Grant Shapps pushed for MoD Afghan superinjunction to remain in place
Two sources present in the MoD at the time say that Shapps wanted to mount an aggressive legal defence in the hope that the data breach affecting would-be Afghan refugees to the UK would remain secret for as long as possible.
One said that Shapps believed he had been successful in fighting legal actions when he ran other government departments by being combative, though others thought the superinjunction was excessive and unlikely to endure.
Shapps was approached for comment directly and through a former aide. The former minister has not so far commented on the affair, though he was the defence secretary during a period when the data breach was covered up – and a secret relocation scheme for about 15,000 Afghans affected was drawn up at a cost of £2bn.
The legal battle, between the MoD and various media groups, ran on so long that the data breach and its consequences did not become public before the general election on 4 July 2024. Though a high court judge wanted to end the superinjunction in May 2024, the MoD successfully appealed to the court of appeal three weeks after the vote.
Labour said responsibility for the affair lay with the previous Conservative government. At the start of prime minister's questions, Keir Starmer said: 'Ministers who served under the party opposite have serious questions to answer about how this was ever allowed to happen.'
Kemi Badenoch, the Conservative leader, did not mention the Afghan scheme at prime minister's questions, instead focusing her questions on the economy. After the exchanges in the chamber, Labour said she had been offered a security briefing about the situation in March but refused.
Badenoch's spokesperson said that as opposition leader she received 'innumerable' offers of security briefings, and had refused this one as it was not marked as urgent. In June the issue was listed as urgent, so she sought a briefing, and was informed about the scheme on Monday, he added.
The Commons defence committee also said it would hold an inquiry. Its chair, Tan Dhesi, said: 'We want to get to the bottom of what has happened on behalf of parliament, which, by the way, has been sidelined for too long on this issue, on behalf of the people.'
Earlier this week, the government acknowledged that 6,900 Afghans would be relocated in the previously secret Afghan Response Route scheme at a cost of £850m. But it also said the scheme would now be halted, meaning that £1.2bn more would not be spent on flying over a further 9,500 Afghans to the UK.
Confirmation of the details was only possible because the high court concluded the superinjuction could no longer be justified. It followed a fresh government assessment that said there was no longer a serious danger to Afghans named on the database.
The leak had originally stemmed from a defence official emailing the sensitive data to the wrong recipients early in 2022. However, news of the breach only reached the MoD in August 2023 after some of the information appeared on a Facebook group.
In one of his last acts, Ben Wallace, Shapps's predecessor, 'personally' took the decision to apply for an ordinary injunction, court papers show. That request was accepted by the high court in an initial hearing.
It was feared that had the Taliban become aware of the database and obtained it, those named would be at risk of reprisals and could end up on a 'kill list' because of a simple mistake made by a British defence official.
However, unexpectedly, the judge, Mr Justice Knowles, also ruled that the existence of his ruling remain secret – so turning the court order into a superinjunction, meaning that it would not be circulated and so be much harder to discover.
Superinjuctions are considered an extreme legal order and were in the past used by celebrities such as the footballers John Terry and Ryan Giggs to try to stop reporting about their private lives. Governments have only used them rarely.
Shapps took over as defence secretary on 31 August 2023 – two days before Knowles issued his ruling. At the time the judge's decision surprised many within the MoD because it had gone further than they sought.
But by the time a second judge, Mr Justice Chamberlain, reviewed the gagging order in November, the MoD's position had changed. The department's lawyer said that while the MoD 'had not sought a superinjunction' in the first place that 'since one had been granted, it should now be continued'.
Court judgments released on Tuesday, as the superinjuction lapsed, show that there was surprise that the unusual legal mechanism proved so effective. In his final ruling, Chamberlain described it as 'one of the many remarkable features of the litigation'.
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