This blog is on extended holiday while its owner is writing a book (of which more some time later). But it’s impossible to let Margaret Thatcher’s death pass without adding a few drops to the torrent of comment that has predictably inundated the country’s media, including a river of crocodile tears from a number of the prominent Tories who brutally deposed her when she was no longer electorally useful to them. It’s crude and unseemly to celebrate anyone’s death, but there’s an obligation on any self-respecting commentator, even a humble blogger, to try to tell the truth about the dead as well as the living. ‘Nil nisi bonum‘ is an irresponsible motto when it comes to judging public figures and their records.
For an assessment of her overwhelmingly negative legacy, it would be hard to improve on today’s Guardian editorial, here. It’s required reading: respectful, judicious and balanced.
However, it’s perhaps worth adding one point that’s easily overlooked, perhaps because it’s contentious. Mrs Thatcher’s ferocious assault on the power of organised labour, welcomed by many as a corrective to the excessive power of the unions but carried to unforgivable extremes of destructiveness, made a major contribution to the rapidly widening gap between the richest and the merely average earners in society. It was the theft of an indefensible share of the nation’s income by the top earners and owners of obscene amounts of wealth which steadily ate into the earnings of ordinary people and the below-average poor, forcing them to shoulder a growing burden of private debt if they were to maintain their standard of living, let alone to improve it year by year. The avaricious banks and other financial institutions were happy to go on lending even to the most obviously impecunious borrowers, and it was this (not just in Britain) more than anything else that eventually led to the banking collapse which in turn caused the steep recession that is with us still, six years later, now aggravated by the perverse and economically ignorant policies of Messrs Cameron and Osborne. But the origins go back to Margaret Thatcher and her deliberate destruction of the capacity of organised labour to defend its legitimate interests. It’s as if she consciously set out to demonstrate the kernel of truth in Marx’s perception of capitalism as containing the seeds of its own destruction.
The lady’s other attacks on many of the features of post-war Britain that had helped to bind us together in some degree of solidarity, rather than dividing us into selfish and greedy individualism, are well described in the Guardian editorial. It’s enough here to confirm that almost everything that Margaret Thatcher stood for, this writer finds abhorrent.
It’s only fair to add that on the two occasions when I came face to face with Margaret Thatcher as prime minister during my time in the diplomatic service, once when she came to Lagos for discussions with the Nigerian government, and once in London when I accompanied the then Polish foreign minister on an official visit, she could not have been more charming and friendly. During one-to-one meetings with her, she would ask me for my opinion on some current issue, and — in striking contrast to most other politicians great and small — she then listened carefully and without interrupting to what I had to say. I have it on unimpeachable authority, too, that in her relations with her own staff at No. 10 Downing Street, and again in contrast with some of her predecessors and successors, she was invariably kind, thoughtful, and solicitous of their and their families’ welfare.
Perhaps the main lesson to be learned from this extraordinary woman’s extraordinary career in public office is that we should beware of “conviction politicians”, so unshakably convinced of the rightness of their beliefs that they are impervious to rational advice to consider the possibility that they might be wrong. Some bloodshed and much human misery might have been avoided if it had not been for the blind obedience to their convictions of Margaret Thatcher — and of her later successor in No. 10 who in too many ways adopted her as his role model, Tony Blair.
Brian
David Cameron’s long-awaited speech of 23 January on the EU was certainly a game-changer. It was also a fraudulent and reckless gamble. It was a game-changer because it represented a dramatic shift in Cameron’s position: formerly, he had promised only a referendum to approve or reject such changes he might manage to make in Britain’s relationship with the EU. Yesterday he promised a totally different kind of referendum: whether to stay in the EU, or to leave it. At a stroke this has legitimised the head-banging Europhobes and brought them into the mainstream of British politics. The motives for this U-turn are obvious: to outflank UKIP and reduce its electoral threat to the Conservative party, to appease his back-bench Europhobes and the Europhobic media, and thus to create an illusion of party unity. It is also designed to wrong-foot the Labour party by depicting it as afraid to let the people decide on Britain’s future in the EU.
The speech is fraudulent, because its logical implications are the opposite of the real position. The one section of the speech which rang true was the peroration, powerfully setting out the case for Britain remaining in the EU. Cameron understands as well as anyone why Britain should remain in the EU. He knows that to leave it would be catastrophic for British interests. He plans to emulate Harold Wilson’s tactics in 1975 when Wilson, a much better tactician than Cameron, went through the motions of “renegotiating” the terms of Britain’s membership of the EEC, pronouncing the renegotiation a triumph, and holding a referendum on it which approved Britain’s continued membership by a margin of 2 to 1. The difference between then and now is that Wilson could predict reasonably accurately the referendum result that he wanted, namely to stay in. Cameron cannot possibly know now how a referendum in five years’ time would go. Everything would depend on how the EU evolves between now and then. Radical change is certain, whatever concessions the British government might seek, not because of British sabre-rattling but because of the measures that will be necessary to save the Euro, and the consequent need to work out a new relationship between EU members inside the Eurozone and those, including Britain, outside it. The negotiation of these changes will offer extensive opportunities for reforms of aspects of the EU regarded, not just by Britain but also by some other EU members, as unsatisfactory. It’s quite unnecessary for Cameron to make such a drama of this prospect, which will present itself whatever he does. Moreover, if these changes include transfers of powers from member states, including Britain, to the EU, Britain will have to hold a referendum on them under a UK law of 2011 accepted by all three main political parties.
The fraud is the pretence that Cameron is in favour of Britain leaving the EU unless he secures a series of ill-defined concessions, and that he will campaign for Britain to leave the EU in five years’ time if he has failed to secure those concessions – the unavoidable implication of his EU speech yesterday, which he dares not explicitly acknowledge. The gamble is the promise of an in-or-out referendum in five years’ time, whose result could well be disastrous for Britain. Even in the almost inconceivable event of Cameron retrieving from Europe all the powers and competences that he wants to bring back, it must be obvious that any gain for Britain from such concessions cannot possibly be of such significance as to determine whether or not Britain stays in the EU. That issue is far too momentous to be decided on such inherently marginal grounds. (The gamble is the more reckless because of his apparent disregard for its likely effects on the outcome of the Scottish independence referendum in the autumn of next year, making the disintegration of the UK under Cameron’s premiership just that bit more likely.)
