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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Labour trying to outdo Ukip on border control is the sure path to defeat

Only Diane Abbott has come out fighting for free movement. 

There is no point trying to deny it. Paul Nuttall’s election as Ukip leader is dangerous for Labour. Yes, Nuttall may not be a credible voice for working-class people – he ran as a Tory councillor in 2002 and has said that “the very existence of the NHS stifles competition”. Yes, he may be leader of a party which has (for now) haemorrhaged donors and supporters. But what Nuttall’s election represents is the coming of age for a form of right-wing populism which is pointed directly at Labour’s base. Along with the likes of Ukip's major donor Arron Banks, Nuttall will open up a second front against Labour – focused on blaming migrants for falling wages and crumbling services.

In the face of this danger, and the burning need to create a narrative of its own about the neglect of the communities it represents, Labour’s main response has been confusion. Barely a week has gone by without a major Labour figure repeating the touchstone myths on which Ukip has built its working class roots. Speaking on the Andrew Marr Show, Emily Thornberry openly backed the idea that migration has dragged down wages. “Do I think that at the moment too many people come into this country? Yes I do”, she said.

Another response has been to look for policies that transcend the debate altogether, while giving a nod to the perceived “concerns” that voters harbour about immigration. When Clive Lewis spoke to the Guardian some weeks ago, he also repeated the idea that free movement “hasn’t worked for many of the people in this country, where they’ve been undercut” and coupled this with compulsory trade union membership for those coming to Britain to work – a closed shop for migrant workers.

It is unsurprising that MPs on the right of the party – many of whom had much to say about the benefits of migration during the EU referendum – have retreated into support for immigration controls. This kind of triangulation and retreat – the opposite of the insurgent leftwing populism that Labour needs to win elections – is the hallmark of Labour’s establishment politics. Those who want to stand and fight on the issue should be concerned that, for now, only Diane Abbott has come out fighting for continued free movement.

At the moment, Labour is chasing the narrative on immigration – and that has to stop. The process that is shifting the debate on migration is Brexit, the British franchise of a global nationalist resurgence that is sweeping the far right to power across the western world. Attempt to negotiate a compromise on migration in the face of that wave, or try to claim it as an “opportunity”, and there is simply no limit to how far Labour will be pushed. What is needed is an ideological counter-attack, which tells a different story about why living standards have deteriorated and offers real solutions.

The reason why wages have stagnated and in recent decades is not immigration. Among the very few studies which find that migration has caused a fall in wages, most conclude that the fall is marginal. The Bank of England’s study, cited by Boris Johnson in the heat of the EU referendum campaign, put the average figure at 0.3 per cent for every ten percentage point rise in migrants in a given sector of work. That rises to 1.8 per cent in some areas.

Median earnings fell by 10.4 per cent between 2007 and 2015, and by 2021 are forecast to be lower in real terms than they were in 2008. For many communities, that fall in wages comes on top of the destruction of industry; the defeat of the trade union movement; the fire sale of Britain’s social housing stock; and years of gruelling Tory austerity. Nuttall’s Ukip will argue that economic and social insecurity are the result of uncontrolled immigration. To give an inch to that claim is to abandon reality.

Labour cannot win against Ukip by playing around with new and innovative border controls – it has to put forward a vision for a radically different kind of society. Under Jeremy Corbyn, Labour is closer than it ever has been to the kind of radical social and economic platform that it will need to regain power - £500bn of investment, building a million new homes a year, raising minimum wage and reinstating proper collective bargaining and trade union rights. What it needs now is clarity – a message about who to blame and what to do, which can cut through the dust kicked up by the Brexit vote.