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.)

Getty Images.
Show Hide image

Is anyone prepared to solve the NHS funding crisis?

As long as the political taboo on raising taxes endures, the service will be in financial peril. 

It has long been clear that the NHS is in financial ill-health. But today's figures, conveniently delayed until after the Conservative conference, are still stunningly bad. The service ran a deficit of £930m between April and June (greater than the £820m recorded for the whole of the 2014/15 financial year) and is on course for a shortfall of at least £2bn this year - its worst position for a generation. 

Though often described as having been shielded from austerity, owing to its ring-fenced budget, the NHS is enduring the toughest spending settlement in its history. Since 1950, health spending has grown at an average annual rate of 4 per cent, but over the last parliament it rose by just 0.5 per cent. An ageing population, rising treatment costs and the social care crisis all mean that the NHS has to run merely to stand still. The Tories have pledged to provide £10bn more for the service but this still leaves £20bn of efficiency savings required. 

Speculation is now turning to whether George Osborne will provide an emergency injection of funds in the Autumn Statement on 25 November. But the long-term question is whether anyone is prepared to offer a sustainable solution to the crisis. Health experts argue that only a rise in general taxation (income tax, VAT, national insurance), patient charges or a hypothecated "health tax" will secure the future of a universal, high-quality service. But the political taboo against increasing taxes on all but the richest means no politician has ventured into this territory. Shadow health secretary Heidi Alexander has today called for the government to "find money urgently to get through the coming winter months". But the bigger question is whether, under Jeremy Corbyn, Labour is prepared to go beyond sticking-plaster solutions. 

George Eaton is political editor of the New Statesman.