Symposium : The Impact of International Law on Foreign Policy-Making: The Role of Legal Advisers
Abstract
Any consideration of the part played by international law in the conduct of the United Kingdom's international relations requires some preliminary description of the way in which both the Foreign and Commonwealth Office and its legal advisers are organised. The inter-relationship between the legal advisers and the rest of the Office is fundamental to the extent to which the Foreign and Commonwealth Office, in its day to day practice, can and does take account of international law.
I. The Legal Advisers and the Foreign and Commonwealth Office
At full strength, the British Diplomatic Service has a team of twenty-six legal advisers. Of these, twenty serve in the Foreign and Commonwealth Office (FCO) in London. Four others serve at diplomatic posts abroad - in Berlin, Bonn, Brussels and New York. In addition, there are two legal advisers who are seconded outside the FCO - one with the Legal Secretariat to the Law Officers (about which more will be said later), and the other with the Government of Hong Kong (a somewhat special post, but necessary for obvious reasons at this particular stage in Hong Kong's development).
The legal advisers are all professionally qualified (or, exceptionally in the case of new recruits, about to become fully qualified in the very near future). In British terms this means that they are all either barristers or solicitors, or their Scottish equivalents. Recruitment is by means of open competitions organised by the Civil Service Commission, which is the body principally responsible for recruiting civil servants. These competitions are usually held every two or three years, and in general one or two lawyers are recruited at a time: with a relatively small group of twenty lawyers in London, it can be difficult to absorb and train more than two new recruits at any one time. The selection of candidates is based on a scrutiny of their academic and professional qualifications and experience as well as interviews with short-listed candidates.
Generally speaking, successful recruits will either have been lawyers in private or public practice or have come direct from universities. In addition to their professional qualifications, they will nearly always have some post-graduate qualifications or experience in either public international law or in subjects which are related to public international law, such as European Community law or Human Rights law.
It is also to be noted that the legal advisers are career-long legal specialists. They join the Diplomatic Service as legal advisers, and stay as legal advisers. They are nevertheless members of and integrated into the Diplomatic Service. It is possible for legal advisers to transfer to the mainstream Diplomatic Service, but this is rare.
The way the legal advisers contribute to the work of the FCO depends upon the way in which that Office is organised. It has about seventy Departments; some are geographical Departments (such as Western European Department, South American Department, and North American Department), while others are functional Departments (like Protocol Department, and Consular Department). Each of these Departments has a designated legal adviser: each Department knows to whom it should turn if it needs legal advice on some aspect of its affairs. The mathematics make it evident that with only twenty legal advisers in the FCO and some seventy Departments, each legal adviser has to advise more than one Department. It is in fact a little more complicated than that, because some Departments are split for purposes of legal advice. To give an example, the South American Department deals not only with South America (Brazil, Uruguay, Argentina, Chile, and so on) but also with Antarctica. Antarctica, however, is somewhat special and certainly raises foreign policy and legal issues quite different from those which arise in relation to the States of the South American continent. It is therefore convenient to have for Antarctic matters a different legal adviser from the one who advises the rest of the South American Department. For some other Departments, or indeed for certain subjects within a Department, there may be more than one legal adviser. Thus, for example, the FCO has two European Community Departments: one dealing with internal Community matters and the other dealing with external Community matters. Each of these Departments has more than one legal adviser doing its legal work simply because there is so much of it. Another example is afforded by the Maritime, Aviation and Environment Department. The aviation part of this Department is concerned mainly with civil aviation agreements with all other States with whom the United Kingdom has such agreements. Much legal work is involved here, and in particular a lot of negotiating with other States. This is why international aviation matters have to be dealt with by three legal advisers quite distinct from the legal advisers who deal with the maritime and environmental aspects of the Department's work.
When a legal problem arises, it is up to the Department concerned to consult its designated legal adviser. There are also arrangements whereby it is always possible for the more senior and experienced legal advisers to be consulted on any particularly complicated or sensitive matters or for them to take the initiative in supervising or conducting work on them.
The legal advisers have two main functions. One is to give legal advice to the FCO on all aspects of its work, including questions of English law concerning, for example, matters of employment or contracts, the Office's activities in London, and the legal aspects of international relations. Their second main function is to give legal advice to other Government Departments on matters of international law, or indeed any other matters on which, for some reason, the FCO legal advisers have particular expertise. This includes, for example, human rights law - in particular questions affecting the European Court and Commission of Human Rights in Strasbourg - and some aspects of European Community law.
