Latest news with #MrJusticeChamberlain
The Guardian
4 days ago
- Politics
- The Guardian
What do the Afghan leaks tell us about state secrecy in Britain? We're entering a dangerous era
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
The Guardian
4 days ago
- Politics
- The Guardian
What do the Afghan leaks tell us about state secrecy in Britain? We're entering a dangerous era
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
Telegraph
6 days ago
- Politics
- Telegraph
‘Am I going bonkers?' Judge attacks government cover-up of Afghan leak
'Am I going bonkers?' Those were the words of a High Court judge as he discovered the full extent of the government cover-up of a secret immigration scheme. Mr Justice Chamberlain had just been told that £6 billion of public spending (now £7 billion) was being hidden with the use of an unprecedented superinjunction. While the cover-up was ostensibly to protect thousands of Afghans who had helped the British Government, as well as their families, ministers also appeared to be trying to protect themselves. John Healey, the Defence Secretary, said in one memo seen by the court that: ' Political and reputational considerations ' had been a key factor informing the Government's response. For the first time in British history, a government had used the courts to prevent anyone – and in particular the media and MPs – from revealing not only what they were up to, but the very existence of the court proceedings. Mr Justice Chamberlain recognised it for what it was: an unparalleled assault on free speech and, as one barrister put it, a way for ministers to 'deliberately mislead the public'. Superinjunctions, more commonly obtained by footballers to shut down reporting of extra-marital affairs, were 'interferences with freedom of expression which take place under the radar', the judge said, and when the Government obtained one it was: 'Likely to give rise to understandable suspicion that the court's processes are being used for the purposes of censorship.' Mr Justice Chamberlain rightly observed that the injunction – granted by another judge in September 2023 – was 'completely shutting down' democratic accountability and decided to lift it, only for the Court of Appeal to overrule him. He said it was 'the first contra mundum superinjunction ever granted'. The Latin phrase for 'against the whole world' explains what the court order meant. Instead of being granted against a named individual, or news organisation, anyone at all who learnt of the leak was banned from talking about it under threat of imprisonment. Grant Shapps had been granted the injunction on his second day as defence secretary, after journalists approached the Ministry of Defence (MoD) to comment on a story about a vast data breach that exposed the identities and addresses of Afghan soldiers seeking asylum in the UK. Rishi Sunak's government decided the public must not find out about a secret plan to offer 24,000 Afghans asylum. It argued that lives would be at risk if the media or Parliament revealed the existence of the leak, or the asylum scheme that followed, because the Taliban would be alerted to the existence of the list and would target those who had helped the US-led coalition before its withdrawal in 2021. Instead of being in place for four months – as originally requested while the MoD organised an airlift of those affected – the Sunak government, and then the Labour government that replaced it in 2024, kept the injunction in place for nearly two years. During that time there was a sinister shift in ministers' reasoning for keeping the public in the dark. The Government's lawyers told Mr Justice Chamberlain that it wanted to put an 'agreed narrative' in place to explain away the arrivals of large numbers of Afghans – in other words, lie to the public. The judge warned that: 'Open justice is a cardinal constitutional principle, from which derogations can be justified only in exceptional circumstances,' and as the case wore on over the course of dozens of hearings, it became clear that he felt that definition was not being met. Tom Forster KC, who was appointed by the judge as a special advocate to challenge the Government in court, told him the lack of scrutiny had put 'the democratic process in the deep freeze'. In February last year, he invited journalists from media organisations that knew about the leak (and who had been threatened with jail if they reported it) to question Natalie Moore, a senior MoD official, at a hearing held behind closed doors. The journalists pointed out that the issue could affect the forthcoming general election and made the case anew for the public to be told the truth. By May last year – before the election – the judge's patience had run out. He ruled that the 'continued stifling of public debate' could no longer be justified and said the injunction was 'closing off public debate on an issue of profound moral and economic significance'. The MoD immediately appealed, hiring one of the country's most eminent barristers, Sir James Eadie KC, at taxpayers' expense. He persuaded the Court of Appeal to overrule Mr Justice Chamberlain and keep the injunction in place. In October, a Cabinet sub-committee chaired by Pat McFadden, the Chancellor of the Duchy of Lancaster – and attended by Angela Rayner, the Deputy Prime Minister, Rachel Reeves, the Chancellor, Mr Healey, the Defence Secretary, Yvette Cooper, the Home Secretary, and Shabana Mahmood, the Lord Chancellor – decided provisionally to expand the asylum scheme. By then, the projected costs had increased to £6 billion, and at another hearing last November, when Mr Justice Chamberlain was told how much public spending was being concealed, he spluttered: 'I am starting to doubt myself – am I going bonkers, because it really is £6 billion?' He added: 'When you are dealing with public expenditure of that magnitude…it's not possible to lose that amount of money down the back of the sofa. 