Julian Assange in the Ecuadorian embassy: one year older

Britain’s only real option is to doggedly pursue arrest and extradition, however long it takes.

It’s a year since Julian Assange’s extraordinary decision to seek refuge in Ecuador’s London embassy. What should be done about him?

The government has three broad options: it can try to de-recognise Ecuador’s embassy or break off diplomatic relations and close it, so that police can enter the embassy building and arrest him; it can make some sort of deal with Julian Assange – letting him go to Ecuador or giving him some guarantee; or it can let the police continue their stubborn watch for another year or more.

I wrote last year advising ministers against withdrawing the Ecuadorian embassy’s diplomatic status – and my view hasn’t changed. True, the Diplomatic and Consular Premises Act 1987 does indeed give ministers a domestic power to withdraw recognition. Section 1(3) says

In no case is land to be regarded as a State’s diplomatic or consular premises for the purposes of any enactment or rule of law unless it has been so accepted or the Secretary of State has given that State consent under this section in relation to it; and if—

(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

But as I said last year, withdrawing consent under section 1(3)(b) would be legally risky, and might not work. Julian Assange or Ecuador could well succeed in a legal challenge to the decision (on the basis that arresting one man is not the sort of purpose for which Parliament granted the power), in which case Britain would be left looking pretty silly. I doubt the government will want to hand Assange the legal initiative, or risk giving him a legal and public relations coup. And this is without even mentioning the diplomatic consequences worldwide of such a decision.

One day, Assange may become such an irritant that de-recognition becomes a risk worth taking  (actually it’d be legally safer I think to break off diplomatic relations completely and close the embassy). But I think that day’s long off.

The second option is to do some sort of deal with Assange, either unilaterally – no, I really mean bilaterally, don’t I? – or together with Sweden.

The first is surely unreal. Letting him go to Ecuador, or freeing him here with a promise not to extradite him, would breach the UK’s legal obligations to Sweden at a time when other EU member states know Britain will soon want to opt back in to the European Arrest Warrant system (assuming it formally opts out of EU justice measures as whole, as expected). Why should the Commission or other member states accept Britain’s opt-in, or any changes Britain may want to the European Arrest Warrant system, if it’s failing to fulfil its obligations anyway? Bigger things are at stake for Britain than this one case alone. A deal excluding Sweden makes no sense.

So what about an agreement involving Sweden?

There could in theory be an agreement that Assange be questioned where he is, by videolink or by Swedish prosecutors attending on him in Knightsbridge. But why should they agree to that? As I understand Swedish criminal procedure they would normally, in a rape case like this, have their suspect in custody for final questioning at a late stage in their investigation and a decision on formal accusation – after which the trial must by law begin within two weeks. Interviewing Assange other than on her own patch may disadvantage the Swedish prosecutor in ways not obvious to foreign observers – she may not be able to exercise legal powers relating to her questioning, for instance. And what guarantee would she have that following questioning he would come to Sweden for trial? Or that even if he were tried in his absence, he’d surrender himself for imprisonment, if convicted? No: it makes no sense for Sweden to agree to this. And, by the way, even if Assange agreed to serve any prison sentence in Britain – what would stop an American extradition request from here?

That leaves either an agreement involving a guarantee by Sweden that he wouldn’t be extradited onwards to the US; or a guarantee by Britain that it wouldn’t give consent to onward extradition under article 28.4 of the European Arrest Warrant Framework Decision.

Neither the British government nor, I think, Sweden’s, can agree in advance to rule out onward extradition entirely. As far as Britain is concerned, if it surrendered Assange to Sweden and was then asked for its consent to onward extradition, under section 58 of the Extradition Act 2003 the Home Secretary would need to apply a staged series of legal tests before, finally, exercising a discretion whether to consent. The government may have the final say, but it cannot lawfully make an advance decision in the abstract without sight of an actual request, without any consideration of the merits and without respecting the process laid down by Parliament – yet purporting to bind future governments – that Britain would never consent to Assange’s further extradition in any circumstances whatever.

As David Allen Green has written, the position seems, unsurprisingly, similar in Sweden in respect of onward extradition to the US. In neither country can ministers legally purport in advance to take a final, binding decision on a hypothetical request (and in Sweden’s case, before the courts had even looked at it as they’d be required to).

