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 Back
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. Back
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