Why the government took me to a secret court to hide their own catastrophic mistake - by Lewis Goodall
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Can justice, conducted in secret, ever truly be justice? This is a question with which I have much cause to wrestle, for some 23 months.
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Because nearly two years ago, in August 2023, I received a phone call from a source in Whitehall. They told me that there had been, in their words, a “catastrophic” data breach in the Ministry of Defence. The breach, the source said, consisted of a dataset containing the names and contact details of all those people who had applied for asylum in the UK under the ARAP programme. ARAP was the scheme established by the British government in 2021 to provide a route for asylum to those thousands of people who had worked with the UK armed forces in the two decade long military operation in the country- the UK’s longest war. We later learnt that the dataset comprised over 18,000 people and that, when family members were taken into account, could number around 100,000 people - all of whom could be at risk of Taliban reprisal for working with Western forces.
I knew this was a huge story. I also knew, it was fraught with risk for those involved and I needed to bring in the MoD. Before I knew where I was, I’d been invited to an injunction hearing. I was surprised- I’d made it clear to the MoD I wouldn’t report anything without their cooperation. Nonetheless, in an emergency online session, the government made the case that the risk to life was so great, that they needed to be sure that knowledge of the incident went no further, by force of law. No-one should be allowed to report anything. Remarkably, the judge involved, Justice Robin Knowles, offered to the government more than they’d requested- indeed, a constitutional innovation. He suggested that they ought to have a superinjunction, ie that not only would I not be not be permitted to report the story, but that I could not even report that I had been prevented from reporting the story. To our knowledge, this has never happened before. Superinjunctions are usually the preserve of celebrities and individuals who, for one reason or another, wish to protect their privacy. It is far rarer for organisations or private companies to employ them, or at least for the courts to grant them. It is unknown for governments to use them to protect their own mistakes.
The secret court that silenced the News Agents...until now
Naturally, this made me feel pretty uncomfortable. I expressed my discomfort in court, about the need to balance potential harm with the freedoms of the press. The Judge said that there was no balance to be struck. But my angst was modest; the government at the time made clear that that they saw this injunction as a strictly time-limited affair. They simply wished to put in place the measures they needed to protect those who needed it and remove them from the country, where possible. This seemed reasonable to me.
Months went by, yet we heard nothing. To my surprise, given that by now I was aware the breach had taken place in early 2022 and had been discussed openly in an Afghan Facebook forum, there wasn’t any wider reporting in the media. Eventually, we were summoned to another hearing, where I expected news that the super would be discharged, or at the very least a date where that would happen. To my astonishment, there was no prospect of this- instead the government was changing the rules of the game. It became clear, via the court documents that initially at least, the then Sunak government was not proposing to help very many people as a result of the breach at all- around 200 principals, perhaps up to 1000 in all including family members- 1% of the total number potentially affected and at at least some risk.
Despite the relatively modest efforts to relocate people, the government were not proposing to discharge the injunction. This injunction was no longer about getting people out, but keeping the story in. We entered what felt like an endless kafkaesque nightmare. The government argued that there was a risk the Taliban already had the dataset, but we couldn’t be sure and therefore, it would better for those affected for the story not to be reported and not to be made aware that their data had been compromised, for their own safety. When then, we asked, would the injunction be lifted? When the Taliban found out, a breakglass moment, they argued. When would we know that, we asked? How could we know that? How could we know that they didn’t already know, and were using the set to hurt people, who couldn’t themselves take precautions for their own safety? We’ll know, when we know, was basically the response- assuring us repeatedly that the risk assessment was robust and it would be lethally dangerous if knowledge of the dataset were to be disseminated any further.
This was taking us into constitutionally unprecedented territory. Parliament and public was being denied the right to be aware and scrutinise the government over a matter which was clearly in the public interest. As the judge himself was to concede, democracy had been placed into “cold storage” and a “scrutiny vacuum”. I was incredulous- initially, we were representing ourselves to the court, and against top government lawyers. I put it to them that the justification for this injunction could last indefinitely and a dangerous precedent was being set. The government lawyers were dismissive. With each hearing that went by, I could only feel more and more unease. I had understood the initial justification. But once that slipped away, it felt to me that the motives were darker. Consider the context: the Sunak government at the fag end of its time in office, embattled, under siege. This was a catastrophic data breach and it would be a huge story, embodying their incompetence. It also went to the heart of wider politics. Was it conceivable or credible that politics was not playing a major role in the decision making? It became clear, as part of the court documents, that one of the things which had been discussed at the cabinet subcommittee convened to consider the matter was the pressure on asylum hotels and the fact that it was govt policy to reduce their usage, something which was incompatible with a policy of bringing more people in. This story, two decades and seven governments in the making, went to the heart of domestic politics, in a general election year and no-one had a clue it was happening.
How the government dragged its feet over huge MoD data breach
Those questions became more acute as more time passed. Eventually it did become clear the government was bringing people over, because it was being forced to by the court action. Consider it did not do so before the media became involved. Indeed, though there is some dispute about the figures, at least 6900 Afghans have now been brought to the UK or invited to do so as a direct result of the breach, and the court process, people who would not otherwise have been eligible for relocation. The government estimates that that will cost £800m in resettlement related expenses. But this could well be an underestimate. Documents and submissions seen in court, suggest the total number could in fact run, eventually into the tens of thousands, with one official submission suggesting the cost would be some £7bn- a figure the government now suggests is inaccurate. Either way, what we can say for sure, is that there have been huge costs associated with this breach, a massive covert resettlement programme undertaken by the Ministry of Defence, and it has all taken place in secret, with zero parliamentary scrutiny. This story goes to the heart of two of the big defining issues of the day- the government’s fiscal position and how it deals with asylum seekers, and until noon almost no-one had any idea it was happening.
