Will the Ecuadorian embassy be stormed?

Litigation, and not broken glass, is the more likely consequence.

Last night the foreign minister of Ecuador warned that its London embassy was facing being “stormed” by the United Kingdom government. There had even been a threat in writing, it was claimed. This was a rather dramatic announcement, and it evoked images of SAS soldiers crashing through embassy windows to capture their cornered prey.

The reality seems to be more mundane. The UK government appears to have pointed out that it has the legal power to revoke the embassy status of the premises currently being used by the Ecuadorian embassy. (See Carl Gardner’s excellent post on the applicable law.) As such, this is merely a statement of what the law says. The UK government added that it does not want to use that power and hopes for an eventual compromise. Any threat is at best implicit, but it is hardly a brutal ultimatum.

And what would happen next is even less exciting.  As the UK government will be purporting to be exercising a statutory provision – in this case a power under the Diplomatic and Consular Premises Act 1987 – then any executive action is in principle amenable to the jurisdiction of the High Court for judicial review.  Here it would be Ecuador challenging the UK government in a case that would raise complex points of domestic and international public law.

Accordingly, there will not be breaking glass in Kensington but the prospect of months (or perhaps years) of highly expensive litigation, which will probably reach the Supreme Court. In reality, Ecuador should now be more concerned about lawyers’ bills than any special forces “storming” its embassy.  

All the same, it does appear to be unwise for the UK government to even suggest that the embassy status is at risk. Whilst it is correct that a premises not actually being properly used as an embassy should not have the same legal protection as premises that are being used for such a purpose, it is difficult to see how giving refuge even to someone facing allegations of rape and sexual assault and a valid arrest warrant (and who is also in breach of bail conditions) is by itself sufficient to say the embassy is being so entirely misused that the UK government can invoke the 1987 Act.  And, as a matter of Realpolitik, what the UK government does to embassies in London can also be done to its embassies abroad. 

Of course, this is just one aspect of a mutual exercise in smoke and mirrors by the UK and Ecuadorian governments.  The claim by the Ecuadorian foreign minister may be spin to cover an eventual backing-down, or a signal of a more defiant approach. There may already be a deal between the two countries.   There may be the granting of asylum status, or not.  But there is little new of substance behind the strident assertions of the Ecuadorian foreign minister: the UK government has always had a residual power which it can exercise subject to the High Court, and the Ecuador government has presumably always known this.

International law is important: embassies should be safe and only have their status revoked in exceptional circumstances. But valid European arrest warrants are also part of international law, and they bind the UK if not Ecuador.  The UK is currently in breach of its obligation to extradite Julian Assange to Sweden, just as Assange is in breach of his bail conditions.  In seeking to facilitate the extradition of Assange, the UK government is trying to uphold the law and not break it.

And so due process continues to be evaded, and the rights of the complainants of rape and sexual assault still remain frustrated. However, complainants of rape and sexual assault have rights too.  And the longer this matter drags out, the less chance of any justice in respect of the original allegations.  That is the real scandal.

 

David Allen Green is legal correspondent of the New Statesman

Metropolitan Police Officers not storming the Ecuadorian embassy. Photograph: Getty Images

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The Brexiteers' response to John Major shows their dangerous complacency

Leave's leaders are determined to pretend that there are no risks to their approach.

Christmas is some way off, but Theresa May could be forgiven for feeling like Ebenezer Scrooge. Another Ghost of Prime Ministers Past in the shape of John Major is back in the headlines with a major speech on Brexit.

He struck most of the same notes that Tony Blair did in his speech a fortnight ago. Brexit is a blunder, a "historic mistake" in Major's view. The union between England and Scotland is under threat as is the peace in Northern Ireland. It's not unpatriotic for the defeated side in an electoral contest to continue to hold to those beliefs after a loss. And our present trajectory is a hard Brexit that will leave many of us poorer and wreck the British social model.

But, as with Blair, he rules out any question that the referendum outcome should not be honoured, though, unlike Blair, he has yet to firmly state that pro-Europeans should continue to advocate for a return to the EU if we change our minds. He had a note of warning for the PM: that the Brexit talks need "a little more charm and a lot less cheap rhetoric" and that the expectations she is setting are "unreal and over-optimistic".

On that last point in particular, he makes a point that many politicians make privately but few have aired in public. It may be that we will, as Theresa May says, have the best Brexit. France may in fact pay for it. But what if they don't? What if we get a good deal but immigration doesn't fall? Who'll be blamed for that? Certainly we are less likely to get a good deal while the government passes up pain-free opportunities to secure goodwill from our European partners.

As with Blair, the reaction says more about British politics after Brexit than the speech itself. Jacob Rees-Mogg described it as "a craven and defeated speech of a bitter man". Iain Duncan Smith, too, thinks that it was "strangely bitter".

There is much to worry about as Britain leaves the European Union but the most corrosive and dangerous trend of all is that section of the Leave elite which requires not only that we implement Brexit but that we all pretend that there are no risks, no doubts and that none of us voted to Remain on 23 June. That Blair and Major's speeches - "You voted for it, so we'll do it, but it's a mistake" - are seen as brave and controversial rather than banal and commonplace statements of political practice in a democracy are more worrying than anything that might happen to the value of the pound.

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.