Superinjunctions must never be used to shroud mistakes
SUNDAY TIMES PHOTOGRAPHER RICHARD POHLE
I n September 2023 a High Court judge granted the British government its first superinjunction. The order by Mr Justice Knowles prevented not only reporting of a terrible data breach but any reference even to the existence of restrictions.
The unprecedented measure, extended several times at the request of Conservative and Labour governments, finally lapsed last week, allowing the public to learn that the details of 19,000 Afghans who had worked with the UK before the Taliban retook power had been released on Facebook, putting them and others at risk of torture or death. The mistake by an official in the UK special forces headquarters led the government to launch a secret refugee scheme that relocated to the UK more than 16,000 people compromised by the leak, at a cost of £850 million.
The incompetence of the original act, which involved a spreadsheet containing hidden data being shared via email, should not cloud the argument over whether the superinjunction was reasonable. It would have been worse had the individuals affected suffered reprisals from the Taliban. Ben Wallace, then the Tory defence secretary, was undoubtedly terrified of costing lives when he first requested an injunction in August 2023.
But as the injunction became a superinjunction, its very existence became a secret. Its lifespan then stretched into two years. Government officials warned the Commons and Lords Speakers not to allow any parliamentary questions hinting at it. The Labour opposition was not informed; nor was the intelligence and security committee or the defence committee. There came an indeterminate point when the interests of the Afghan breach victims faded and the interests of Whitehall officials grew stronger.
Mr Justice Chamberlain, who took over the case and ruled in favour of maintaining the restrictions in November 2023, said the superinjunction was 'likely to give rise to the understandable suspicion that the court's processes are being used for the purposes of censorship'.
It fell away at midday on Tuesday after a retired deputy chief of defence intelligence, Paul Rimmer, completed a review that concluded the leaked data had not spread as widely as feared and its value to the Taliban, and risk to those named in it, had diminished. Media organisations were allowed to reveal that the resettlement scheme had been hidden even from councils responsible for providing housing at considerable cost to the taxpayer, and that the Ministry of Defence's annual report had been massaged to avoid mentioning that a data incident had been reported to the Information Commissioner's Office.
All this is a disgraceful abuse of the original argument over national security and the safety of the Afghans affected.
The 2022 breach was a blunder rather than a systemic problem such as the infected blood or Post Office scandal. In those cases elaborate and long-running institutional cover-ups were exposed only thanks to media scrutiny, which eventually forced the government to take responsibility.
As Heather Brooke brilliantly argues today, UK officialdom nearly always tends towards obfuscation and non-disclosure. Ministers and civil servants dodge embarrassment wherever they can. We must ensure that the original decision to grant the government a superinjunction is a one-off, not a precedent — and that those who rule us cannot again abuse such a powerful tool.
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