Bear in mind too- that even we didn’t really know what was happening. These proceedings were all in a secret court, court no 27 in the Royal Courts of Justice (in there, because it’s one of the only court rooms which can be locked.) Even though we media parties were under threat of prison if we revealed anything we heard in court, the truth is, it was a secret court within a secret court. Every time there was an especially knotty question for the government to answer, or a piece of evidence questioned which seemed especially unsatisfactory, the familiar refrain came from the government KC: “that is something I can only discuss in closed, my lord.” Ie, they would go into a “closed” session (as if what we were already in was open) and we media parties, even our KC had to leave and they would address the judge alone. To put it mildly, it was a deeply suboptimal process. Skeletons in cupboards with skeletons inside them. The government repeatedly felt like judge, jury and executioner. They decided. We observed.
Indeed, the only check, on massive executive power in this entire case, was the judge, Martin Chamberlain- in my view a hero of this case who has ruled bravely and done his country a service. One of the younger and certainly brightest high court judges, throughout, he was asking the right questions, clearly deeply cognisant of the burden he was carrying: he was, by his own admission, freezing our democratic process and the press’ right to scrutinise the government. His instincts were right all along, and often he didn't give the govt its way. Indeed, he discharged the injunction at one point, saying it no longer made any sense, only for his judgment to be knocked back by the court of appeal. But I sat there, thinking- what if we hadn’t had him? What if we’d had that first judge, an older, establishment type, who gave the government even more secrecy than they wanted? Could our democratic process be so contingent on one man? He himself conceded that the secrecy and uniqueness of this case, meant the jurisdictional basis was deeply limited. Had it been open, there would have been 100 law professors writing about what had happened and his decisions and what the govt was doing- as it was, it was just him. It left me deeply disturbed. Was this constitutionally significant, because it was setting a precedent? On what legal basis, was this all happening? What else might be hidden because it was inconvenient and difficult in the years ahead? Was I sitting through something when Britain became a different country? Or, more disturbingly, where I realised and saw properly, the country as Britain really was?
So why are you reading about it now? We were much helped by the addition to our legal team of the peerless Jude Bunting KC who has been tireless in his work to help us bring you this story and likewise Pia Sarma from The Times. But in the end, what changed was the government’s own position- jury and executioner again. John Healey, the Defence Secretary commissioned a review by former civil servant Paul Rimmer, to look at the evidential basis on which the super injunction was granted. It revealed that the government had completely rethought everything it had told us about the risks posed by the dataset for the last two years.
Here is the relevant extract from Justide Chamberlain’s final judgement on the nature of that review:
“On the day before this hearing, 25 June 2025, I received a copy of the internal review report, prepared under the supervision of the retired civil servant Paul Rimmer. An OPEN version of that report is annexed to this judgment. I do not, therefore need to summarise it. It is sufficient to say that it includes the conclusion, with respect to individuals whose data is included in the dataset, that acquisition of the dataset by the Taliban is “unlikely to substantially change an individual’s existing exposure given the volume of data already available”. It also includes the conclusions that “it appears unlikely that merely being on the dataset would be grounds for targeting” and it is “therefore also unlikely that family members—immediate or more distant—will be targeted simply because the ‘Principal’ appears in the… dataset”.
These conclusions fundamentally undermine the evidential basis on which I (in my Judgment nos 1 and 2) and the Court of Appeal relied in deciding that the super-injunction should be continued.”
Suddenly, the dataset wasn’t so dangerous after all. You might very well wonder then, what the last 23 months and all of this unprecedented secrecy has been out. You’re not alone- I certainly am.
Where does it leave us? Well there are still things I’m forbidden from reporting to you, to this very moment. The process remains…suboptimal.
Maybe you think the government was right. Maybe you think, it was too much of a risk. That the right to scrutiny and press freedom is a small price to pay for protection, however limited, of preventing knowledge of the breach from spreading. I’ve wrestled with that. But then, in which case, why now? That logic could have held forever? And it could apply again- about something else, just because the government says it does. What does it say, about our democracy, that it should have been the government alone- at the stroke of a pen, not the legislature, not anyone, who made that decision, aided by a single judge, in secret, without any scrutiny, on an online hearing, in the dog days of an August afternoon?
The government has spent a huge amount of money on this case. Defending its right to secrecy over our right to know, cloaked under Afghans right to life, but not to know. I worry about where this leaves our democracy, I worry about what precedent it sets, I worry about how easy it is in our system, for the executive to act without restraint. For all of its problems, this could never have happened in the United States, with its first amendment rights, and constitutionally bound freedom of expression. So many times I sat in court 27 and wondered- what else don’t we know? Might there be other courts like this, in other cases? In my view, there never ever should. This case, is about a question as old as politics itself- who guards the guardians?
But here’s one thing I can. On 1st July- the government quietly wound up the ARAP scheme, without warning. It will no longer accept new applications, including potentially from people who are connected to those on the dataset- they will no longer have a means to come to the UK. Charities slammed the government for "shutting down a lifeline" for Afghans living in fear from the Taliban. It’s almost like they knew something was coming.
We owed them a debt, our politicians told us. It is a debt which seems only to deepen.
Listen to the full episode: The secret court that silenced The News Agents...until now
