The Role of the FCO in UK Government

Written evidence from Anthony Aust

General point: it would be a mistake to appoint businessmen as British ambassadors

My experience

1. I was for 25 years a Legal Adviser in the Foreign and Commonwealth (FCO), retiring in 2002 as Deputy Legal Adviser. I read law at the London School of Economics (LSE), became a solicitor and then joined the FCO. Throughout my career, I gave legal advice to FCO departments. Before and since I retired, I have taught international law as a visiting professor at University College London, the School of Oriental and African Studies (SOAS), LSE, Westminster University and Notre Dame (London). I have also taught and given seminars at other universities and other places in the United Kingdom and abroad: see the attached (and rather short) CV.

2. During my time in the FCO, I got to know well those who I advised and their particular concerns and how they operate. Like any lawyer, one has to know all the relevant facts of any case and appreciate the pressures on the client, which in this case was principally the department and the Foreign Secretary or a junior FCO minister. This was exemplified by the Lockerbie affair. By this I mean not only the criminal case, but also the case brought by Libya against the United Kingdom and the United States at the International Court of Justice (ICJ), and the need to get the backing of the UN Security Council for what we wished to do in both with the criminal case and at the ICJ.

3. I was posted abroad twice for three years each time: West Berlin 1976-1979 and as a Legal Adviser to the UK Mission (i. e. British Embassy) to the United Nations in New York in 1988-1991.

4. Each FCO department has one or more legal advisers, and usually one has at least four departments to advise at any one time. Each year one may drop one department and be assigned another to advise. Sometimes, one may advise a department for much longer, so providing much needed continuity. Nevertheless, during one’s career, one will advise most departments. This gives one an understanding of each department’s concerns. Although one is not responsible for the policy adopted by a department you advise, one is a full member of the FCO and soon learns of the problems facing the department.

5. As an FCO Legal Adviser, I worked closely with the members of the departments that I advised. Usually, they were not legally qualified persons although they were generally well aware of the problem facing them and usually understood very well my legal advice. In this, like most of my colleagues, I was at pains to make the advice understandable to a layperson. There is no point in writing as one would to another lawyer if the layperson would not understand the advice. I therefore experienced few problems, and was glad that I did not have to advise ministers on difficult policy problems, merely on the legal aspects of the problem. However, given my experience, from time to time I was able to suggest a practical way out of a policy quandary.

6. Knowing the diplomatic and political pressures (both on the UK Government and other relevant governments) is especially important for matters coming before the United Nations. When I was Legal Adviser to the UK Mission to the United Nations, the time was particularly important since I saw at first hand the effect of the end of the Cold War on the policy of East European Governments. When I left the post in August 1991, I became, inter alia, Legal Adviser to the FCO’s UN Department, where I saw from the perspective of the FCO the break-up of Yugoslavia, and continued to monitor the doings of the UN Security Council.


7. Working so closely with non-lawyers, I got to know well the subject they were concerned and was impressed by the way they tackled it. Despite the changes in nomenclature - borrowed chiefly from the City and large companies - the way the FCO operates has not essentially changed. It has to take into account the views of other governments and seek to find a way which protects British interests and, if necessary, those of our allies. That task is far from easy, but it is the essence of the task of any foreign ministry. Putting it more simply, it is (generally) being nice to foreigners in order to get our way. This is now more difficult since we are no longer a Great Power either military or economically, and our empire had shrivelled to a handful of generally poor and troublesome overseas territories. Yet, we are judged by the effectiveness of our diplomacy. In other words, are we to be taken seriously?

8. Based on my long experience of working with the FCO, I believe that nothing substantive needs to be changed in the way it works. Despite alterations in nomenclature (for example an Under-Secretary becoming a Director), which may be understandable, the challenges facing the FCO and its diplomats remain essentially the same. That is knowledge of the local language; the local ways of doing business; and the concerns of the foreign country.

Local language

9. It would be a big mistake to think that because English has now replaced French as the ‘international language,’ and so is widely understood and spoken, and that a British diplomat can get by speaking only or mainly English. Although his opposite numbers may understand and speak English apparently fluently, it is not usually their language. Thus, serious mistakes and misunderstandings can occur if one does not know the local language well. Therefore, to be truly influential with members of a foreign government and their officials (and to report back accurately), one must be able to speak and understand their language well. It would therefore be a mistake to recruit most businessmen as diplomats, even as ambassadors. They are unlikely to know well enough the country, its concerns or its people. Their skills (even if otherwise considerable) are different to that of diplomats.

10. The US practice of appointing as ambassadors many non-diplomats (such as businessmen) is not a path the United Kingdom should follow. What is done in the United States is very different. Each Presidential election is most expensive and if their candidate is successful, many large donors expect to be appointed as ambassadors. In fact, those so appointed usually only host meals and cocktail parties and give set speeches; most of the real work of the embassy being done by their deputy, who is a full and experienced member of the US Foreign Service.

Ways of doing business

11. Even European businessmen do business in ways that are not ours; this applies even to what we regard as our closest neighbours. It would therefore be a mistake to appoint businessmen as ambassadors unless they are very aware what really matters to the businessmen they have to deal with, as well as speaking and understanding their language very well. Today, their concerns are often related to foreign policy.

Concerns of the foreign country

12. Political concerns will also influence foreign businessmen when dealing with the United Kingdom. These will be truly understood only by UK diplomats who live among them and speak their language. The British ambassador may be given false encouragement, though he should understand this. A businessman ambassador may not be so lucky.


13. I advised FCO ministers, officials and other government departments on public international law, constitutional law and UK law. I acquired an in-depth knowledge of most areas of international law, including the law of treaties, international civil aviation, diplomatic privileges and immunities, counter-terrorism, dispute settlement, Antarctica and defence. I had over 10 years close involvement in UN legal affairs in New York and London. I am experienced in drafting treaties, constitutions and legislation.

14. Now I am consultant on public international law and constitutional law to British ministries (e.g. FCO, DfID and Defra), other Commonwealth and foreign governments, international organisations and law firms in London and abroad. I have been the Deputy Director and a Visiting Fellow of the British Institute of International and Comparative Law. I have been a visiting professor at the London School of Economics (LSE), University College, London (UCL) and the School of Oriental and African Studies (SOAS). I have also taught elsewhere.

15. Cambridge University Press published my Modern Treaty Law and Practice, in (2nd edn 2007; Chinese edn, 2004); and my Handbook of International Law (2nd edn 2010). I also write on international law for chapters in edited books and in articles for learned journals.

10 December 2010