Making the ascent

Sir Daniel Bethlehem QC shares his route from Bar basecamp to all-round public international lawyer with Anthony Inglese

‘It’s helpful when teaching public international law to have what’s been called ‘the smell of gunpowder on your clothes’. 

Real world experience. The students recognise and value it,’ says Sir Daniel Bethlehem KCMG QC, all-round international lawyer. A private practitioner, an academic, and later enjoying a distinguished spell as the Legal Adviser to the Foreign and Commonwealth Office (FCO), he returned to chambers at 20 Essex Street, where there is now, he is pleased to say, ‘a bigger community of younger lawyers, more involved in the life of chambers and its public international law’.

‘Advising in the heart of the British government on vital international issues, having pastoral responsibility for a team of 80 people, including their work, welfare and development – that was when I realised I was an adult!’ reveals Sir Daniel.

I ask whether the gunpowder observation works the other way around? ‘Oh yes. An FCO lawyer advises on various bits of international law, but an academic explores the whole subject in the round, sees it in strategic terms.’

Born in London, Sir Daniel’s parents moved to South Africa when he was three: ‘I was educated there, studying politics and international relations at Witwatersrand for my BA. I wasn’t terribly interested in law then – it’s not an undergraduate subject – but I took a course in public international law under John Dugard. He opened my eyes. An apartheid critic, he was in the forefront of the legal community. I saw international law as a standard by which we ought to judge ourselves.’

Sir Daniel returned to the UK aged 22 for his law degree at Bristol. ‘I then became an investment banker, knowing all the while that my real interest was international law.’ That said, ‘my City experience was formative. It gave me an appreciation of the economy and financial markets: the Big Bang; the crash of ’86; you could sit in a trading room and watch the screens go red as the markets fell. Communications were in shorthand, on screen, not given deferentially in Instructions tied up in red or white ribbon.’ He enjoyed the rapid pace of working, which stood him in good stead for the ‘sometimes febrile’ world of the FCO.

While working in the City he passed his Bar exams, getting up daily at 4am for two hours of study. ‘I then had to think seriously about abandoning my financial security to become an impoverished barrister. Moreover, I wanted to focus on international law rather than on whatever chambers could get for me. My transition into international law came from studying it for the LLM in Cambridge and teaching it on Saturdays at the then Holborn Law Tutors, plus some consultancy work on EU law for my old City employer.’

When Sir Daniel joined chambers in 1990, ‘the practice of international law wasn’t like today. Virtually everyone doing it had a foothold in a university.’ His practice had a slow start, made slower by his decision not to build on his EU experience. But then he got a job teaching at the LSE alongside Rosalyn Higgins (later President of the International Court of Justice). ‘I taught World Trade Organisation law – I must be one of the few lawyers in the country who can say that! And then Eli Lauterpacht, my mentor at Cambridge, invited me to be his junior advising Israel on the delimitation of the Israel-Jordan boundary as part of the negotiation that led to the Peace Treaty of 1994. Ros Higgins also recommended me for the UK team in the Lockerbie case against Libya, and my practice took off.’

His academic side flourished further when he joined the Lauterpacht Centre in Cambridge, becoming Director there in 2003, ‘a unique institution for research and study into public international law worldwide. A marvellous physical space – a vibrant place for scholarship and publication.’

He took Silk and would have been happy developing his mixed practice, but then an opportunity came along making his career unique. ‘In autumn 2005 there was an advert – for the first time ever the job of FCO Legal Adviser was being put out to competition. I thought it was a fig leaf to cover an internal appointment, so I didn’t apply, but the head hunters persisted. I reflected during my five-week holiday over Christmas – a 300-mile trek to Everest Base Camp – and applied.’

There then follows a master class in ‘how not to do it’. ‘I arrived at the FCO for my interview ten minutes early. I sat down and reread the letter of invitation and for the first time saw the words ‘please come prepared to give a five-minute presentation on a topic of interest’! I hastily scribbled down some bullet points – I can’t remember what – but fortunately I passed scrutiny and began the job in May 2006.’

Leading the FCO legal advisers was a ‘huge and unexpected’ privilege. ‘I saw my team as family and had real warmth and the highest regard for them; also for the FCO policy people and colleagues across government and abroad. If there’s one thing I miss it’s the people.’

A disproportionately large amount of his time at the FCO was spent ‘giving legal advice, on nuts and bolts public international law: issues ranging from UN law to human rights, the use of force, plus some very specific challenges such as Guantanamo Bay, Binyamin Mohamed, national security issues and more. It took me a while to begin to feel comfortable with the rhythm of the office. Drawing on my earlier City experience, I relished the immediacy of the work (“we’re going into a meeting, can you advise us what to say?”) and finding ways through (“no, you can’t do that, it’s illegal, but how about doing this…?”)’

Sir Daniel cites the work of Malcolm Gladwell about the intuitive decision-making of experts. ‘It’s called ‘Blink’. Trust your instinct. Of course, you have to put in 10,000 hours of work over your career before you get to that point! It took me a long time to trust my instincts but I found I did in the FCO.’

What makes a good FCO lawyer? ‘Students may say: a very good international lawyer. But before you ever get to give legal advice you need to be present in the room when the advice is required. You need situational awareness, the trust and confidence of your principals. Then you give the advice. I disliked referring to internal people as ‘clients’. This suggested a space between lawyers and policy implementers, and that lawyers would be consulted only when needed. I worked with four foreign secretaries, labour and conservative; I was determined we would be a voice round the table, part of the policy process.’

He gives the example of counter terrorism work. ‘In advising on military targets, it is not just a matter of lawyers saying this target is lawful, but it is also important to advise, if it is the case, that they see that the risks of escalation as too great. Are we moving the starting point for the next strike? Are we stumbling into the next war? It is incumbent on lawyers to see around corners.’

His approach to advocacy is ‘all about a narrative’. ‘If you can see the narrative it’s stimulating to present it. This approach works better in international proceedings. My cases are complex and require more of a narrative. In the English courts there is more of an exchange between bench and counsel.’

Half of Sir Daniel’s practice consists of representing governments in international and domestic courts, leading junior counsel in his and other chambers. For the other half he sits as an arbitrator, often in cases of bilateral investment treaties. ‘Arbitrating is interesting. It’s more difficult than being a counsel – you need a sense of balance and of how to reason out your ultimate decision.’ So is the next stage to be a judge in an international court? ‘I like my current diverse work. I’m not temperamentally inclined to take on a single full-time role.’

His advice to students is to be patient: ‘Don’t rush. When starting out, barristers should first aim to develop as generalists, avoiding narrowing their focus to become specialists too early. Second, change is stimulating – be ready to seize the moment for change during your career. Third, remember that in chambers it is more often that the cases you get ‘make the lawyer’ rather than ‘the lawyer making the cases’. Barristers starting out tend to take all the work that is fed to them and it’s easy then to become expert in what you get. If, however, you want to be a practitioner in public international law, you need to make the practice. Take opportunities, develop your expertise by teaching, taking internships – it’s an area of high specialism. You need to do your 10,000 hours.’

Contributor Anthony Inglese CB

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Anthony Inglese

Anthony was head of legal in five Government Legal Departments over a 38-year career, most recently as General Counsel and Solicitor to HM Revenue & