
Gagging order to cover up Afghan leak must never be used again
WAKIL KOHSAR/AFP VIA GETTY IMAGES
T hat legal abomination, the superinjunction, is traditionally regarded as the last resort of the desperate celebrity attempting to conceal compromising information. It is a draconian device that not only prohibits the media from reporting a court case — an injunction — but prevents the world from knowing that such an injunction even exists (the 'super' bit). It is intended not so much to stifle legitimate journalistic scrutiny of a court hearing as to smother it. The blanket of secrecy a superinjunction confers means that cases involving serious misconduct by individuals and institutions can go unnoticed by the outside world for months or years, or possibly for ever. Disclosing its very existence can land one in jail.
When the party seeking to conceal their actions for this length of time is the government, and when the parties being kept in the dark are the public and parliament, it risks becoming a tool of authoritarianism. Yet that is exactly what has occurred in a case revealed by this newspaper. One in which a military data breach that placed tens of thousands of Afghans in jeopardy, and resulted in a covert rescue and resettlement programme potentially costing £7 billion, being hidden for two years in what the judge finally lifting the order called a vacuum of scrutiny. It is the first time a British government has used a superinjunction in this way and it must be the last. In observing its terms, in place for so much longer than intended, ministers misled parliament, if largely by omission, concealing from relevant committees and the Commons as a whole a scandal that should have resulted in heads rolling down Whitehall.
It concerned the unauthorised release in February 2022 of a Ministry of Defence database containing the names of tens of thousands of Afghans at risk of retribution from the restored Taliban regime. The list was transmitted by a soldier at a special forces barracks in London to Afghan contacts in Britain as he attempted to verify applications for sanctuary in Britain. The list subsequently found its way to Afghanistan.
• Did the risk ever justify the secrecy in this Kafkaesque calamity?
When one of the individuals it was passed to threatened to publish it on Facebook it became a potential death warrant for many of those named, and possibly their relatives. As a result, the then Conservative government decided to relocate thousands of Afghans, adults and children, to Britain in a covert programme that was later endorsed by the current Labour government. Incredibly, the existence of this operation, involving some 23,000 people, was kept secret even from the discreet Commons intelligence and security committee.
The superinjunction was granted in September 2023, supposedly as a four-month measure to help cloak a rescue. But it would last for almost two years, the MoD continuing to insist that it was necessary to save lives, though there was a possibility that the database had already fallen into the possession of the Taliban. Whatever the reality of this, the superinjunction continued to act as a shield for official incompetence. Due to the continuing secrecy surrounding this fiasco it is not known who, if anyone, was disciplined for the breach.
What is clear is the disquiet of a High Court judge involved in hearings in which The Times and Daily Mail sought to have details of the scandal released. At one point Mr Justice Chamberlain warned that it could be perceived as censorship. Concerns were also raised that the government was using the gagging order to control the narrative surrounding the scandal. Unfortunately, he was overruled by a court of appeal again swayed by MoD warnings of potential disaster. Now, those objections have evaporated, the risks apparently being overstated according to a review. So much for parliamentary and press oversight. In terms of free speech the superinjunction is a weapon of mass destruction. No government should be allowed to employ one again.
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