Labour now confronts two challenges, one difficult, the other more straightforward than much of the media seem to recognise. The difficult challenge will be to make the case against the repatriation of the powers which Cameron and the Europhobes want to get back from Europe. Labour needs to convince a sceptical public opinion that subjects such as the environment and the prevention of crime are best handled jointly on a European basis, not by each EU state individually, and certainly not by Britain on its own with the rest of Europe acting together. There may be a case for changes in the criteria for executing the European arrest warrant, but there is no possible case for abolishing it, still less for Britain alone to opt out of it. Even more significantly, Labour has a plain duty to oppose Cameron’s demand for a British opt-out from the controversial working hours directive and other EU regulations designed to protect the basic rights of employees throughout the EU. In particular, Labour, the Lib Dems and the unions should collaborate in opposing a UK opt-out from the regulations that prevent employers sacking their workers without the need to state a justification. Some business leaders in Britain would love to regain the power to hire and fire their workers at will – a licence to sack people on racial, gender or sexual orientation grounds without acknowledging them, or simply on a whim. Labour should expose this Tory ambition as exploitative, unfair and retrograde, supporting those in Europe who may be expected to resist any such opt-out for Britain on grounds of giving one member state an unfair competitive advantage over the rest, as well as on general grounds of workers’ basic rights. Similarly, in seeking to ditch the working hours directive, Cameron shamelessly acts as the spokesman for the most unscrupulous of Britain’s bosses, and Labour should hammer away at exposing him in that role. The directive is an essential protection, not only for workers who might otherwise be forced to work unreasonable hours, but also for the public, whom the directive protects from (for example) flawed medical care by over-worked and exhausted junior hospital doctors.
The more straightforward challenge for Labour is to defend its opposition to an in-or-out referendum, either on the timetable proposed by Cameron, or at any other time determined years in advance. Currently there is no change in Britain’s relationship with Europe so significant as to justify a referendum which would risk having such potentially harmful consequences. To predict that in five years’ time changes will have occurred so significant as to require a referendum is absurd and arrogant. The decision on a referendum can only sensibly be taken in the light of circumstances at the time. Meanwhile, the legal requirement for a referendum if and when there is a proposal to transfer further powers from Britain to Europe is more than enough to protect our interests. Labour can perfectly well stick on this position, while exposing Cameron’s reckless promise as motivated purely by party political considerations and not by any calculation of the national interest.
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Please feel free to comment on this blog post, whether applauding, denouncing or correcting it — but please append your comments at the foot of the original article at http://www.barder.com/3899, not by private email. For example, please don’t send your comments as a reply to the email you may have received notifying you of this new blog post with the full text of it (but probably no illustrations or comments by others), unless what you want to say is purely personal. Thanks. Now read on….
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One interesting and revealing postscript: It is widely forgotten that on 9 December 2011 Mr Cameron returned from a summit meeting in Brussels boasting that he had bravely defended British interests by vetoing an EU treaty, on the grounds that the rest of the EU had refused to satisfy the conditions he had laid down for refraining from exercising his veto. These conditions amounted to a series of demands which were mostly unconnected with the subject matter of the proposed treaty. In fact, our prime minister had not vetoed a treaty at all: there was no draft treaty in existence for him to veto. All he had done was to try to prevent the rest of the EU from using the Commission and other EU organs and facilities for the negotiation of a new treaty designed to impose more discipline on the Eurozone. In practice this shabby attempt was easily circumvented, and the only effect of Cameron’s attempted blackmail was to ensure that Britain alone was virtually excluded from having any input into the negotiations leading up to the new treaty. (The sad and shameful tale is related in more detail in an earlier post on this blog, here: it’s well worth reading.) If that episode is a reliable indicator of Mr Cameron’s negotiating skills, and of the integrity of the account of his actions that he offers the British people, Labour should have no great difficulty in exposing the fraud, recklessness and ineptitude of the new Tory strategy for Europe, and the reactionary character of its real aims.
Brian
The Financial Times unaccountably published, prominently, an article on 8 December 2012 provocatively headed: The West must intervene to finish the Assad régime. Its author was Ambassador James Francis Dobbins, Jr., according to Wikipedia an American diplomat and former United States Ambassador to the European Union (1991–93) and Assistant Secretary of State for European Affairs (from 2001, the first year of the presidency of George W. Bush). He has served as US envoy to Kosovo, Bosnia, Haiti, and Somalia, and is head of international and security policy for the RAND corporation.
Ambassador Dobbins advanced several predictable and familiar arguments for western military action against President Assad’s admittedly odious régime. He acknowledged that such intervention would be most unlikely to be authorised by the UN, as required by the Charter, because of Russian and Chinese objections (he might have added, but didn’t, that those objections would be reinforced by their experience of the way NATO abused and exploited the limited UN authority granted, with Russian and Chinese acquiescence, for intervention against Gaddafi in Libya).
Mr Dobbins argued, however, that western military intervention in Syria could be legitimate under international law, even without the authority of the UN Security Council, on the basis that: a. western powers could recognise one of the insurgent factions in Syria as its government and then respond to its appeal for help under its right to self-defence, as recognised by the Charter; or b. they could cite the precedent of Kosovo (where NATO bombed Yugoslavia for months without UN authority); and, apparently in the same breath, c. they could ”assert what is now an internationally recognised responsibility to protect a population from abuse by its own government.” (The ambassador wisely refrained from capitalising the term of art, Responsibility to Protect, or R2P, which has a very specific and well defined meaning as a new principle of international law.) The Dobbins article also d. made a glancing reference to Libya.
These proposed arguments for the alleged legitimacy of military intervention in Syria without UN authority were all breathtakingly phoney, as should have been obvious to anyone with the most superficial knowledge of international law in general and the Charter of the United Nations in particular. I submitted the following letter to the FT:
Sir, As a former US envoy to Kosovo, Ambassador Dobbins (The West must intervene to finish the Assad régime, 8 December) must know that –
- it was US-Russian-Finnish quiet diplomacy, not the NATO bombing of Yugoslavia, that ended Serbian control of Kosovo; that the NATO bombing, never authorised by the UN Security Council, contravened the Charter and was technically a war crime, whatever its motives, and can’t therefore be quoted as a precedent to legitimise western intervention in Syria without UN authority;
- and that the “Responsibility to Protect” (R2P) put forward by Ambassador Dobbins as an alternative source of legitimacy for a Syrian intervention itself requires action in the Security Council under the agreement at the 2005 UN World Summit which approved the R2P principles, some of which don’t apply to the Syrian situation anyway.
- The suggestion that we should legitimise intervention by “recognising” one of the Syrian opposition factions as the government and then responding to its appeal for help under the right to self-defence would entail twisting the criteria for recognition and provide a precedent for similarly slippery behaviour by others anywhere in the world (anyway Britain recognises countries, not governments).**
- Finally, Libya is not a helpful precedent, since the bombing had UN authority (however much NATO then abused it), which the Ambassador rightly recognises would not be available for a Syrian intervention; anyway the Libyan intervention has hardly proved to have the outcome we sought.
The unavoidable conclusion must be that armed intervention in Syria, necessarily without Security Council authority, would be illegal in international law and thus a war crime. The closest parallel would be Iraq, the one recent intervention that Ambassador Dobbins understandably doesn’t mention.
Brian Barder (HM Diplomatic Service, 1965-1994)
London, UK
8 December 2012
The FT subsequently published two letters rebutting different aspects of Ambassador Dobbins’s case, but mine was not one of them. I think, though, that the gaping holes in all his arguments for claiming international legality for yet another western military intervention in the middle east, after the disastrous failures of all such interventions in living memory (and Suez is within mine) deserve to be placed on the record. Hence this post.
When an experienced senior diplomat, occupying a prestigious post in a distinguished American think-tank, can publicly advance such a shabby case for a course of action in Syria so likely to be doomed to failure and ignominy, we should cease to wonder how the catastrophic and criminal enterprise of the invasion and occupation of Iraq came about, even though (as we now know) the experts in international law in the Foreign & Commonwealth Office warned in advance that it would contravene the UN Charter and amount to the crime of aggression.
**A very senior retired British ambassador privately commented to me on the suggestion that the western powers could “recognise” a Syrian opposition faction and then respond to its appeal for help under its “right to self-defence”:
An argument used mutatis mutandis by scoundrels regularly. eg the Soviet Union in Czechoslovakia in 1968.
“Scoundrels” looks about right.
Brian
It’s striking but sadly predictable the way almost every media commentator on the affair of the ‘prankster’ Australian DJs and the tragically dead nurse have missed the main point: namely that a hospital, any hospital, housing any patient, should be the very last target of choice for a hoax telephone call (‘hoax’ being a more accurate description than ‘prank’, with its implication of harmlessness). The DJs can’t reasonably be expected to have known that their hoax would end in tragedy, and their recent television interviews, tearful and obviously wracked with grief and remorse, evoke almost as much sympathy as the family of the deceased. The vitriolic reactions of sections of the UK press and the Twitterati do our country no credit at all, and the demand that “heads must roll” is sickeningly out of place. The DJs should be left alone to rebuild their lives — and their careers in radio.
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Each time this website and blog have celebrated the long overdue abolition, principally by a bravely liberal Ken Clarke, of IPPs (the truly vicious system of Indeterminate Sentences, imposed for less than the most serious offences, a toxic blend of preventive detention and undeserved life sentence), the celebration has turned out to be premature. The Act of Parliament providing for abolition hit the statute book on May Day, 2012, and we celebrated. The it transpired that the abolition clause of the Act didn’t come into force until a date to be set by the Justice Secretary. At last the date for that was set: 3 December, 2012. That day duly came, and we celebrated. Hang on, wrote a contributor to the blog: some judge has just handed down two more IPPs, on 5 December! Hasn’t anyone told him? Now it turns out that the 3 December cut-off date applies not to the date of sentencing but to the date of the offence! So there are still probably hundreds — perhaps thousands? — of people charged with a variety of offences allegedly committed before 3 December 2012, for example in connection with the widespread riots in England in August 2011, who have not yet been sentenced (although the reason for such delay is incomprehensible): so all of these, if convicted of offences for which IPPs were once prescribed by law, are liable to be given Indeterminate Sentences, not just now, a good eight months after IPPs were abolished, but way into the indefinite future. Clearly this is no time to celebrate after all. A heavy responsibility consequently rests on the Justice Secretary, now Chris Grayling, to clean up the nightmarish way in which existing IPP prisoners, all 6,000 plus of them, are currently grossly mismanaged and almost never approved for release. [PS: But now see up-date, below.]
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A warm welcome to this blog to any readers who have come here via that distinguished journal Password (only you will know what I’m talking about). If you, or anyone else, would care to use the ‘Subscribe’ facility somewhere up near the top left of your screen, you’ll get an automatic notification by email every time there’s a new post here (contrary to appearances it’s free, and you can subscribe under a nom de plume if you wish, so long as you provide a genuine email address — which won’t be made public). Those who have already subscribed can easily unsubscribe, too, if they wish, although I hope you won’t. It doesn’t take long to press Delete if the notification of a new post doesn’t look interesting. Meanwhile Zag (retired) sends his best wishes for a happy, er, holiday season.
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I have commented in another place (actually in the aforementioned Password) on the wretched, worn-out, threadbare cliché “fall on one’s sword”, meaning “resign” and adding absolutely nothing to that straightforward word. Now those misguided hysterics clamouring for the wrecking of the careers of the Australian hoax-calling DJs are demanding that they “walk the plank”. It’s just about understandable that there should be so many euphemisms for the d-word (“pass away”, “gone to meet his Maker”, “lost”, and so on), but who nowadays has a mental picture of anyone falling on his sword (not an easy thing to set up, one might think) or even walking the plank? Perhaps the series of films depicting Pirates of the Caribbean is to blame for the latter, and even, who knows?, for the former.
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One of the many tragic victims of the coalition’s illiterate “austerity” programme and its primary attack on the living standards of the poorest and most vulnerable in society seems likely to be the Beveridge principle of universality of benefits, which has hitherto been central to the whole idea of the welfare state. Beveridge stressed that if all those in society who could afford to do so paid their premiums in taxes and National Insurance contributions to a virtual state insurance scheme which spread the risks of unemployment, poverty, homelessness, ill-health and incapacity, across the entire population, those suffering any of those insured risks would be entitled as of right to the appropriate benefit, just as anyone making a valid insurance claim is entitled to have it settled. Thus we may all go to our GPs for our flu jabs or to be referred to a specialist, free of charge, whether we are paupers or millionaires; no-one suggests that those who can afford private medical care have a duty not to use the NHS. But the government’s increasing stress on need instead of entitlement as the criterion for benefits, and its callous claim to the right to reduce benefits in real terms, year by year, as well as capping some of them and abolishing others, corrupts the Beveridge principle of universality and so undermines the very foundations of the welfare state to which all major parties once subscribed — until Thatcher and Blair came along. The very idea that Labour might contemplate actually voting in favour of this outrageous programme of indiscriminate cuts to benefits (for which the vast majority of recipients have paid with their taxes and NI contributions), and demonisation of the poor, is beyond parody. Where is the dilemma?