'It's not secret intelligence programmes, it's putting real people up in real accommodation in the UK without revealing it's happening…the basis of the expenditure of all of this money isn't going to be revealed.' 'Provide cover' Ms Moore told the court a statement would be made to Parliament to 'provide cover' for why so many Afghans were arriving in Britain. A government briefing paper shown to the court said that ministers wanted to 'control the narrative' and use a 'robust public comms strategy' to set out 'the scale but not the cause' of the Afghans arriving. The judge said: 'How feasible [is it] to spend that amount of money without the facts coming to light? But we are now seeing how it was feasible: making a statement that provides cover and agree a narrative which is not a true narrative.' He added: 'It is a very, very striking thing.' Mr Healey made a statement to Parliament in December in which mention was made of the resettlement scheme, followed by another statement earlier this month saying the scheme had ended. Last week the Government decided that the threat to Afghan lives was 'less than previously thought', and that the superinjunction might actually have made the situation worse. It paved the way for the injunction to be lifted – and for the media to finally tell the truth to the public – after being gagged for 683 days.
The Independent
6 days ago
- Politics
- The Independent
‘Fundamentally objectionable' that Afghan relocation decisions lacked scrutiny
It was 'fundamentally objectionable' that Government decisions about thousands of lives and billions of pounds were made without scrutiny from Parliament or the public, a judge said in a later overturned decision to lift a superinjunction. A dataset containing the personal information of nearly 19,000 people who applied for the Afghan Relocations and Assistance Policy (Arap) was released 'in error' in February 2022. Between 80,000 and 100,000 people, including family members of the Arap applicants were affected by the breach and could be at risk of harassment, torture or death if the Taliban obtained their data, judges said in June 2024. However an independent review, commissioned by the Government in January 2025, concluded last month that the data loss was 'unlikely to profoundly change the existing risk profile of individuals named'. The Ministry of Defence (MoD) became aware of the breach in August 2023, after details were published on a Facebook group. The Government sought a court order to prevent details of the breach being published and were granted a superinjunction, which also stopped the fact an injunction had been made from being reported. Mr Justice Chamberlain, the judge who oversaw most of the proceedings, gave three rulings behind closed doors – the last of which would have lifted the order after 21 days, but was overturned by the Court of Appeal. In his first decision in November 2023, the judge said that granting the superinjunction to the Government 'is likely to give rise to understandable suspicion that the court's processes are being used for the purposes of censorship,' adding: 'This is corrosive of the public's trust in Government.' Mr Justice Chamberlain said usually the Government would face 'the ordinary mechanisms of accountability which operate in a democracy', from the press, MPs, peers and parliamentary committees. 'The grant of a superinjunction has the effect of completely shutting down these mechanisms of accountability, at least while the injunction is in force,' he said, adding: 'It is axiomatic in our system that decisions subject to public and parliamentary scrutiny are not only more legitimate, but are also likely to be better than ones taken in secret.' In early 2024, the High Court judge continued the superinjunction, finding there was a 'real possibility that it is serving to protect' some of those identified on the dataset. However, he noted that the Government was offering help 'to only a very small proportion of those whose lives have been endangered by the data incident', and that the decisions were being made 'without any opportunity for scrutiny through the media or in Parliament'. The judge ruled in May that the superinjunction should be lifted, finding there was a 'significant possibility that the Taliban already know of the existence of the dataset'. He also found in the – later overturned – decision that if the Taliban had access to the data, the secrecy could be depriving people who would not be relocated by the Government the chance to protect themselves. Mr Justice Chamberlain said: 'The one thing that can be said with confidence is that affected persons would be better off learning of the data breach by notification from the UK Government than from a knock on the door by the Taliban.' The judge also said that there were 'enormous sums' of public money involved in the response. He ruled: 'It is fundamentally objectionable for decisions that affect the lives and safety of thousands of human beings, and involve the commitment of billions of pounds of public money, to be taken in circumstances where they are completely insulated from public debate'.