And by the way: the guarantee Assange would need is indeed a wide guarantee ruling out any sort of onward extradition at all. You might I suppose argue that a limited guarantee could work – say, that he won’t be extradited to the US for any offence connected with his work for Wikileaks. But if the US really is trying to get Assange “via Sweden” as is often argued (an argument I’ve never thought made sense, since onward extradition would need British consent - the result being that he’s actually somewhat more protected in Sweden than in Britain) then it can also seek him “via” any other country that doesn’t offer him a guarantee. So any agreement only makes sense for him if it rules out onward extradition anywhere.

Nor does it make sense to limit the guarantee in respect of the kind of offence for which he could be extradited. If, as is sometimes argued, the Swedish rape investigation is some sort of ruse to get him to the US, then an alternative ruse could be dreamt up – an accusation of murder, or drug trafficking, or terrorism.

No: Assange would only be safe, using his own arguments, if a complete guarantee were given against any onward extradition from either Sweden or Britain to anywhere, for anything, ever. Given that neither country knows what offences he (or any other individual for that matter) may have committed or may commit in future, and given that each country must process any future extradition request on its merits, in accordance with its own domestic laws and international obligations to other countries (including the United States) it follows that neither can give the sort of assurance Assange would need. An agreement is impossible.

What, then, are we left with? The cost of the police operation outside the Ecuadorian embassy is reportedly over three million pounds a year. But three million is a relatively trivial sum, weighed against the political cost, for Britain, of backing down.  Twenty years of this might cost a hundred million. Still, in my view, the cost of abandoning the extradition of Julian Assange would be greater. If I were William Hague, I’d mentally insure for more.

As well as damaging relations with EU countries and with the US, backing down would encourage those who have political connections in countries with hostile attitudes to Britain – like Iran, a possible future Taliban-led Afghanistan, or even Argentina – to try to defy British justice as Assange has done. And it would embolden regimes that wanted to play the same sort of political stunt that Ecuador has tried here. The attempt Parliament made, by enacting the Diplomatic and Consular Premises Act 1987, to warn rogue states off abuse of their embassies would have failed. It could lead us back the the days of the “Libyan People’s Bureau”.

Britain’s only real option is to doggedly pursue arrest and extradition, however long it takes. Time is, after all, on its side: Assange or Ecuador must tire of this eventually, and a change of regime in Quito could mean the police are welcomed in. I expect the “legal working party” talks that have been announced are, from the British point of view, simply an exercise in trying to persuade Ecuador to give up.

Assange has apparently talked about holding out for five years. The government should prepare to hold out for much longer than that. Any prison sentence Julian Assange might serve – if convicted of any offence in Sweden – is only delayed, and he only gets older, with every year that goes by. He’s just one year older now.

As for what he should do: he should surrender himself to British and Swedish justice.

Carl Gardner is a barrister, former government lawyer and author of the Head of Legal blog, where this article originally appeared. It is crossposted with his permission

Julian Assange speaking to supporters out of the window of the embassy in December 2012. Photograph: Getty Images
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The decline of the north's sporting powerhouse

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Now, things are different.

On a drive between Sheffield and Barnsley, I spotted a striking painting of the Kes poster. Billy Casper’s two-fingered salute covered the wall of a once-popular pub that is now boarded up.

It is almost 50 years since the late Barry Hines wrote A Kestrel for a Knave, the novel that inspired Ken Loach’s 1969 film, and it seems that the defiant, us-against-the-world, stick-it-to-the-man Yorkshireness he commemorated still resonates here. Almost two-thirds of the people of south Yorkshire voted to leave the EU, flicking two fingers up at what they saw as a London-based establishment, detached from life beyond the capital.

But whatever happened to Billy the unlikely lad, and the myriad other northern characters who were once the stars of stage and screen? Like the pitheads that dominated Casper’s tightly knit neighbourhood, they have disappeared from the landscape. The rot set in during the 1980s, when industries were destroyed and communities collapsed, a point eloquently made in Melvyn Bragg’s excellent radio series The Matter of the North.

