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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UK to reconsider blood donation ban for men who have sex with men

Under current rules, men who have had sex with another man in the past twelve months cannot donate blood.

During Women and Equalities questions this morning, Jane Ellison MP slipped in a bombshell: men who have sex with other men may soon be able to donate blood. 

Ellision, who is Undersecretary of State for Public Health, said that Public Health England has carried out a new survey of blood donors which is currently being analysed. Next year, the Advisory Committee on the Safety of Blood Tissues and Organs (SaBTO), which sets blood donation guidelines, will use the evidence to review the current policy. 

She said:

Donor referrel for MSM [men who have sex with men] was changed from lifetime to 12 months referral in 2011. Four years later it is time again to look at this issue. Public Health England has conducted an anonymous survey of donors and I'm pleased that the advisory SaBTO will review this issue in 2016.

The current ban (which also applies to a range of other groups including sex workers) is based on the fact that MSM are at higher risk of contracting HIV, according to every Public Health England survey ever conducted on the disease. Both HIV and Hepatitis C don't show up in blood tests immediately, so the 12 month rule is based on leaving a "window" for the diseases to develop and be testable. The rules are ostensibly based on sexual activity, not on sexual orientation.

However, as Michael Fabricant pointed out in response to Ellison's announcement, in practice, it also looks a lot like discrimination - there is no ban on blood donation from straight people who have had unprotected sex, for example. Fabricant continued that "equality on this issue" is needed, and clinicians themselves feel a change is "long overdue".

Blood donations in the UK have fallen by 40 per cent in the last decade, a fact which may have contributed to the decision to review the current rules.

A Stonewall spokesperson said:

We’re delighted the Department of Health Minister Jane Ellison has announced this review.

We want a donation system that is fair and based on up-to-date medical evidence. Currently gay and bi people cannot give blood if they have had sex in the past 12 months,  regardless of whether they used protection. Yet straight people who may have had unprotected sex can donate. These current rules are clearly unfair and we want to see people asked similar questions - irrespective of their sexual orientation - to accurately assess the risk of infection. Screening all donors by sexual behaviour rather than by sexual orientation would increase blood stocks in times of shortage and create a safer supply by giving a more accurate, non-discriminatory assessment.

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.