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It’s not easy to explain the almost universal addiction to the two current television thriller series Homeland and The Killing. Both are almost incomprehensibly tortuous — even my wife has to turn to the online reviews next day to find out what has happened, and then to explain them to me — and both seem to take place almost entirely in the dark, with only torch beams waving up and down to show that the television set hasn’t broken down. Both involve wild improbabilities: in Homeland, the hero (or anti-hero) walks around the streets of Washington DC and other cities unrecognised and unapproached, without any kind of personal security, despite being a Congressman, a candidate for the Vice-Presidency and a supposed “national hero” widely celebrated on national television. Yet the programme is the very definition of compulsive viewing. Partly it’s because of the superb acting by everyone involved (in the case of Homeland, including by the large British contingent, all with apparently impeccable American accents); but perhaps more strikingly it’s because of the moral complexity and sophistication of both series, with deeply flawed principal characters, mixed motives everywhere, and no automatic distinction between right and wrong behaviour or between goodies and baddies. The repeated statements of motivation and almost of justification of terrorism in Homeland, with its savage denunciation of the murder of innocent civilians by bombing from an American drone, are truly astonishing for a popular American television programme. Full marks to both series for telling it pretty much the way it is in real life.
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Update and correction: I have just been authoritatively informed that the 3 December cut-off date for IPPs applies not to the date of the offence, as I was previously led to believe, but to the date of the conviction — which would normally, I suppose, be very near to the date of sentencing. If that’s correct, we should indeed be close to the last IPP to be handed down. A very tentative but heart-felt ‘hurrah!’, if so.
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Please feel free to comment on this blog post, whether applauding, denouncing or correcting it — but please append your comments at the foot of the original article at http://www.barder.com/3871, not by private email. For example, please don’t send your comments as a reply to the email you may have received notifying you of a new blog post with the full text of it (but probably no illustrations or comments by others), unless what you want to say is purely personal. Thanks.
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Brian
In a lively discussion on the LabourList website of whether Alex Salmond, Scotland’s First Minister, lied when he allegedly told Andrew Neil that the SNP government had obtained legal advice that an independent Scotland would not have to apply to join, or re-join, the EU, I have drawn attention in a comment to an interesting but neglected statement of the UK government’s view:
I carry no torch for Alex Salmond (although I regard him as the most formidable political leader in the UK) and I’m vehemently opposed to independence for Scotland. But as I understand it, his defence against the charge of having lied about having obtained legal advice on the question of an independent Scotland’s position vis-à-vis the EU is that his and other SNP statements on the subject, arguing that Scotland’s existing status of EU membership (as part of the UK) would continue after independence so that there would be no need to apply as a candidate for membership, had all been seen and approved by the Scottish government’s legal advisers. This can, I suppose, just about be squared with Salmond’s reply to Andrew Neil (“We have, yes, in terms of the debate”). I conclude, somewhat reluctantly, that the charge of ‘lying’ can’t be made to stick, although the charge of having been deliberately misleading probably does.
But in all the excitement over what Salmond did or didn’t say and whether he lied, an important statement by the UK government on the question of Scotland and the EU seems to have been widely missed. The only reasonably full report of it that I can find was in the Guardian of 1 November, at http://www.guardian.co.uk/politics/2012/nov/01/alex-salmond-scotland-eu-membership
The relevant passage reads:
“In a brief statement issued on Thursday, Westminster hinted strongly that its legal advice directly contradicted the claim by Scotland’s first minister, Alex Salmond, that, if Scotland voted for independence, it and the rest of the UK would need to reapply to join the EU as newly formed states.
“The UK government statement stressed that, unlike the Scottish government, it had obtained formal advice from its law officers and that Scotland would have to negotiate the terms of its EU membership with the UK and all other 26 member states.
It said: ‘This government has confirmed it does hold legal advice on this issue. Based on the overwhelming weight of international precedent, it is the government’s view that the remainder of the UK would continue to exercise the UK’s existing international rights and obligations and Scotland would form a new state.
‘The most likely scenario is that the rest of the UK would be recognised as the continuing state and an independent Scotland would have to apply to join the EU as a new state, involving negotiation with the rest of the UK and other member states, the outcome of which cannot be predicted.’
“Referring to statements by European commission president, José Manuel Barroso, and his deputy, Viviane Reding, that a newly independent country would be seen as a new applicant, it added: ‘Recent pronouncements from the commission support that view.’ “
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Please feel free to comment on this blog post, whether applauding, denouncing or correcting it — but please append your comments at the foot of the original article at http://www.barder.com/3819, not by private email. For example please don’t send your comments as a reply to the email you may have received notifying you of a new blog post with the full text of it (but probably no illustrations or comments by others), unless what you want to say is purely personal. Thanks.
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Brian
It’s surprising, and disturbing, that the UK Prime Minister, David Cameron, and the Scottish First Minister, Alex Salmond, should have signed an agreement on the Scottish independence referendum to be held in autumn 2014 in which there will be only one question – probably on the lines of “Do you wish Scotland to remain in the United Kingdom, yes or no?” – and under which children of 16 and 17 will be eligible to vote.
The first and minor surprise is that Cameron should have agreed to give the vote at the referendum to children. Common sense suggests that teenagers are much likelier to vote for the radical option of independence than most older voters; so he has given the SNP and the independistas a head start, while apparently getting nothing in return. He has also set a most dangerous precedent for other future elections, not just in Scotland. If votes for children are OK in a referendum to settle the future of the United Kingdom, why should they not be OK in future UK general elections, local elections, referendums on Britain’s future in the EU, and the rest? If children of 16 are to be trusted to vote, why not 15- or 14-year-olds? This is the worst kind of pandering to the sentimental idealisation of the young.
The second and much more worrying surprise is that either Cameron or Salmond should have agreed to a single-question referendum. Until recently, Salmond was speculating about the possibility of a third question, implying three options: independence, the status quo, or “devo max” (i.e. further maximum devolution of powers to Scotland, amounting to full internal self-government). The evidence of recent polls is that a clear majority of Scots would prefer devo max to either independence or the status quo, and it looked at one time as if Salmond and the SNP were preparing if necessary to accept a referendum vote for devo max as the next best thing to independence and a possible stepping stone to it. Conversely, a more cautious British leader than Cameron would surely have taken the view that Scots faced with a straight choice between independence and the status quo, when most of them apparently want devo max, might well feel themselves forced to vote for independence, and that an offer of devo max (as a further alternative to the status quo option) would be the best way to minimise the number of votes for independence.
So each side had a good though different tactical reason for wanting a three-way choice, with a reasonable expectation that devo max would win. The SNP would then have been able to welcome this as at least a partial victory, leaving the door open for a vote for independence later; and those wishing to keep Scotland in the Union would similarly have been able to welcome a vote for devo max, in the hope that the grant of substantial further devolution to Scotland would blunt the edge of the desire for full independence, and provide the basis for a durable settlement between Scotland and the rest of the UK. Thus it was difficult … [More >>>]
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Please feel free to comment on this blog post, whether applauding, denouncing or correcting it — but please append your comments at the foot of the original article at http://www.barder.com/3804, not by private email. For example please don’t send your comments in reply to the email you may have received notifying you of a new blog post with the full text (but probably no illustrations or comments by others), unless what you want to say is purely personal. Thanks, and now read on.
