This article is taken from the August-September 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £25.
Super-injunctions are no longer the preserve of footballers and wayward spouses. In mid-July, Westminster was rocked by the revelation that the government had obtained one such order — which prohibits not only the publication of information but the reporting of the fact that the injunction exists at all — to hide the fact that one of its employees had accidentally leaked a database of Afghans who had applied for resettlement in Britain.
Two governments had meanwhile used the cloak of secrecy to put in place a massive (and extremely secret) resettlement programme for Afghans affected by the leaks, at enormous expense, which was not publicly scrutinised. In May 2024, Chamberlain J discharged the order, having expressed his incredulity about the whole business in closed court, but the Court of Appeal (Sir Geoffrey Vos MR, Singh and Warby LJJ) reversed him.
It was only last month that the order was discharged by him after 683 days, after the government determined that there was no evidence those who were named in the leaked database were more likely to be the subject of reprisals from the Taliban than otherwise would have been the case.
There are many puzzling points about the affair. For instance, the government had not originally sought a super-injunction; but Robin Knowles J, who first heard the application, decided to grant one nonetheless, the first super-injunction contra mundum ever granted (that we know of).
In his judgment to discharge the injunction, Chamberlain J referred to a closed witness statement, which apparently states that the information which led to the government’s reassessment of the risks to the affected people was available all along.
This was a sudden and unexpected return for the super-injunction, whose obituary had been written, it had generally been thought, in the early 2010s, when MPs had fun blowing them up in the House of Commons, using parliamentary privilege as a shield against the law.
A committee on the subject chaired by Lord Neuberger MR had then recommended that super-injunctions should be granted only on very rare occasions.
Lawyers advised litigants that getting one was more trouble than it was worth and certain to attract more attention than alternative remedies.
Such was the stigma attached to the super-injunction that in 2011, Andrew Marr voluntarily admitted having got one to avoid the potential embarrassment of its existence becoming public knowledge at a later date, thus defeating the entire point of obtaining it in the first place.
In 2024, it was reported in response to a parliamentary question that there was only one super-injunction in effect. As it happens, it proved to be a very big one.
It seems astonishing that secrecy surrounding the whole affair was preserved when Westminster is constitutionally incapable of keeping any secret, including spreadsheets of names of Afghans. Meanwhile, some on the right have asked why no MP used parliamentary privilege to blow the whistle on the whole affair.
It is true that an MP in the know could have revealed the whole affair in the House of Commons without running afoul of the law. But many seem to forget the degree of political consensus that existed around the evacuation of Afghan collaborators three years ago, as well as the public’s support (at least in abstract) for such efforts.
The political backlash directed against anyone who disclosed the leak and the existence of the injunction would have been spectacular. If anyone on the spreadsheet had come to any harm, the same newspapers expressing outrage about the super-injunction would have crucified the whistleblower as happily as they are now attacking the government.
Not only were the risks to Afghans exaggerated but many of those resettled were probably not eligible
Meanwhile it is by no means clear that the public would have appreciated the disclosure. Indeed, a YouGov poll taken after the injunction was discharged showed that 49 per cent of the British public supports the government’s decision to seek to hush up the matter, against 20 per cent who took the opposite view; and this is at a time when public attitudes towards resettling refugees are toughening. The British public has many good qualities, but consistency does not figure highly amongst them.
Of course, three years on, when the passions have cooled down considerably, the decision to resettle so many of those affected by the leak does not look so good.
Not only were the risks posed by the leak highly exaggerated (the Taliban had plenty of data to use to hunt down collaborators, and they seemed to have generally stuck to their amnesty for opponents), but many of those who were resettled were probably not eligible under existing schemes for Afghans.
If mooted lawsuits against the government for the data breach are going ahead, the public attitude may change very quickly: nothing is as unpopular as ingratitude, particularly when it comes from strangers.
But this is another mess for another day for a government which came into office with a touching, almost religious faith in the goodness of public law.