Yahoo
6 days ago
- Politics
- Yahoo
‘Fundamentally objectionable' that Afghan relocation decisions lacked scrutiny
It was 'fundamentally objectionable' that Government decisions about thousands of lives and billions of pounds were made without scrutiny from Parliament or the public, a judge said in a later overturned decision to lift a superinjunction. A dataset containing the personal information of nearly 19,000 people who applied for the Afghan Relocations and Assistance Policy (Arap) was released 'in error' in February 2022. Between 80,000 and 100,000 people, including family members of the Arap applicants were affected by the breach and could be at risk of harassment, torture or death if the Taliban obtained their data, judges said in June 2024. However an independent review, commissioned by the Government in January 2025, concluded last month that the data loss was 'unlikely to profoundly change the existing risk profile of individuals named'. The Ministry of Defence (MoD) became aware of the breach in August 2023, after details were published on a Facebook group. The Government sought a court order to prevent details of the breach being published and were granted a superinjunction, which also stopped the fact an injunction had been made from being reported. Mr Justice Chamberlain, the judge who oversaw most of the proceedings, gave three rulings behind closed doors – the last of which would have lifted the order after 21 days, but was overturned by the Court of Appeal. In his first decision in November 2023, the judge said that granting the superinjunction to the Government 'is likely to give rise to understandable suspicion that the court's processes are being used for the purposes of censorship,' adding: 'This is corrosive of the public's trust in Government.' Mr Justice Chamberlain said usually the Government would face 'the ordinary mechanisms of accountability which operate in a democracy', from the press, MPs, peers and parliamentary committees. 'The grant of a superinjunction has the effect of completely shutting down these mechanisms of accountability, at least while the injunction is in force,' he said, adding: 'It is axiomatic in our system that decisions subject to public and parliamentary scrutiny are not only more legitimate, but are also likely to be better than ones taken in secret.' In early 2024, the High Court judge continued the superinjunction, finding there was a 'real possibility that it is serving to protect' some of those identified on the dataset. However, he noted that the Government was offering help 'to only a very small proportion of those whose lives have been endangered by the data incident', and that the decisions were being made 'without any opportunity for scrutiny through the media or in Parliament'. The judge ruled in May that the superinjunction should be lifted, finding there was a 'significant possibility that the Taliban already know of the existence of the dataset'. He also found in the – later overturned – decision that if the Taliban had access to the data, the secrecy could be depriving people who would not be relocated by the Government the chance to protect themselves. Mr Justice Chamberlain said: 'The one thing that can be said with confidence is that affected persons would be better off learning of the data breach by notification from the UK Government than from a knock on the door by the Taliban.' The judge also said that there were 'enormous sums' of public money involved in the response. He ruled: 'It is fundamentally objectionable for decisions that affect the lives and safety of thousands of human beings, and involve the commitment of billions of pounds of public money, to be taken in circumstances where they are completely insulated from public debate'.