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Thus it’s difficult to understand why Cameron should have insisted on a single ‘yes or no’ answer to the question whether Scotland should remain in the United Kingdom. It is equally difficult to understand why Alex Salmond should have dropped the idea of a compromise option of devo max, given that this seems to be what most Scots want. The agreement of 15 October paradoxically entails a grave risk for each side. The risk for Cameron is that a majority of Scots, deprived of the option of voting for devo max as they would like to do, will vote instead for independence, frustrated and exasperated at being denied the option of voting for what they actually want. The risk for Salmond and the SNP is that by the time of the referendum in the autumn of 2014, there will still be no majority appetite for independence, enthusiasm for which has been ebbing in recent months, and that accordingly there will be a clear majority for the only alternative on offer, namely the status quo, which would inevitably (and quite reasonably) be interpreted as a decisive rejection of independence.
Part of the answer may lie in internal Conservative party politics. A substantial number of Tories both in Parliament and in the country, already sceptical about the limited devolution to Scotland, Wales and Northern Ireland so far granted, are said to be strongly opposed to the devolution of yet more powers to Scotland. A more farsighted objection in some minds is that devo max, amounting to full internal self-government for Scotland, would prompt irresistible demands by England for the same status, remedying the absurd and unsustainable situation in which England, alone of the four UK nations, currently enjoys no devolution at all. With Wales and Northern Ireland, both already extensively devolved, likely to follow suit, full internal self-government for each of the four UK nations would make the United Kingdom a full-blown federation, which is clearly the logical (and highly desirable) culmination of the devolution process. No wonder that Westminster politicians, flattering themselves with the long exploded myth of parliamentary sovereignty in which the powers of the government and legislature at London are represented as both unlimited and constitutionally incapable of being limited, view with horror the idea that the vast majority of the subjects with which they deal from day to day would be transferred to the parliaments and governments of the four nations, leaving them with responsibility for little more than foreign affairs, defence, and any other matters which are necessarily dealt with on an all-UK basis.
However, it appears that David Cameron at least is in fact prepared to contemplate further devolution to Scotland, provided that the Scots vote no to independence in 2014:
[After concluding the agreement with Salmond] Cameron said that if people in Scotland wanted further devolution, they should reject independence.
“One thing is clear: that if independence goes ahead, it’s the end of devolution. All those who want to see not only the status quo but further devolution from the United Kingdom to Scotland must vote to stay within the United Kingdom.”
Cameron said that if Scotland voted to stay in the UK, further devolution would be possible.
[http://www.guardian.co.uk/politics/blog/2012/oct/15/salmond-cameron-scottish-independence-referendum-live; my emphasis]
Cameron’s warning to the Scots that if they vote for independence, “it’s the end of devolution” is a meaningless threat, indeed a statement of the painfully obvious. What is more significant is his reported promise that if Scotland votes to stay in the UK, “further devolution would be possible”. This however seems to imply that the London government will be prepared to discuss what kind of further devolution will be available to Scotland only after the Scots have rejected independence in a referendum that’s still two years off. Such a sequence will surely be untenable. To ask the Scots to vote against independence and in favour of an alternative involving an undefined measure of further devolution is to ask them to buy a pig in a poke. Salmond and the SNP will certainly be forced to spell out in much greater detail than they have done so far what exactly would be involved in independence. Already Salmond has been caught out equivocating, almost to the point of mendacity, about whether an independent Scotland would automatically remain part of the EU, or whether she would have to join the queue of applicants as a new candidate for membership. Similar questions will arise over Scottish membership of the UN and many other international bodies. There will be countless other thorny matters in connection with possible independence demanding answers between now and the referendum. But by the same token there will be questions to be answered about what exactly is meant by the ‘further devolution’ dangled by Cameron in front of Scottish voters as a reward for rejecting independence. It is time for some hard work to be done by both sides on the answers to all these questions, in plenty of time for the referendum. Scottish voters are entitled to those answers before they vote, not afterwards when it will be too late.
It seems therefore that both Cameron and Salmond have each agreed on a huge gamble: Cameron betting that the Scots, deprived of the option of devo max which most of them actually want, but reassured by a vague promise of ‘further devolution’ if they vote against independence, will vote accordingly; Salmond gambling that without a specific offer of devo max, plainly defined, a majority will go for independence as the nearest thing to it. Both sides have a lot to lose if their gambles fail. If Cameron has guessed wrong, Scotland will vote for independence and the United Kingdom will disintegrate; Cameron will then go down in history as the prime minister who presided over the dissolution of his country. Conversely, if Salmond has guessed wrong, Scotland will say a flat No to independence, with little prospect of another bite at the independence cherry for a generation, and not even a bankable guarantee of further significant devolution. Not only are both men gamblers: they are reckless and irresponsible gamblers who have lost sight of the best interests of both Scotland and the United Kingdom, which plainly lie in a commitment to the offer of further full devolution and all that will follow from it.
The best hope now must be that Labour and the Lib Dems will refuse to follow Cameron down his reckless path, and instead will work together, ideally in consultation with the SNP and the other nationalist parties, on elaborating a programme of full devolution, amounting to full internal self-government, for Scotland if the Scots vote No to independence in 2014. This programme would form a commitment by a future Labour government, with or without Lib Dems support, spelled out in as much detail as possible well before the Scottish referendum. If it remains the case that when they come to vote in 2014 the majority of Scots will still prefer devo max to either independence or the status quo, a detailed promise by Labour and the Lib Dems of full devolution in the event of a rejection of independence would effectively give the Scottish voters what Cameron and Salmond have conspired to withhold from them: the opportunity to vote in the referendum for what most Scots want. Do the Labour and Lib Dem leaderships have the foresight and guts to do what needs to be done, not just for Scotland but for the future of Britain? Don’t bet on it.
Brian
Earlier this month (October 2012) J and I enjoyed a Viking river cruise on the Elbe from Berlin to Prague. In response to several requests, J has written an account of the trip, including some of the personal and historical events of which we were reminded on our visits to some of the towns and cities along the way — not only Berlin and Prague, but also Wittenberg, Torgau, Meissen, and Dresden in the former East Germany, and Litomerice in the Czech Republic.
