Lincoln's Inn logo

The Employed Bar: A view from the Foreign, Commonwealth and Development Office

Margaret McGowan-Smyth is a Bencher at Lincoln’s Inn and works as an employed barrister in the Legal Directorate in the Foreign, Commonwealth and Development Office (FCDO). She is on Lincoln’s Inn Pre-Call Education Committee and is the Chair of the European Law Group. In this article — first published in the Inn’s Annual Review in 2023 — Margaret offers an insight into what its like working in the FCDO.

The Legal Directorate in the Foreign, Commonwealth and Development Office (FCDO) is the leading team in Government for international law. Lawyers, both barristers and solicitors, working in the FCDO have a wide range of expertise from diplomatic and foreign relations law to national security law, international humanitarian law, domestic and international human rights law, international criminal law, overseas territories law, international law of the sea, EU law, public law, commercial law, information law, development law, sanctions and trade law.

But what does a FCDO lawyer actually do? One of the differences between the employed and self-employed Bar is that it is not possible to divorce the working day of any given lawyer from the overall objectives of the Legal Directorate. The stated objectives of the FCDO’s Legal Directorate are to: help the government to govern well, within the rule of law, using our expertise and influence to promote the UK’s national interest and maintain our high reputation in these fields; work to shape an open international order, advancing the values of freedom, the rule of law, the integrity of sovereign States, justice and accountability; and work collaboratively with colleagues in the FCDO and across Whitehall to build knowledge of international and EU law and to share best practice on treaty-making.

In practice, this means that in recent times, for example, lawyers have advised on many aspects of the UK’s response to Russia’s invasion of Ukraine, including the use of force, sanctions, potential compensation mechanisms and accountability for international crimes. This specialist legal advice required expertise in public international law, domestic law (e.g. the 2018 Sanctions Act) and public law. Many novel ideas have been considered requiring out-of-the-box thinking and analysis, both domestically and with international partners. Lawyers in the Legal Directorate have also lately been closely involved in the negotiation of the Windsor Framework with the EU, the successful conclusion of UN negotiations for the new treaty on Biodiversity Beyond National Jurisdiction (BBNJ), the FCDO response to the COVID-19 inquiry and lots more.

FCDO lawyers do not advise in a vacuum, but rather work with policy teams in the relevant geographic or thematic department to help in the development of policy options to meet the desired foreign policy objective. This may involve working with lawyers and policy leads in other government departments, where the expertise on a particular issue lies outside the FCDO. It may also involve working with international partners (whether States and/or international organisations eg the EU or NATO) to understand how they propose to approach a particular issue and their legal base for action and to coordinate responses for maximum impact. Involvement in international negotiations, such as the Windsor Framework or the BBNJ negotiations, will mean direct contact with lawyers from other States and international organisations. Not only do our lawyers need to know the law better than anyone else in the room, but they also need to understand how this knowledge and expertise should best be deployed in conjunction with the rest of the UK team in order to further the UK’s foreign policy objectives.

I have worked at the FCDO for over 10 years, including a three-year posting to the UK Mission to the UN in Geneva. Here are some examples of what I have been involved in during my time.

In London-based roles:

  • Drafting a set of regulations creating a new sanctions regime to further a particular foreign policy aim, based in domestic legislation. Such regulations must be able to withstand parliamentary and judicial scrutiny.
  • Liaising with legal advisers from other likeminded States who are involved in the Antarctic Treaty System, in order to coordinate legal responses to those States who wish to undermine the System. One example where knowledge of the law is not sufficient, but rather needs to be combined with political awareness in order to agree a strategy which is most likely to be effective.
  • Talking through the UK extradition provisions with an Attorney-General of an overseas territory to understand to what extent they may read across to the territory. If the end result is unsatisfactory on either side, then consideration is needed as to how to remedy any gaps or resolve any issues and what exactly that would involve on both sides.

In a multilateral-based role:

  • Drafting speaking notes on a complex international human rights law legal issue to be used by the Ambassador in her interactions with her counterparts, seeking to persuade them to support a UK-sponsored UN resolution. This is an exercise in being precise, concise and persuasive all within the broader political context – what will be appropriate for a likeminded ally will not be appropriate for a middle-of-the-road undecided State.
  • Negotiating with hard-line States who misstate international law for their own political purposes. Judging exactly what to say to move the undecided States from supporting the hard-liners to supporting the UK position, in keeping with international law.

Varied? Undoubtedly. Challenging? You bet! Representing the UK on the international legal stage is the most privileged job I can imagine as a barrister.