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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Owen Smith promises to be a "cold-eyed revolutionary" - but tiptoes round Brexit

The Labour leader challenger takes Jeremy Corbyn on at his own anti-austerity game. 

Owen Smith may be challenging Jeremy Corbyn for the Labour leadership but it seems he has learnt a thing or two from his former boss. 

One year on from abstaining from the Tory Welfare Bill - a decision he now says he regrets - Smith attacked the former Chancellor George Osborne’s austerity policies from Orgreave, a former steel plant which was pivotal during the miners’ strike.  

Listing frustrations from library cuts to delayed trains, Smith declared: “Behind all of these frustrations is one cause – austerity.”

Borrowing the rhetoric that served Corbyn so well, he banged the drum about pay, labour rights and fair taxes. 

Indeed, a spokesman from Jeremy for Labour popped up to say as much: “We welcome Owen’s focus on equality of outcome, reindustrialisation and workers' rights - and his support for policies announced in recent months by Jeremy Corbyn and John McDonnell.”

On policy, though, Smith showed a touch of his own. 

His description of the Department for Work and Pensions as “a byword for cruelty and insecurity” resonates with the deep fear many benefit claimants feel for this faceless but all powerful authority. His promise to scrap it will not go unnoticed.

Another promise, to end the public sector pay freeze, is timely given widespread expectations that withdrawing from the EU’s single market will push up prices. 

He also appealed to the unions with a pledge to scrap the “vicious and vindictive” Trade Union Act. 

The policies may be Corbynite, but where Smith stands out is his determination to be specific and practical. He is selling himself as the Corbyn who actually gets things done. Asked about what he would replace zero-hours contracts with, he responded: "Well it could be one [hour]. But it can't be zero."

As he concluded his speech, he promised “revolution” but continued:

“Not some misty eyed romanticism about a revolution to overthrow capitalism.

“But a cold-eyed, practical, socialist revolution, through a radical Labour Government that puts in place the laws and the levers that can genuinely even things up.”

Smith’s speech, though, steered clear of grappling with the big issues of Brexit. He stands in favour of a second referendum on the Brexit deal, which may appease Labour's inner city voters but could frustrate others who voted Leave.

On the free movement of people – widely viewed as a dividing line between Labour’s Corbynite members and the wider voting population - he has been vague. He has previously expressed support for the "progressive case against freedom of movement" and criticised Corbyn for failing to understand patriotism. But this is not the same as drawing up policy. Whether he can come up with strong views on immigration and still appeal to both voter bases will be his biggest challenge of all. 

Owen Smith's 20 policies

1.      A pledge to focus on equality of outcome, not equality of opportunity 
2.      Scrapping the DWP and replacing it with a Ministry for Labour and a Department for Social Security
3.      Introducing modern wages councils for hotel, shop and care workers to strengthen terms and conditions
4.      Banning zero hour contracts
5.      Ending the public sector pay freeze
6.      Extending the right to information and consultation to cover all workplaces with more than 50 employees
7.      Ensuring workers’ representation on remuneration committees
8.      Repealing the Trade Union Act
9.      Increase spending on the NHS by 4 per cent in real-terms in every year of the next parliament
10.  Commit to bringing NHS funding up to the European average within the first term of a Labour Government
11.  Greater spending on schools and libraries
12.  Re-instate the 50p top rate of income tax
13.  Reverse the reductions in Corporation Tax due to take place over the next four years
14.  Reverse cuts to Inheritance Tax announced in the Summer Budget
15.  Reverse cuts to Capital Gains Tax announced in the Summer Budget
16.  Introduce a new wealth Tax on the top 1 per cent earners
17.  A British New Deal unveiling £200bn of investment over five years
18.  A commitment to invest tens of billions in the North of England, and to bring forward High Speed 3
19.  A pledge to build 300,000 homes in every year of the next parliament – 1.5 million over five years
20.  Ending the scandal of fuel poverty by investing in efficient energy