How British state used celebrity gag order to hide its huge blunder

Times

13 hours ago

The unprecedented use of a superinjunction to cover up a damning and potentially deadly military blunder has raised concerns about government use of the courts to suppress information.
The draconian gagging order, the first to be obtained by the government, can be revealed after a two-year legal battle led by The Times.
The injunction restricted reporting on a massive data breach in which a list of Afghans applying to sanctuary in the UK was leaked and up to 100,000 people were put at risk of being killed by the Taliban.
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Its gagging power was so wide-ranging that journalists were prevented from asking basic questions about how the leak happened, who knew what when and who should be held to account. Parliament was misled and important scrutiny of a multibillion-pound operation to handle the fallout and rescue potentially endangered Afghans was impossible.
In one of the most shocking hearings, behind locked doors in courtroom 27 of the Royal Courts of Justice, lawyers discussed MoD plans to 'provide cover' for the numbers of Afghans arriving in Britain with a statement to parliament.
Successive governments obtained secrecy on an extraordinary scale using a legal tool largely used only by celebrities seeking to stop reporting on their private lives.
The Conservative government first sought an injunction in August 2023, which was then converted by Mr Justice Knowles to a superinjunction on September 1.
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The injunction 'contra mundrum' — Latin for 'against the world', or 'defying everyone' — was originally designed to be in place for a 'time-limited' period of four months. Yet over time government lawyers, fighting for it to remain in place, admitted there was no longer an 'end date'.
It was a 'wholly novel use of the remedy' that 'stifled public debate', the High Court judge Mr Justice Chamberlain warned halfway through the case in May last year as he lifted it. He said in an earlier judgment that it was 'completely shutting down accountability' and was 'corrosive of the public's trust in government', adding the superinjunction was 'likely to give rise to understandable suspicion that the court's processes are being used for the purposes of censorship'.
But the Conservative government appealed against Mr Justice Chamberlain's decision to lift it before last year's general election and it was reinstated by the Court of Appeal shortly after.
The MoD argued that if the superinjunction were lifted it would risk alerting the Taliban to the potential 'kill list', which they could try to get hold of, and would enable them to hunt down up to 100,000 Afghans in hiding or trying to escape the country.
Sir James Eadie KC, the MoD's lawyer, said the act of telling the Afghans their data had been breached 'creates the risk of bringing the house down on everyone'.
The Times and other media argued for the superinjunction to be lifted on the grounds there was a public interest in being able to hold the government to account. Decisions were being made on significant public policy matters, including on immigration, housing and the budget, while the public was kept in the dark with no democratic accountability.
Those tens of thousands of Afghans who were not going to be brought to the UK as a result of the scandal also had the right to know so they could take measures to make themselves safe.
Journalists were told for two years that the security risk justified unprecedented secrecy, yet the superinjunction was abandoned by the government after an independent review by a retired civil servant based on 'open source, and often anecdotal, evidence' from non-governmental organisations, think tanks, and Afghan and international activists.
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It concluded that given the extent of data already available, the dataset was 'unlikely to provide considerably new or highly pertinent information to the Taliban'.
It also noted that the 'glare of publicity around revelation of the data loss would clearly be likely to attract Taliban interest in obtaining it … It is possible that [the government] has inadvertently added more value to the dataset by establishing a bespoke scheme, and through the use of an unprecedented superinjunction.'
The review raised serious questions about whether the injunction was justified for the duration of the time it remained in place and the risk assessment on which it was based. If that was unreliable then there would be a question of whether more than 16,000 Afghans affected by the data incident should have been brought to the UK.
At a hearing on November 11, lawyers discussed an MoD plan to 'provide cover' for the unexpected numbers of Afghans arriving in Britain.
'Provide cover' was a reference to a witness statement by Natalie Moore, the head of the Afghan resettlement scheme, in which she explained a statement to parliament would not mention a secret Afghan Response Route scheme to handle the fallout of the data breach, but there would be an 'agreed narrative' that would provide context for the increased numbers.
'It is a very, very striking thing,' Mr Justice Chamberlain said.
John Healey, the defence secretary, issued a written statement on December 18, the day before parliament rose for Christmas recess, saying the government intended to close 'the UK Afghan resettlement schemes', in a misleading statement that was deliberately vague and left journalists baffled.
The court case is likely to reignite debate about superinjunctions, which became controversial about 15 years ago when a series were granted to protect the privacy of celebrities. Ryan Giggs, the former Manchester United footballer, became the most high-profile in 2011 when he sought a superinjunction to prevent an alleged affair being exposed. He was named by Twitter users and identified in parliament.
A review of superinjunctions the same year, led by Lord Neuberger of Abbotsbury, emphasised that open justice was a 'fundamental constitutional principle' and that injunctions preventing the open discussion of court proceedings should be granted only in exceptional circumstances for a short period of time.
That was called into question by the granting of the Afghan superinjunction, given its two-year length and repeated arguments by members of the media that the extraordinary measure may be doing more harm than good. Never before had a superinjunction been used by a government; in this case on the grounds of risk to life.
The government's superinjunction is also likely to increase scrutiny of the role of special advocates, who represent the interests of excluded parties in cases involving national security. It meant the media was effectively operating blind, because while journalists could raise questions for the advocates to ask in closed session, they could not be told the answers to them and did not know what the government was telling the judge.
Tom Forster, a security-cleared KC and the special advocate in this case, warned the lack of any external and effective scrutiny meant the 'democratic process remains in the deep freeze', adding: 'There are no checks and balances in play.'
In 2012 Mr Justice Chamberlain, then a human rights and public law barrister, emphasised himself how crucial it was to limit the number of cases involving special advocates as the new system was not always fair. He cited the description of their task by the late Lord Bingham, the former lord chief justice, as like 'taking blind shots at a hidden target'.
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There is also a history of ministers being accused of trying to use the courts to hide wrongdoing, most notably the alleged torture of suspects after the invasion of Afghanistan after the 9/11 terror attacks, amid questions of British complicity.
In this Afghan case there was a deliberate decision not to inform members of the intelligence and security committee, a parliamentary body used to scrutinise government activity, despite the peers and MPs being trusted to handle the most sensitive information.
Cathryn McGahey KC, representing the MoD, admitted in February last year that 'we don't have an end date'. In November the same year, when Labour was in power, Mr Justice Chamberlain asked the court: 'It really is £6 billion?' McGahey replied 'It is … yes, it's a very large amount of public money being spent without currently any information to the public.' It later emerged in the same hearing that the planned cost was £7 billion. The MoD later said the £7 billion referred to the cost for all Afghan schemes, not just those affected by the data breach.
In February this year, Mr Justice Chamberlain said: 'You're going to have to say something about all of this, because you're spending £7 billion and you're letting in many thousands of people that you would have been letting in before.'
Over nearly two years, more and more individuals came to find out about the superinjunction, including a law firm representing Afghans who had been affected. It was clear the superinjunction — the longest ever to be imposed, at 683 days — could no longer hold.