticism. Please be assured that the Government will consider ways of clarifying future contracts and grant agreements in order to address the unfortunate perception that has arisen regarding these clauses.

I do hope this provides the clarity you are seeking and would like to thank you, once again, for writing.

Yours sincerely,

Theresa May

Letter from the Secretary of State for Work and Pensions, 8 November 2018

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Dear Sir Stuart,

Many thanks for your letter dated 12 October on our contracts with our charity partners. These clauses do not serve to stifle criticism, so I am grateful for the opportunity your letter affords to provide you with the necessary clarification.

A letter from the Government Chief Commercial Officer was sent to all Government departments on 7 November, clarifying the Government’s position. It clarifies that these clauses in Government contracts and grant agreements are intended to protect the interests of Government in a reasonable and legitimate way. They do not prevent individuals working for any of our contractors from acting as whistle-blowers under the provisions of the Public Interest Disclosure Act 1998, nor do they seek to prevent contractors from raising any concerns directly with the authority.

He confirms that the provisions in question are definitively not “gagging clauses” and it is categorically untrue to say that these clauses stop any contract holders or affiliates from fairly criticising any specific Government department or Government policy. Nor do they prevent charities from campaigning for any particular cause with their own money.

The aim of this type of obligation is to ensure that contractors adhere to good working practices. The clauses enable Government to act where these standards are not met.

Civil society organisations, whether they are employed by the Department or not, have a right to raise their opinions and ideas. I would not want to stifle these conversations and I believe that in my time as Secretary of State I have a track record of listening to concerns and promoting discussion.

Since becoming Secretary of State I have encouraged and acted on feedback from all quarters to improve Universal Credit, and continue to believe that charities and our others partners have an important role to play in the delivery and development of Government policy. We continue to work in partnership with charities and others to deliver Government policy in the interests of the public, while ensuring value for money for the taxpayer.

The Rt Hon Esther McVey MP

Secretary of State for Work and Pensions

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