J’s article is at http://www.barder.com/a-cruise-up-the-elbe-october-2012. Do spare a few minutes to read it if you have any interest in this part of our old war-torn continent. (If you haven’t, don’t bother!) The article ends with a link to the web album of photographs taken during the cruise — we used to call them ‘snaps’, less grandly and more appropriately in my case — which, having read the article first, you’re also welcome to browse through.
Please append any comments, corrections or other reactions as Comments to this blog post, not to J’s article.
Brian
Following an extensive exchange of emails, comments on blog posts, articles in the press and other expressions of personal (and sometimes vehement) views about the Assange affair, I have put on my website a compendium of some of the more interesting and provocative thoughts about the legal and international issues which arise out of it. The compendium, here, is mostly anonymous (except that ‘BB’ is pretty easily identifiable), and of course makes no claim to being comprehensive. It’s just a roundup of some of the views that I have come across and found stimulating. It also reproduces a few key texts.
I doubt if the compendium will warrant careful (or even casual) reading by very many visitors to this website. But those who by background or hobby take a special interest in these rather arcane matters might like to glance through it, at leisure, in case anything in it strikes a spark — or leaps out as spectacularly wrong. Either way, comments of all kinds on specific points in the compendium will be very welcome. Please contribute any such comments here, at the foot of this blog post: there is no provision for comments on the compendium itself.
The compendium can be accessed by clicking –
http://www.barder.com/politics/julian-assange-ecuador-and-the-law-a-compendium
Why not have a look?
Brian
Today’s Guardian (20 Aug 2012) publishes a letter from me dismissing one suggested solution for Mr Assange’s future and proposing another:
Letters: Diplomatic dilemmas and Julian Assange
Your editorial (17 August) states categorically that “an embassy car is not diplomatically protected”, although I don’t know how you square that with Article 22(3) of the Vienna Convention (“The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution”). This, however, seems unlikely to help Mr Assange to get himself to Ecuador without being arrested when he leaves the embassy to get into the car or at the port or airport when he gets out of it. A safer way might be for Ecuador to appoint him to the diplomatic staff of their embassy in London, for which the UK government’s agreement would not be required. Mr Hague would then expel him, after the Ecuadoreans had refused to waive his diplomatic immunity. But Assange would retain his diplomatic immunity from arrest until he had left the UK, presumably on his way to Ecuador and political asylum. Such diplomatic chicanery to enable Assange to escape British and Swedish due process would lay Ecuador open to retaliation – Britain could expel its ambassador or even break off diplomatic relations – but the Ecuadoreans might think it worthwhile. No doubt Mr Assange would!
Brian Barder
London
Since I submitted my letter, a friend much better qualified than I has queried my assertion that the British government’s approval would not be required for Ecuador to appoint Mr Assange to the diplomatic staff of its embassy in London, citing Article 8 (2) and (3) of the Vienna Convention:
2.Members of the diplomatic staff of the mission may not be appointed from among personshaving the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Mr Assange, being an Australian citizen, would be covered by (3), which seems to entitle the British government to withhold consent from the appointment to the Ecuador embassy of a national of neither Ecuador nor the UK — but arguably, by implication (“may reserve”), only if HMG has availed itself of the permission given in 8(3) to reserve that right in respect of nationals of a third state and has notified Ecuador that it has decided to exercise it. The Convention seems unclear about whether the right under (2) of the receiving state (the UK) to withdraw its consent to an appointment “at any time” also applies to (3) and therefore to Mr Assange. All one can say is that an attempt by Ecuador to go down this route would seem likely to provide lucrative employment for many years to lawyers representing Ecuador, the United Kingdom, Mr Assange, and Sweden, and probably the judges of one or more international courts and tribunals, before the matter could be resolved. Throughout this time, Mr Assange would presumably continue to be confined either to the London flat which serves as the embassy of Ecuador, or possibly to an English prison while he once again contests, this time on grounds of his disputed claim to diplomatic immunity the UK’s right to extradite him to Sweden.
The other letters on the subject also published today (including one from the indefatigable Mr Keith Flett) raise some other interesting questions. One letter-writer thinks the British government should “insist” on Sweden sending its prosecutors to interview Assange in the Ecuadorean embassy in London — forgetting that it’s for the Swedes, not us, to decide where they should question him about serious allegations made by Swedes about crimes allegedly committed in Sweden. If the questioning were to result in a decision to prosecute Assange, he would clearly need to be in Sweden to be arrested and charged, which could hardly happen in a 
foreign embassy in London. Another letter questions William Hague’s announcement that HMG doesn’t recognise the concept of diplomatic asylum, recalling that Britain didn’t object the the Americans sheltering Cardinal Mindszenty from the communist government of Hungary for 15 years in their embassy in Budapest. But Mr Hague’s announcement probably refers to a convention on diplomatic asylum signed by a number of South American states, including Ecuador, but not by the UK, which among other things obliges the country where a refugee has been given shelter in a foreign embassy to give the refugee safe passage to the embassy’s home country. HMG has already made it clear that it will not give Assange safe passage to Ecuador or indeed to anywhere else other than Sweden, and Britain has absolutely no obligation to do so under international law.
Today’s excellent Guardian editorial provides a refreshing reminder that the issue at stake here is the serious allegations of sexual assault and rape made against Mr Assange arising from his conduct in Sweden. The Guardian has tried to work with Mr Assange and knows whereof it speaks. Those who are emotionally committed to him as the founder of Wikileaks and the orchestrator of the publication of a vast mass of American classified documents hardly seem the kind of people who would argue that a serious rape allegation should not be followed up by proper investigation; radical feminists have long protested at the frequent failure of police forces here and elsewhere to take accusations of rape and other offences against women sufficiently seriously. It is these allegations which Mr Assange is struggling so ingeniously and energetically to avoid answering, not extradition to the United States on an application by the US which has not been issued, to face charges which have not been laid. The motives of the Ecuador government in coming to his rescue to save him (temporarily) from extradition to Sweden seem connected with its practice of irritating Washington (which clearly has no love for either Wikileaks or its founder) whenever possible, and strengthened by Mr Hague’s inexplicable blunder in explicitly threatening to use non-existent powers to send his coppers into the Ecuador embassy without its permission to arrest Mr Assange, in plain contravention of international law, thus regrettably putting Britain in the dock alongside Mr Assange. None of this should distract attention from the only serious issue: should Mr Assange go to Sweden, preferably voluntarily but otherwise in handcuffs, to answer the allegations against him? Of course he should.
