Did the risk ever justify the secrecy in this Kafkaesque calamity?

Times

5 days ago

Railing against plans for greater secrecy in courts, the human rights barrister spoke out in frustration about the Kafkaesque nature of many closed hearings.
Terrorism defendants were being asked to rebut cases against them even though they were blocked from knowing the evidence on grounds of national security. It was contrary to the principles of fairness at the heart of the British legal system, and wider use of such closed procedures would 'start to erode respect for our courts', he said.
This was in 2012 and Martin Chamberlain, who was protesting against the Conservatives' controversial measures to expand the number of closed courts, was not yet a High Court judge.
His words were nothing short of prescient, though, when it came to the key issues he would grapple with years later while overseeing the Afghan data leak case in a secret courtroom.
This time, the Kafkaesque calamity applied to journalists rather than to terrorism defendants. The press were gagged from asking crucial questions of the Ministry of Defence to understand how seriously its blunder would endanger people's lives.
And, although they could ask some questions through special advocates appointed by the court, they were prevented from knowing the answers. The Times and other media challenging the superinjunction were operating — as the late head of the judiciary, Lord Bingham, had put it about closed-evidence procedures — as if 'taking blind shots at a hidden target'.
A tool that was once used mostly to protect celebrities' privacy had been used to suppress official information. And although concerns about potential misuse of superinjunctions had prompted assurances in the past that they would be applied for only to cover very short periods, that approach had been abandoned under the guise of national security.
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Parliament was also blinded, prevented from examining an issue of great public importance. The result was a lack of scrutiny that shut down the ordinary mechanisms of democracy.
Chamberlain acknowledged this, and emphasised his unease about it. He concluded at first that the superinjunction, a mechanism so secret that not even its existence could be reported, was necessary because of the potential risk to thousands of people and the government's need for time to safeguard them. But he resiled from that view a year ago, concerned that it was stopping those at risk from protecting themselves. He also emphasised the need for public scrutiny of a multibillion-pound evacuation programme.
It is the MoD's continued insistence that a superinjunction was still necessary, an argument that succeeded at the Court of Appeal, that requires careful scrutiny.
The MoD claimed for two years that the security risk to Afghans implicated in the breach justified the unprecedented gagging order, but it was able to abandon its injunction at short notice — a complete U-turn, apparently at the flourish of a pen. It now cites a risk review concluding the Taliban probably already have the information or is unlikely to target the subjects of the leak. But it gives scant explanation of why this so drastically contradicts its long-held position that there was serious risk.
This raises the question: did the risk ever truly justify the secrecy?
That question gives rise in turn to many uncomfortable follow-ups. What exactly prompted this extraordinary change of heart? Where is the intelligence? Did political pressure over asylum hotels, where thousands of Afghan interpreters would surely have had to be housed, play any part in the MoD's speedy abandonment of its risk argument and in the closure of the evacuation scheme?
Most uncomfortable of all: as time went on, is it possible that a legal tool put in place to protect life became a mechanism to spare the government's blushes?
Even now, journalists remain gagged. A new injunction blocks the reporting of key aspects of the database leak. But until all these questions are properly addressed, accountability is severely lacking and trust is at stake.
As Chamberlain himself noted back in 2012, the public have confidence in the courts only when fairness and transparency is at their heart.