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Insights into the world of the foreign office lawyer

Published on July 9, 2012        Author: 

I’ve long been a fan of Joshua Rozenberg, who I believe is one of the best legal commentators in the United Kingdom, and among other activities, is the presenter of a worthwhile program called “Law in Action” for BBC Radio 4, which I listen to in Canada via podcast.

Recently, while going through last month’s podcast collection, I listened with interest to Rozenberg’s first program for the summer 2012 season, entitled “Secret courts, drones and international law” which featured an interview with Sir Daniel Bethlehem KCMG QC, (or “Kindly Call Me God” as the old joke goes), the former principal Legal Adviser with the UK’s ministry of foreign affairs, the Foreign and Commonwealth Office (FCO). Rozenberg also interviewed EJIL Talk’s own blogger-extraordinaire Dapo Akande as well as Mary-Ellen O’Connell of the University of Notre Dame for this program, which aired in early June, but you can still listen to it here.

The role of the Legal Adviser, supported by deputy and junior legal advisers, or attorneys if you are American, is to serve as the chief adviser to the government on matters of international law, with transparency initiatives having led to fancy organograms on the FCO website that help illustrate the seniority of the Legal Adviser role and the size of his or her office. (The Prime Minister’s Office still hosts an org chart from Bethlehem’s time here.)

Bethlehem was the first principal Legal Adviser at the UK Foreign Office who had come to the position from outside government service.  Prior to which, he was the Deputy Director then Director of the Lauterpacht Centre for International Law at the University of Cambridge. (An earlier summary of Bethlehem’s career can be found on EJIL Talk! here.) Rozenberg’s interview is possibly Bethlehem’s first since finishing his five-year term with the Foreign Office – serving from May 2006 to May 2011 – and it provides some insight as to the practice of international law from the perspective of the centre of government.

I was, however, surprised and then intrigued to hear Bethlehem express a need for the Prime Minister to have his own legal adviser. Bethlehem describes this as a “machinery of government failing” but my first thoughts turned to the dangers that can arise when Prime Ministers or Presidents hire their own lawyer-ideologues who then override legal advice from in-service government lawyers tasked with advising whoever is in power. The whole US “Torture Memos” fiasco immediately came to mind, as did the work of Pulitzer Prize-winning journalist, Charlie Savage, now with the New York Times, whose book Takeover well documents the dangers of a legal ideology being pushed from the top. While I don’t doubt that a Prime Minister could hire a lawyer capable of providing objective advice, my thoughts turned to bolstering the post of Attorney General as an independent law officer at the cabinet table who is not a member of the government, akin to the constitutional office of Attorney General in Ireland.

Meanwhile, also out in June, readers will find that the latest issue of the Georgetown Law Journal carries additional insight into the work of the Foreign Office lawyer, with an article now out in print by US State Department Legal Adviser Harold Hongju Koh commemorating the 80th birthday (in 2011) of that country’s equivalent office (known to many as “L”). Koh is currently on leave from Yale Law School to serve as the US Legal Adviser at the State Department. The article is found here, perfectly timed to add to one’s summer reading list, with the appendices also providing some insight into the extent of the interaction between foreign office lawyers and the international law professoriate in the US – an interaction I view as beneficial.

For further analysis, readers may also be interested in the 2010 book by Michael P. Scharf and Paul R. Williams on Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, published by Cambridge University Press, and found here.

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