What do the Afghan leaks tell us about state secrecy in Britain? We’re entering a dangerous era
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Version 0 of 1. This superinjunction shows how easy it could be for a government to avoid proper scrutiny when ‘national security’ is invoked Theo Burges is a criminal barrister with a focus on national security laws This week, a British high court judge lifted a superinjunction designed to prevent the reporting of a leak that put the lives of Afghans who cooperated with the UK at risk. The superinjunction was originally expected to be in force from September to December 2023. Instead, it kept details of a national scandal hidden from public scrutiny for years in an extraordinary example of national security providing legal cover for a political crisis. In attempting to remedy the impact of the leak, both Conservative and Labour governments will end up spending £850m. And thousands of Afghans and their families have been brought to the UK via a secret resettlement programme. These significant decisions made by multiple governments have never been publicly scrutinised. So how was this allowed to happen? In discharging the superinjunction on Tuesday, Mr Justice Chamberlain acknowledged that this was an “unprecedented case”. We are far more used to superinjunctions being granted in relation to celebrities than to protect state secrecy. Indeed, this was the first time that we know of that one was granted on the government’s application and represents a step change in the means that it has to prevent the spread of potentially harmful or embarrassing information. This was also the first superinjunction that we know of that was made contra mundum. This meant that it was an offence for anyone to speak publicly about the fact that there had been a data breach, the various and extensive efforts made to mitigate the harm of the breach, or that there were restrictions in place preventing the reporting of said breach. The legal remedies open to the government of today, in the form of superinjunctions, are far more wide reaching than any available to previous governments. The deployment of a superinjunction in relation to matters of national security may well mark a new frontier in the executive’s attempt to maintain state secrecy. However, what has been clear throughout the various applications for extension of the superinjunction is that there was increasing judicial unease. Mr Justice Chamberlain considered in July 2024 that the superinjunction “could no longer be maintained” – due, in part, to the inability for public scrutiny to take place and to the fact that those impacted by the list were denied the opportunity to benefit from public pressure on the government to do more for them. The court of appeal, however, said it would be wrong to lift the order, and so the superinjunction remained in place. This follows a path of the judiciary generally deferring to the state on matters of national security. However, this position can only be sustained when the state provides full and proper disclosure. The original motivation for the superinjunction was to protect vulnerable Afghans’ lives. What is certain is the leak of their details, at the very least, added to the risk they faced and it was right the government took action to protect them. But serious questions need to be asked about how the risk to them was examined throughout the years the superinjunction was in place – and whether withholding information from public scrutiny improved the situation of those involved. It is of note that the reason for the superinjunction no longer being extended was largely due to a Whitehall review conducted by Paul Rimmer, a former deputy chief of defence intelligence. In essence, Rimmer stated that a person’s presence on the leaked list was not a “defining factor” in determining risk to an individual, rather it was an element of the risk posed to Afghans who had assisted the UK. Once this report was provided to the court, keeping the superinjunction in place was simply unsustainable. As a consequence, judicial tolerance for the government’s position ran out. Given the content of the government’s own report, it could be argued that the state had a large part in bringing down its own superinjunction. Indeed, following Chamberlain’s provisional view on 1 July 2025 that the superinjunction should be lifted, the government legal department confirmed that the defence secretary, John Healey, had decided to discontinue the secret Afghan resettlement scheme and applied to discharge the injunction. It’s concerning then that the decision over whether or not this unprecedented superinjunction was necessary was, seemingly, up to the government. The public interest can only be defended by robust judicial analysis based on the state providing the court with a full account of information. The deference granted to the state on matters of national security is predicated on full and proper disclosure. However, in the context of seemingly flexible government opinion, it is questionable whether such deference is warranted if the primary factor in determining such applications can change so readily. This seems particularly true when superinjunctions as powerful as this one are exercised far past their sell-by date. If government opinion is a determining factor in applications such as these, one might reasonably question what happens if the government’s opinion does not change. Could extensive powers, similar to this superinjunction, continue indefinitely, denying the media the opportunity to properly scrutinise important decision-making relating to highly sensitive political matters? This unprecedented case raises the question of whether the state is being fair and above board in what it tells judges and whether there can be sufficient interrogation of the state’s position regarding matters of national security. A question it will only become more urgent that we answer. Theo Burges is a criminal barrister with a focus on national security laws at Red Lion Chambers, London Theo Burges is a criminal barrister with a focus on national security laws at Red Lion Chambers, London |