The legal advisers' work falls into five main categories. First, there is what may simply be called the daily round of departmental legal problems: whether to have dealings with a revolutionary government, maritime law problems, legal aspects of the administration of the United Kingdom's remaining colonies, protection of British property rights abroad, diplomatic privileges and immunities - a whole range of day-to-day legal issues. Second, there is work related to treaties. Apart from questions of treaty interpretation and application, all treaties concluded by the United Kingdom, whatever their subject matter, must be cleared by FCO legal advisers, who will also often be closely involved in their negotiation. Third, legal advisers regularly attend conferences or negotiations at which legal issues arise. A conference to prepare a treaty - quintessentially a legal matter - will clearly come within this category, but many other international meetings also do so. Fourth, the legal advisers have responsibility for legislation which is the concern of the FCO. Finally, they are closely concerned with litigation in which the FCO has an interest. This includes international litigation before the International Court of Justice and ad hoc arbitral tribunals, and litigation before the European Court or Commission of Human Rights, where the Agent, and sometimes Counsel, for the United Kingdom will be a FCO legal adviser; it also includes some litigation before the European Court of Justice, or domestic litigation in British courts or in courts abroad. Although the extent to which the Foreign Office legal advisers are involved in such litigation varies - and in particular they do not directly appear as counsel in domestic litigation in the United Kingdom or abroad - they will be closely associated with all cases with an international law element which involve the British Government.
There are three final points to be made. First, while the FCO legal advisers are the source of legal advice to the FCO, the ultimate and authoritative source of legal advice on international law as well as English law to the British Government is the Attorney-General and his Ministerial colleagues, together known as the Law Officers of the Crown. Accordingly, on really difficult legal issues or on legal issues which are politically very sensitive the FCO legal advisers consult the Attorney-General through the Legal Secretariat which works for him. To put this in perspective, perhaps 99% of the FCO's legal work is done within the Office by the Legal Adviser and his staff, while some 1% is referred to the Law Officers. It is also worth noting that in the United Kingdom, the Attorney-General and the other Law Officers, in addition to being professionally qualified and experienced as lawyers, are Ministers in the Government and Members of Parliament rather than civil servants.
The second point concerns the FCO's use of outside legal consultants. Generally, outside consultants are not used very often or on any regular basis. But it can happen, particularly in connection with major international disputes which do, or could, lead to litigation. In such matters one should distinguish between the outside legal assistance given by counsel, and that given by academic specialists. But this distinction is not sharp: academic lawyers are often qualified as, and practice as, barristers, and particularly with major international disputes the role of consultant at the pre-litigation stage often merges with the role of counsel in the litigation. When the United Kingdom has a case before the International Court of Justice or some international arbitral tribunal, or a case of any substance before the European Court or Commission of Human Rights, the FCO would certainly rely either on one of the Law Officers or on counsel in private practice for the conduct of the case. The FCO legal advisers would undoubtedly be very heavily involved in the preparatory work, and would provide the Agent for the British Government in the case. But for the advocacy before the tribunal the FCO would normally turn to practitioners from outside the Office. Occasionally, the FCO consults leading academic lawyers to give opinions on questions of international law where its legal advisers either are not in a position to undertake the necessary research or do not have the particular expertise that an academic can offer. But this does not happen very often, and is in any case more often than not connected with actual or prospective litigation.
The final point to note is that the FCO legal advisers do not advise on foreign law. British embassies and consulates abroad usually have a local firm of lawyers to whom they can turn for their local law problems, such as traffic accidents, conveyancing of immovable property, or issues of landlord and tenant relationships. The FCO legal advisers do not claim to have any professional qualifications under, or expertise in, the laws of other States (although it may happen that they do acquire some knowledge of such laws during the course of their work). In this context, two particular factors to note are that the constitutions of most States which have attained independence after being British colonies will have been largely prepared by an FCO legal adviser, and that those independent States which are members of the Commonwealth (particularly if they remain monarchies with Queen Elizabeth II as Head of State) share with the United Kingdom certain common constitutional elements.