Postscript: Amid the plethora of blog posts and comments on the Assange affair, here are two which usefully explode some myths and provide clarification of the law:
http://www.newstatesman.com/blogs/david-allen-green/2012/08/legal-myths-about-assange-extradition
and
Brian
If I were to be asked, however improbably, to advise the Foreign Secretary, William Hague, on the position regarding Julian Assange and the alleged right of the British authorities to enter the Ecuadorean embassy to arrest him without Ecuador’s permission, I might write a submission on these lines:
Summary
The British government’s threat to force its way into the Ecuadorean embassy to arrest Assange without Ecuadorean consent was a tactical and public relations blunder, and the claim that Britain had a right in law to take that action was embarrassingly wrong. Under the Vienna Convention, which can’t be overridden by any UK law, the embassy has immunity from search or entry without its consent. There should be an inquiry to establish the responsibility for such an extraordinary blunder. How best to try to end the impasse over Assange’s future (and if possible to fulfil our legal obligation to extradite Assange to Sweden) depends now on persuading the Ecuadoreans to persuade, or compel, Assange to leave the embassy and give himself up, as the only alternative to lifelong detention inside the embassy, or to persuade Assange himself of this reality, or to persuade the Swedes to drop their application for Assange’s extradition (given that he has not been charged with any offence), or to turn a blind eye to an Ecuadorean arrangement to fly him to Ecuador without being arrested between the embassy and the plane. Several of these options, but regrettably not the last, are worth trying simultaneously. If they all fail, there may be no alternative to doing nothing, and accepting that Assange will remain indefinitely in the Ecuador embassy.
Background
Julian Assange, an Australian citizen and the founder of Wikileaks, has taken refuge in the embassy of Ecuador in London to avoid being arrested by the Metropolitan Police under an EU arrest warrant and extradited to Sweden, where he is wanted for questioning about alleged sexual offences, although he has not been charged with any offence there. Assange fears that if extradited to Sweden, he risks being re-extradited by the Swedes to the United States and prosecuted there for offences (some of which might carry the death penalty). Meanwhile the government of Ecuador has granted Assange political asylum as a political refugee; the British government says it will not grant Assange safe passage from the Ecuadorean embassy to a UK airport or port to enable him to go to safety in Ecuador; and the Foreign & Commonwealth Office has reportedly informed the government of Ecuador in writing that the UK government claims the right, under the UK’s Diplomatic and Consular Premises Act 1987, to send its policemen or others to enter the Ecuadorean embassy, if necessary without the consent of the Ecuador ambassador, and there to arrest and remove Mr Assange — a claim vigorously rejected by the Ecuador government as contrary to the Vienna Convention, 1961, and thus in breach of international law.
The legal position
Assange has been lawfully arrested for extradition to Sweden under a valid warrant which HMG is legally obliged to try to execute. Assange has violated his bail conditions by taking refuge in the Ecuador embassy and is therefore liable to be re-arrested and held in UK custody pending extradition to Sweden. The immediate question is whether HMG may lawfully arrest Assange inside the embassy without the consent of the Ecuadorean authorities.
The Vienna Convention 1961 provides that “The premises of the [diplomatic] mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission… The premises of the mission … and the means of transport of the mission shall be immune from search, requisition, attachment or execution” (Article 22). That seems as clear as it could possibly be.
The UK’s Diplomatic and Consular Premises Act 1987 purports to empower the Foreign Secretary to decide what land and premises may have diplomatic or consular status and thus be entitled to diplomatic immunity, and to withdraw diplomatic or consular status from any land or premises if “a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post” (S. 1(a)) — but the Secretary of State may exercise his powers under the Act only “if he is satisfied that to do so is permissible under international law” (S. 1(4)). (The limitation expressed in the word “exclusively” applies only to consular premises, which are irrelevant to the present case. Diplomatic as distinct from consular premises, such as an embassy, may obviously be used for purposes other than and additional to those of the mission, without risking withdrawal of their diplomatic status and immunities by the Secretary of State.) The Vienna Convention forms part of international law and thus part of UK law, binding on the government and everyone else. Accordingly, the Secretary of State’s powers under the UK law can’t override the protection given to the Ecuador embassy under the Vienna Convention. In fact, they couldn’t anyway, even if the UK law didn’t stipulate that they can’t. A state can’t escape from its obligations under international law by passing a law purporting to give itself permission to do so. If it could, all treaty obligations would be worthless, including those imposed by the United Nations Charter.
It’s worth noticing that not only the embassy itself but also “the means of transport” of the Ecuador embassy — such as the ambassador’s official car — are “immune from search, requisition, attachment or execution” under the Convention, which suggests that if Assange could be put into an embassy car without leaving the embassy premises, he could then be driven to an airport or port without any fear of the car being stopped and Assange hauled out of it and arrested. On the car’s arrival at the airport or docks there might in principle be a few moments when Assange could be arrested and prevented from escaping to Ecuador, but probably not before then.
Political aspects
The protection given to embassies under the Vienna Convention is essential if diplomats are to be able to do their jobs without interference and harassment by the local government. There are many British embassies and high commissions around the world which would be vulnerable to invasion and perhaps personal violence, the seizure of confidential documents, the wrecking of communication systems and the arrest of embassy staff, if the host countries were able to ignore their Vienna Convention obligations — and some would be quite likely to attack our embassies if they could quote as a precedent for doing so action by HMG to invade the Ecuador embassy in order to arrest Assange in clear contravention of our international law obligations and indeed of our own law.
By the same token, Britain (like many other western countries) has from time to time been able to protect refugees from oppression or injustice in totalitarian states by giving them temporary asylum in one of HM embassies, pending discussions with the host authorities of safeguards to be observed when they leave the embassy. Such a case occurred during my own time as a First Secretary in the British embassy in Moscow in the early 1970s, at the height of the cold war. The case of Cardinal Mindszenty of Hungary also comes to mind. In the words of Wikipedia,
The Venerable József Mindszenty (March 29, 1892 – May 6, 1975) was a cardinal of the Roman Catholic Church as the Archbishop of Esztergom in Hungary. He supported Church freedom. He was an opponent of communism and the Stalinist persecution in his country. As a result, he was tortured and given a life sentence in a 1949 show trial that generated worldwide condemnation, including a United Nations resolution. Freed in the Hungarian Revolution of 1956, he was granted political asylum and lived in the U.S. embassy in Budapest for 15 years. He was finally allowed to leave the country in 1971. He died in exile in 1975 in Vienna, Austria.
Even communist Hungary in cold war days resisted the temptation to violate the immunity of the American embassy in Budapest by forcibly entering it to arrest the Cardinal, although for 15 years he was unable to leave the embassy’s premises for fear of being arrested immediately if he did so.
It has been suggested that our legal obligation to extradite Assange to Sweden overrides our Vienna Convention obligation to respect the immunities enjoyed by the Ecuador embassy. Such an argument doesn’t survive a moment’s thought. We are obliged to arrest and extradite Assange if and when we can legally lay hands on him. At the moment, we can’t. There can be no blame for failure to do the impossible, an established legal principle as well as a matter of common sense.