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Yet today, we rarely get to hear the voices of Barnsley, Sheffield, Doncaster and Rotherham. And the Yorkshire sporting powerhouse is no more – at least, not as we once knew it.

This should be a matter of national concern. The White Rose county is, after all, the home of the world’s oldest registered football club – Sheffield FC, formed in 1857 – and the first English team to win three successive League titles, Huddersfield Town, in the mid-1920s. Hull City are now Yorkshire’s lone representative in the Premier League.

Howard Wilkinson, the manager of Leeds United when they were crowned champions in 1992, the season before the Premier League was founded, lamented the passing of a less money-obsessed era. “My dad worked at Orgreave,” he said, “the scene of Mrs Thatcher’s greatest hour, bless her. You paid for putting an axe through what is a very strong culture of community and joint responsibility.”

The best-known scene in Loach’s film shows a football match in which Mr Sugden, the PE teacher, played by Brian Glover, comically assumes the role of Bobby Charlton. It was played out on the muddy school fields of Barnsley’s run-down Athersley estate. On a visit to his alma mater a few years ago, David Bradley, who played the scrawny 15-year-old Billy, showed me the goalposts that he had swung from as a reluctant goalkeeper. “You can still see the dint in the crossbar,” he said. When I spoke to him recently, Bradley enthused about his lifelong support for Barnsley FC. “But I’ve not been to the ground over the last season and a half,” he said. “I can’t afford it.”

Bradley is not alone. Many long-standing fans have been priced out. Barnsley is only a Championship side, but for their home encounter with Newcastle last October, their fans had to pay £30 for a ticket.

The English game is rooted in the northern, working-class communities that have borne the brunt of austerity over the past six years. The top leagues – like the EU – are perceived to be out of touch and skewed in favour of the moneyed elites.

Bradley, an ardent Remainer, despaired after the Brexit vote. “They did not know what they were doing. But I can understand why. There’s still a lot of neglect, a lot of deprivation in parts of Barnsley. They feel left behind because they have been left behind.”

It is true that there has been a feel-good factor in Yorkshire following the Rio Olympics; if the county were a country, it would have finished 17th in the international medals table. Yet while millions have been invested in “podium-level athletes”, in the team games that are most relevant to the lives of most Yorkshire folk – football, cricket and rugby league – there is a clear division between sport’s elites and its grass roots. While lucrative TV deals have enriched ruling bodies and top clubs, there has been a large decrease in the number of adults playing any sport in the four years since London staged the Games.

According to figures from Sport England, there are now 67,000 fewer people in Yorkshire involved in sport than there were in 2012. In Doncaster, to take a typical post-industrial White Rose town, there has been a 13 per cent drop in participation – compared with a 0.4 per cent decline nationally.

Attendances at rugby league, the region’s “national sport”, are falling. But cricket, in theory, is thriving, with Yorkshire winning the County Championship in 2014 and 2015. Yet Joe Root, the batsman and poster boy for this renaissance, plays far more games for his country than for his county and was rested from Yorkshire’s 2016 title decider against Middlesex.

“Root’s almost not a Yorkshire player nowadays,” said Stuart Rayner, whose book The War of the White Roses chronicles the club’s fortunes between 1968 and 1986. As a fan back then, I frequently watched Geoffrey Boycott and other local stars at Headingley. My favourite was the England bowler Chris Old, a gritty, defiant, unsung anti-hero in the Billy Casper mould.

When Old made his debut, 13 of the 17-strong Yorkshire squad were registered as working-class professionals. Half a century later, three of the five Yorkshiremen selec­ted for the last Ashes series – Root, Jonny Bairstow and Gary Ballance – were privately educated. “The game of cricket now is played in public schools,” Old told me. “Top players are getting huge amounts of money, but the grass-roots game doesn’t seem to have benefited in any way.”

“In ten years’ time you won’t get a Joe Root,” Rayner said. “If you haven’t seen these top Yorkshire cricketers playing in your backyard and you haven’t got Sky, it will be difficult to get the whole cricket bug. So where is the next generation of Roots going to come from?” Or the next generation of Jessica Ennis-Hills? Three years ago, the Sheffield stadium where she trained and first discovered athletics was closed after cuts to local services.

This article first appeared in the 19 January 2017 issue of the New Statesman, The Trump era