The Role of the FCO in UK Government - Foreign Affairs Committee Contents


Written evidence from Sir Michael Wood KCMG[17]

SUMMARY

(i)  This submission concerns the FCO's role within Government in the legal field. That includes public international law (such as the law on the use of force, the law of armed conflict, international human rights law, and international criminal law), EU law, the law of British overseas territories, and UK law in so far as it concerns international relations.

(ii)  The role of law in international affairs has greatly expanded in recent times, with globalisation and emphasis on a rules-based international system, the enhanced role of international and domestic courts in the field of international relations, together with new developments such as the international criminal tribunals.

(iii)  Upholding the rule of law in international affairs is an important policy objective of the UK Government. Doing so contributes both to stability in the world (and thus among other things to the Government's defence and security policies), as well as to the Government's influence internationally.

(iv)  The FCO has a key role within Government in ensuring both that the UK Government itself conforms to international law, and that the UK Government promotes the rule of law internationally, by encouraging States to respect international law and by contributing to its sound development.

(v)  In the achievement of these objectives, the FCO's legal team plays a central role in ensuring that Government as a whole has the necessary specialist legal advice and experience.

(vi)  They do this by participating actively within the FCO, and more widely in Government, in the development and presentation of policy. They represent the UK internationally, in multilateral and bilateral negotiations involving legal questions, including within the UN and EU. And by acting as Agent and Counsel they ensure the proper conduct of international litigation in which the UK is involved (for example, before the International Court of Justice and the European Court of Human Rights).

DETAIL

The importance of the rule of law in international affairs

1.  Upholding the rule of law in international affairs is an important policy objective of the UK Government. The Secretary of State for Foreign and Commonwealth Affairs addressed this in a speech at Lincoln's Inn on 15 September 2010.[18] He stressed the need "to strengthen a rules-based international system based on our values", and explained that the Government saw human rights and upholding international law "as essential to and indivisible from our foreign policy objectives." He continued,

"our interests depend on a world system based on law. We need states not to proliferate nuclear weapons, to respect the sovereignty of others, to abide by international treaties and to support legal sanctions by the international community."

The Foreign Secretary added that "[o]ur standing is directly linked to the belief of others that we will do what we say and that we will not apply double standards."

2.  In short, upholding the rule of law internationally contributes both to stability in the world (and thus among other things to the Government's defence and security policies), as well as to its influence internationally.

The FCO legal team and their work

3.  The FCO legal advisory team comprises around 65 London-based staff, of whom around half are lawyers, plus a further 10 or so lawyers on secondment to other government departments or on postings abroad, including at the UK Missions in New York and Geneva, in Brussels, The Hague and elsewhere. As had been the case for many years, a senior FCO lawyer is seconded to the Attorney General's Office.[19]

4.  This pattern varies from time to time. For example, for some years after 2003, an FCO lawyer was posted in Baghdad, initially working with ORHA/CPA and the UK Representative in Baghdad, then at the British Embassy. Members of FCO Legal Advisers are from time to time seconded to other organizations, or to policy jobs within the Diplomatic Service, for example as External Relations (RELEX) Counsellor at UKRep Brussels.

5.  The FCO Legal Advisers are members of HM Diplomatic Service, with the obligations (as to postings etc) that go with that position. They work on the whole range of legal matters relevant to the FCO. These include in particular questions of public international law, on which FCO lawyers assist other government departments, including on the law of armed conflict (international humanitarian law) and international human rights law. FCO legal work also covers a wide range of other areas that impacts on foreign policy, including European Union law; the constitutional and other law of the British overseas territories; and UK law in so far as it relates to international relations as well as to the FCO itself (such as employment law, data protection, freedom of information, the intelligence and security services).

6.  The range and emphasis of the legal work within the FCO varies over time, in light of current problems. Since 9/11 there has naturally been an even greater emphasis than previously on legal aspects of counter-terrorism, within the UN, Council of Europe and EU, as well as in bilateral relations (diplomatic assurances etc), and on use of force issues (Afghanistan; Iraq).

7.  Legal advice on matters of public international law is given within the FCO and to other government departments, and is fully integrated into the development of policy. Any policy submission within the FCO raising legal issues will be based on, and where necessary include, legal advice. Much advice is given in the course of meetings with Ministers and officials. Most important papers within the FCO are copied to Legal Advisers, which enables them to volunteer advice where necessary, without waiting to be asked.

Comparison with other countries

8.  States have different traditions in the organization and functions of their government legal advisers in the field of public international law, based on three principal models.[20] Some combine elements of each.

