On Tuesday, it was revealed for the first time that the British Government had used a superinjunction to keep a secret from the public.
The term ‘superinjunction’ may be familiar to people who paid attention to the news in the 2010s, thanks to their deployment by several high-profile figures who wanted to stop people reading about their private lives.
It is a court order a step above an injunction, which is used to stop details of the case being published in public.
In a case with a superinjunction, not even the existence of the injunction can be made public.
These orders are powerful enough when used by an individual. The use of one by the government to keep the entire UK in the dark is unprecedented.
Hundreds of thousands of pounds of taxpayers’ money was spent without the public’s knowledge, to bring a large number of individuals to the UK from Afghanistan without anyone being allowed to learn why.
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It all stemmed from an accidental data breach in February 2022, which exposed the personal details of more than 18,000 Afghans who had assisted British forces in their fight against the Taliban.
When the government learned about this breach 18 months after it happened, then-Defence Secretary Ben Wallace requested an injunction in the courts.
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The reason for this, according to court documents, was to ‘preserve the confidentiality of the personal information for as long as possible in order that His Majesty’s Government may do everything it reasonably can to help those who might have been put at further risk by the data compromise’.
But when the time came for the injunction to be placed, Judge Robin Knowles decided to go a step further.
He wrote: ‘I conclude that it is an environment of no publication that best protects lives, although again the matter must and will be kept under constant review.’
This decision was made for eight reasons listed in the judgement:
- ‘The risk in question is to the lives of many individuals and their families, and of torture.’
- The confidentiality of the data was not completely lost, though it had been breached.
- The order would create a period of time where the data compromise is ‘not known or widely known’.
- It would be less likely for the information to fall into the wrong hands during that period.
- The period would provide an opportunity for the government to do ‘everything it reasonably can’ to help those at risk.
- The impact on freedom of expression was ‘justified in the particular and exceptional circumstances of this case’.
- The fact the injunction would probably no longer be needed at some point and be lifted would limit that impact.
- The operation and duration of the injunction would be kept under close review.
This order was so stringent, then-shadow Defence Secretary John Healey did not tell his party leader about the situation when he was briefed before last year’s election.
Instead, Sir Keir Starmer learned about it after he became Prime Minister.
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