Political superinjunctions put governments beyond the law – these powers must never be used again

Independent

16-07-2025

In his first remarks about the Afghan leak affair, Sir Keir Starmer declared to the Commons that former Conservative ministers have ' serious questions to answer ' over the data breach.
The prime minister was right about that. However, he should resist the temptation to over-politicise the issue, even as parliament and the media intensify their efforts to uncover the truth.
Sir Keir has, after all, been in power for a year. While, in principle, his government could have moved more quickly to lift the extraordinary superinjunction, which shut down any possibility of scrutiny of this blunder for three years, we must remember it was the Conservative government that applied for the injunction in the first instance.
Sir Keir, a very senior lawyer who well understands such matters, was reportedly 'angry' when he became prime minister and learned of the gagging order. Meanwhile, the defence minister, John Healey, acknowledged the scandal's potential to erode political trust, expressing that he is 'deeply concerned about the lack of transparency' caused by the superinjunction.
The principal culpability in this tragic fiasco obviously lies with the party in power at the time – it was the Conservatives' mess, but Sir Keir will also need to explain why he didn't order his government lawyers to lift the superinjunction immediately. The staggering cost of the cover-up was beginning to look 'bonkers'. Mr Justice Chamberlain called the statement to provide 'cover' a 'very, very striking thing' and said it was 'fundamentally objectionable' that government decisions about thousands of lives and billions of pounds were made without scrutiny from parliament or the public.
We certainly do know that this whole episode, and the treatment of Britain's former Afghan allies, has been shameful. In fact, that would be true even if the data breach had never happened. The Independent is proud of its campaign to secure just treatment for the members of the Afghan special forces who served alongside troops from Britain, the US and other nations in that long, pitiless 'war on terror'.
Many of these fighters in the Afghan forces, known as the 'Triples' after their unit numbers, had been effectively abandoned as soon as Kabul fell, long before the leak. There were schemes to offer Afghans in danger refuge in the UK. That was an honourable thing to do, but in practice the Ministry of Defence and the Home Office showed great reluctance to act with any urgency after the British and Americans had scuttled out of the conflict, and many Afghans were left in limbo – hiding in Afghanistan or else in Pakistan, permanently at risk of being deported to their deaths.
It bears repeating that these are not 'economic migrants' and would never have dreamt of coming to live virtually on the other side of the planet had George W Bush and Tony Blair not decided to invade their country in 2001. The Triples did not ask for that, but they did volunteer to fight with the allies for freedom. They were promised victory over the Taliban; instead they were left behind.
Now, we discover that, without their knowledge, they were placed in mortal danger by the leak; even after it was brought to the attention of British ministers – and long after specific details about their role and their family members had found its way out of the Ministry of Defence and, in part, on to Facebook.
Betrayed in the chaos of the allies' withdrawal in August 2021, they were thus betrayed once again, even after the government learned of the data breach in August 2023 and did so little to get them to safety, or even to inform them.
The Independent publicly raised their plight three months later, in November 2023, when their jeopardy was even more acute. Following this publication's investigation, the Ministry of Defence admitted their decision-making was 'not robust' and announced a review of around 2,000 applications to the resettlement programme.
It transpires that about a half of the Afghan ex-commandos initially identified for relocation to the UK were affected by the data breach. The Triples only found out about the blunder as the legal order was lifted this week.
Mr Healey now tells parliament that he can't say if any Afghan heroes died at the hands of the Taliban because of the incompetence, negligence and indifference of the British government. That's a low point.
Indeed, there are questions to answer. There will be parliamentary inquiries. The press, at last, is able to try to hold those responsible to account, and the ministers and officials involved will have an opportunity to explain and to defend themselves.
Everyone from the member of the armed forces who sent the original email to the wrong people on a computer outside the official network to the then prime minister, Rishi Sunak, will be required to give evidence. So should Sir Keir and Mr Healey, who inherited the problem, and launched the Rimmer review into the current risks to the Afghans.
Successive chancellors will need to account for how the cost, amounting to billions, was dealt with secretly. Internal memos and notes of meetings should be disclosed. Ben Wallace and Sir Grant Shapps, the defence secretaries in charge at the time of the breach and later legal actions, respectively, will be key witnesses.
Even the speaker of the House of Commons, Sir Lindsay Hoyle and his counterpart in the upper chamber, John McFall, will have to give their own version of events and explain their apparent acquiescence in the suppression of parliamentary privilege, which, as Sir Lindsay himself says, 'raises substantial constitutional issues'. Having a speaker appear before a select committee may be unprecedented, but so is everything about this story.
After such a long period of intense secrecy, the details of this scandal are still stumbling into the bright glare of public scrutiny. There will be much more embarrassment and shame to come.
Transparency has been restored, thanks to our free press, but not yet full accountability. This scandal shows that once this veil of secrecy is in place for legitimate reasons, it can be all too easily used to cloak terrible blunders and duck scrutiny. There are probably no other such political superinjunctions in force, but there should never be any. The law must be changed so that one of the British legal system's most formidable weapons cannot be secretly abused in this way for as long as it has been.
The alternative allows for some future populist-authoritarian government to slide into a Trumpian pattern of absolutism, placing itself safely beyond unwelcome investigation. Nothing remotely like this affair should happen again – and any remaining Triples at risk need to be evacuated. No more delays.