9.  First, there is the system, as in the UK and the USA, where the lawyers in the office of the legal adviser at the foreign ministry are all professionally qualified lawyers, whose foreign ministry career is wholly or largely spent within the legal office rather than on regular diplomatic assignments. They are continuously involved in policy formulation, and in some fields have direct responsibility for policy, such as in treaty matters and the law of the sea, and when on an overseas posting or as head or member of a delegation to an international meeting.

10.  Second, there is the system, as in Germany, where the legal adviser's office consists of regular diplomats with some legal background or professional legal training.

11.  Third, in some countries the foreign ministry receives legal advice mainly from outside sources, typically from an Attorney General's Office. This is the position, for example, in Cyprus, Malaysia, Malta and Singapore, and to some extent Australia.

The FCO and other parts of government

12.  FCO Legal Advisers work closely with the lawyers, officials and sometimes Ministers in other government departments. They work closely, as necessary, with various parts of the Cabinet Office, as well as with the Treasury Solicitor. Officials from the Prime Minister's Office, and occasionally the Prime Minister, may sometime consult them directly where a matter is delicate or urgent (for example, in the preparation of PMQs).

13.  This is so at the stage of policy formulation, the drafting of legislation, and in connection with domestic and international litigation involving the FCO and its agencies or important questions of public international law.

14.  The relationship with both the Ministry of Defence and the Home Office is particularly close, and across a wide range of issues. As regards the MOD, these include the right to use force abroad (self-defence, Security Council authorization, rescue of nationals, to avert an overwhelming humanitarian catastrophe); the application of the Geneva Conventions and other laws of armed conflict; the application of human rights obligations to British armed forces overseas. As regards the Home Office, these include the full range of issues arising on the counter-terrorism agenda, as well as in respect of international human rights and refugee issues. The Attorney General will often be involved in such matters.

15.  FCO Legal Advisers are heavily engaged in matters concerning the United Nations and other international organizations, which often have cross-departmental implications. An example is UN and EU sanctions matters, where they are involved both at the stage of the adoption of the Security Council resolution/EU common position, and at the stage of drafting the necessary implementing legislation. This is an area which has seen a great increase in cases before the English and European courts, cases involving a large number of government departments and agencies.

16.  In respect of EU law, the FCO has a leading role when it come to drawing up new treaties (such as the Lisbon Treaty), on legislation (for example, the current European Union Bill) and on institutional matters generally.

17.  FCO Legal Advisers act as Agent (HMG's representative) in cases involving HMG before international courts and tribunals, regardless of which government department is most directly implicated. This includes cases before the European Court of Human Rights in Strasbourg (but not the European Court of Justice in Luxembourg). Examples include the Lockerbie and Kosovo cases before the International Court of Justice in The Hague; the MOX Plant cases before the International Tribunal for the Law of the Sea in Hamburg and an international arbitral tribunal. The FCO itself is increasingly involved, directly or indirectly, in litigation, before the English courts as well as before European and international courts and tribunals.

The FCO and the Attorney General

18.  The close relationship between FCO lawyers and the Attorney General and his Office is an important part of the machinery of government for ensuring that the United Kingdom complies with its legal obligations, including those under public international law. The Attorney General's support for the FCO lawyers, and their assistance to him, are key parts of this relationship.

RECOMMENDATIONS

19.  It is difficult to make specific recommendations without knowing the broad thrust of the Committee's Inquiry, and the degree of detail to be included in the Committee's report.

20.  Subject to this caveat, it is suggested that the Committee may wish to acknowledge in its report the FCO's central role within Government as regards the legal aspects of international relations. The Committee might also note in this connection the key importance of the relationship between the FCO (and its Legal Advisers) and the Attorney General, who is the Government's principal legal adviser, including on questions of public international law.

4 January 2011


17   Legal Adviser to the FCO 1999-2006. Back

18  "Britain's values in a networked world",
http://www.fco.gov.uk/en/news/latest-news/?view=News&id=22864405 
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19   There is a considerable literature on the role of FCO Legal Advisers, including F. Berman, "The Role of the International Lawyer in the Making of Foreign Policy", in C. Wickremasinghe (ed.), The International Lawyer as Practitioner. (BIICL 2000); A. Watts, "International Law and International Relations: UK Practice" (1991) 2 EJIL 157-164; I. Sinclair, "The Practice of International Law: the Foreign and Commonwealth Office", in Bin Cheng (ed.) International Law Teaching and Practice. (Stevens, 1982). Back

20   See the Council of Europe's "Database on the Office of the Legal Adviser of the Ministry of Foreign Affairs":
http://www.coe.int/t/e/legal_affairs/legal_co-operation/public_international_law/Office_of_Legal_Affairs/default.asp#TopOfPage. 
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Prepared 12 May 2011