Legal expert Joshua Rozenberg joins us this week to unpack the legal and constitutional ramifications of one of the most troubling intersections of government secrecy, national security, and parliamentary accountability in recent memory. Thousands of Afghans who had worked with British forces were placed at risk of Taliban revenge attacks after a catastrophic government data leak in 2022 exposed their details. In response, ministers secured a “super-injunction” – so secret that even its existence could not be reported – effectively silencing public debate and preventing parliamentary scrutiny for almost two years. The breach, only revealed this week, led to a covert resettlement scheme which has already cost taxpayers millions of pounds.
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Joshua Rozenberg explains the legal context to the granting of the super-injunction and how it persisted under both Conservative and Labour governments. We discuss how parliamentary privilege meant those MPs aware of the breach could have raised the issues in the House of Commons Chamber because they were protected by parliamentary privilege, but any MP who knew about the issue would have had to weigh national security concerns and respect for the courts against their right to free speech.
This case raises profound questions about ministerial accountability to Parliament. In light of the constitutional implications, we discuss whether the chairs of key select committees should in future be confidentially briefed when national security results in court action that blocks normal parliamentary scrutiny processes in order to provide some degree of democratic oversight. We also explore the political and constitutional fallout: How many current and former MPs were subject to the super-injunction? Was the National Audit Office subject to the super-injunction and was it made aware of the costs of the secret Afghan relocation programme? Should there be a new Joint Committee of both Houses or a sub-committee of the overarching Liaison Committee to look at the issues and draw the constitutional threads together? The case was not raised at Prime Ministers Questions so is there a risk that MPs will simply shrug off such a significant breach of accountability? And has this set a precedent for future governments to shield embarrassing or costly errors behind injunctions?
Sticking to the theme of parliamentary privilege we also discuss the sensitive issue of whether unpublished evidence given to the Northern Ireland Affairs Committee in 2009 should be released to the Omagh bombing inquiry. Joshua Rozenberg explains how parliamentary privilege protects witnesses who give evidence to MPs, allowing them to speak freely, often in confidence. But the inquiry, tasked with investigating whether the 1998 atrocity could have been prevented, is seeking access to closed-session testimony from former senior police officer Norman Baxter. We explore how the Privileges Committee must now weigh the need for justice and transparency in deciding whether to release the evidence to the inquiry.
We then turn to other parliamentary controversies, including Labour’s decision to withdraw the whip from welfare rebels. Will this help Keir Starmer to restore his authority or deepen internal rifts within his party? And we discuss the Government’s plan to lower the voting age to 16, a move some hail as democratic renewal while others question whether it will truly engage younger voters.
Joshua Rozenberg KC (hon)
Joshua Rozenberg studied Jurisprudence at Oxford before training to be a solicitor. Despite qualifying, he never became a practising solicitor, opting instead for a training course at the BBC that led eventually to him becoming Britain’s most prominent legal broadcaster and commentator. On BBC Radio 4 he presented Law in Action from its start in 1984 until 1987, and again from 2010 until its final edition in 2024, building a reputation for taking legal matters seriously while making complex issues comprehensible to non-lawyers. In 2016 he was made an honorary Queen’s Counsel, a unique distinction for someone who is a journalist rather than an academic or legal practitioner. Since 2020 he has blogged as A Lawyer Writes, where he covers the legal aspects of political and constitutional affairs as well as scrutinising the work of the judiciary and the wider justice system. He also podcasts for subscribers as A Lawyer Talks.
Joshua Rozenberg
Henry Midgeley et al
Holding Government to Account: Democracy and the National Audit Office (2024), Henry C Midgley, Laurence Ferry, Aileen D Murphie (London: Routledge)
Hansard Society
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Intro: [00:00:00] You are listening to Parliament Matters, a Hansard Society production supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.
Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.
Mark D'Arcy: And I'm Mark D'Arcy. Coming up this week.
Ruth Fox: Thousands of people were put at risk of murder by the Taliban and millions, potentially billions, in taxpayers' money were spent on a secret Afghan relocation scheme.
We talk to legal expert Joshua Rozenberg about why this week's revelations of a data leak of Afghan personnel who worked with British forces poses serious questions for Parliament.
Mark D'Arcy: Should secret evidence to the Northern Ireland committee be handed to the inquiry investigating whether the security services could have stopped one of the worst atrocities of the Troubles, the 1998 Omagh bombing.
Ruth Fox: And withdrawing the party whip from the [00:01:00] government's social security rebels - necessary action to restore the government's authority or deepening the rift on the Labour benches?
Mark D'Arcy: But first, Ruth, let's turn to the astounding story that emerged this week about how a Government data breach leaked details of thousands of people who had applied to come to Britain under the scheme to help Afghans that had worked with British forces and about the extraordinary veil of secrecy that was drawn over it for two years.
Ruth Fox: Yeah, Mark, I mean, what seems to have happened is the leak came when a spreadsheet was accidentally emailed from outside the Government in February, 2022. The fear was that if the Taliban regime now in control of Kabul got hold of the data, those people on that spreadsheet would be at risk of revenge attacks.
But extraordinarily, it seems the Defence Secretary and other senior MOD officials didn't know about the breach for 18 months and when it was discovered, the Government went to court to seek an injunction to keep [00:02:00] news of the data breach from being published. But it seems that the judge in that case went further than the government's lawyers had asked and granted what's known as a super injunction. An injunction that's so powerful that even its very existence can't be disclosed.
Mark D'Arcy: And the injunction remained in place when Labour came into office last year. It effectively prevented not only media reporting, but also parliamentary discussion. So the fact of a major data breach in government, the creation of a new immigration route for Afghans now thought to be at risk because of it, and the multimillion pound costs it created all went un debated at Westminster.
Ruth Fox: This week after a fresh risk assessment, the government's gone public and the high court judge, Mr. Justice Chamberlain, bit of a hero in this case, has finally lifted the super injunction. And the Defence Secretary John Healey, made the statement to MPs.
Mark D'Arcy: So what price parliamentary scrutiny and parliamentary privilege, the special rights that allow MPs and Peers to speak freely without facing prosecution in the courts.[00:03:00]
Well, to explore the intricacies of all this, we turn to legal expert Joshua Rozenberg, and we began by asking him to explain what exactly is a super injunction and can it really bind Parliament.
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