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.)

Photo: Getty
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What's going on in Northern Ireland?

Everything you need to know about why Northern Ireland is heading for an early election - and how it all works. 

Northern Irish voters will elect a new government, just seven months after the last election. Here’s what you need to know.

It all starts with something called the Renewable Heat Incentive (RHI), a scheme designed to encourage businesses to switch to renewable sources of heating, by paying them to do so. But the plan had two flaws. Firstly, there was no upper limit to how much you could receive under the scheme and secondly there was no requirement that the new heaters replace the old.

That led to businesses installing biomass boilers to heat rooms that had previously not been heated, including storage rooms and in some cases, empty sheds.

 The cost of the scheme has now run way over budget, and although the door has been closed to new entrants, existing participants in the scheme will continue collecting money for the next 20 years, with the expected bill for the Northern Irish assembly expected to reach £1bn.  

The row is politically contentious because Arlene Foster, leader of the Democratic Unionist Party, and the First Minister of Northern Ireland, was head of the Department for Enterprise, Trade and Investment (DETI) when the scheme was rolled out, putting her at the heart of the row. Though there is no suggestion that she personally enriched herself or her allies, there are questions about how DETI signed off the scheme without any safeguards and why it took so long for the testimony of whistleblowers to be acted on.

The opposition parties have called for a full inquiry and for Foster to step down while that inquiry takes place, something which she has refused to do. What happened instead is that the Deputy First Minister, Martin McGuinness, resigned his post, he said as a result of frustration with the DUP’s instrangience about the scheme.

Under the rules of the devolved assembly (of which, more below), the executive – the ministers tasked with running the government day-to-day must be compromised of politicians drawn from the parties that finish first and second in the vote, otherwise the administration is dissolved.  McGuinesss’ Sinn Fein finished second and their refusal to continue participating in the executive while Foster remains in place automatically triggers fresh elections.

Northern Ireland uses the single transferable vote (STV) to elect members of the legislative assembly (MLAs). Under STV, multiple MLAs are elected from a single constituency, to more accurately reflect the votes of the people who live there and, crucially, to prevent a repeat of the pattern of devolved rule under first-past-the-post, when prolonged one-party rule by the Unionist and Protestant majority contributed to a sense of political alienation among the Catholic minority.

Elections are contested across 18 seats, with five MPs elected to every seat. To further ensure that no part of the community is unrepresented in the running of the devolved assembly, the executive, too, is put together with a form of proportional representation. Not only does the executive require a majority in the legislature to pass its business, under a system of “mandatory coalition”, posts on the executive are allocated under the D’Hondt system of proportional representation, with posts on the executive allocated according to how well parties do, with the first party getting first pick, and so on until it comes back to the first party until all the posts are filled.

Although the parties which finish third and lower can opt out of taking their seats on the executive and instead oppose the government, if the first and second party don’t participate in the coalition, there is no government.

As it is highly unlikely that the DUP and Sinn Fein will not occupy the first and second places when the election is over, it is equally unlikely that a second election will do anything other than prolong the chaos and disunity at Stormont. 

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