It’s thus safe to predict that if Britain were to act in the way we have apparently threatened to do (even claiming the legal right to do), and forced our way into the Ecuador embassy to arrest Assange without the ambassador’s permission, we would arouse a storm of protest and indignation around the world. The episode could only end in our humiliation and a formal undertaking never to repeat our offence. Legal action against us would be almost certain. We would have few, if any, defenders. Assange might even benefit from the event, since the courts might well rule that his arrest on foreign diplomatic premises had been illegal.
Recommendations 
By threatening the Ecuadoreans with action in plain contravention of international law, we have wrong-footed ourselves, incurred widespread international incomprehension and dismay, and fatally antagonised the government of Ecuador just at the time when we need their help and cooperation in ending the impasse over Assange’s future. Before doing anything else, we should make it publicly clear that in no circumstances will there be any entry into the Ecuador embassy in London without the consent of the ambassador, for the purpose of arresting Assange or for any other reason. That done, we can consider the options, however unattractive they might be:
a. We could informally indicate to the Ecuadoreans that we will turn a blind eye to any action they might take discreetly to remove Assange to Ecuador, without fuss or publicity.
b. We could equally discreetly seek to persuade the Swedish authorities to agree to question Assange by telelink between Stockholm and the Ecuador embassy in London (as Assange has suggested), in the hope that following questioning they will decide that there is insufficient evidence to warrant charges: or try to persuade them to agree to withdraw the arrest warrant on the grounds that in the absence of any charges against Assange, continued attempts to extradite him to Sweden would be oppressive.
c. We could appeal to the Ecuador government to accept that we have a legal obligation to try to extradite Assange to Sweden, that he can be confident of due process and an impartial judicial system in both the UK and Sweden, and that rather than sentencing him to what could amount to life-long imprisonment in the Ecuador embassy without his having been charged with or convicted of any crime, the lesser evil is to persuade him to leave the embassy and give himself up to face extradition and questioning — not necessarily even prosecution — in Sweden.
d. We could do nothing, and hope that eventually either Assange will get tired of being cooped up in the Ecuador embassy and walk out of his own free will, or the Ecuadoreans will get fed up with harbouring their controversial guest (never the most accommodating or cooperative of friends) in their smallish embassy, and will set a deadline beyond which he will not be allowed to stay.
e. We could try to deport Assange to Australia as an undesirable alien. But to do that we would need to take physical possession of him, which in turn would depend on success with (b) or (c). And once he is in UK hands, there should be no further obstacle to extraditing him to Sweden as we are legally obliged to try to do. Deportation to Australia might become an option if Sweden withdrew its application for extradition.
Of these, (a) is the most tempting. But our tacit complicity would inevitably become known and Sweden would have just grounds for complaint. Both (b) and (c) are worth a try, not being mutually exclusive, although we have damaged the chances of success with (c) by trying to bully and bluff the Ecuadoreans instead of inviting their help and cooperation in the search for a solution. If both (b) and (c) fail, there will be no alternative to (d).
One final recommendation. The threat to force our way into a diplomatic mission without its ambassador’s consent and in contravention of international law was a major and incomprehensible blunder which has done us great harm, as well as greatly complicating the search for a solution to the problem of Assange’s future. Not only ministers and MPs but also the general public are entitled to know who was to blame for this blunder: at what level in the FCO or other department it was approved: whether the FCO legal advisers or the Law Officers of the Crown were consulted about it in advance and if so what advice they gave: and whether ministers knew of it in advance, were advised of its illegality as well as its inadvisability on practical grounds, and approved it nevertheless — and if the answers to any of those questions is Yes, which ministers and/or officials should be held to account. This clearly points to the need for a public inquiry. Ministers should announce one now.
PS: The media and the pundits are gleefully rehashing the old myth that inside an embassy one is on the sovereign territory of that embassy’s home country, and that the laws of the surrounding country don’t apply in the embassy’s buildings and grounds. This, sadly, is not so. Diplomats are required by the Vienna Convention to “respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State” (Art. 41). They are immune from being prosecuted or (in most circumstances) even sued if they break the law of the country in which they serve, but that doesn’t mean they have no obligation to “respect” (i.e. comply with) them, and if they break the law in a sufficiently serious way, the receiving State is entitled to expel them. The FCO seems to be arguing that by harbouring Assange, a bail-breaker wanted by the police, the Ecuador diplomats are either breaking UK law or at least behaving in an unacceptable manner, incompatible with their responsibilities as diplomats. Unfortunately for the FCO, the many precedents, from Cardinal Mindszenty downwards, don’t support this argument, which, if accepted, would blow a large hole in international theory and practice regarding the right of asylum in diplomatic premises for fugitives from harsh treatment in the receiving State, whatever the rights and wrongs of the case. In any event, complaining about the behaviour of the Ecuadorean diplomats does nothing to promote a solution of the main problem — what to do about Assange? — apart from further antagonising the very people whose cooperation we need if ever we are all going to escape from the present impasse.
Update (2330, 16 Aug 2012): An excellent post on ‘The Blog That Peter Wrote’ corrects many widespread misconceptions about Assange, and also performs an invaluable service by supplying a link to the text of the FCO ‘letter’ — actually an Aide Memoire, less formal than a letter but still an expression of British government policy — which is available on the Web here. The relevant passage in this revealing document reads as follows:
- We must reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention and unsustainable, and that we have made clear the serious implications of same for our diplomatic relations.
- You should be aware that there is a basis in law in the UK (the Diplomatic and Consular Premises Act 1987) that would permit us to take steps to arrest Mr Assange within the current premises of the embassy.
- We sincerely hope that such a point is not reached, but if you cannot resolve the presence of Mr Assange on your premises, that route is open to us.
If that’s not a threat based on an unsustainable assertion of a non-existent legal right, I don’t know what is. If harbouring a dissident or refugee from the authorities of the host country in one’s embassy is incompatible with the Vienna Convention, the FCO needs to explain why Britain and numerous other western countries have repeatedly allowed our embassies to be used in precisely this way; and even if it were to be accepted that this behaviour is incompatible with the Convention, there is nothing in the Convention that would entitle a host government to respond by entering the embassy premises without the ambassador’s consent. The worst that the host government could legally do in response to behaviour in an embassy that it believed to be incompatible with the Convention would be to break off diplomatic relations with the country concerned, or (slightly lower on the scale) expel the ambassador, with or without other members of her diplomatic staff. Either measure would prompt reciprocal retaliation and have extensive ramifications going way beyond the problems presented by Mr Assange.
Brian
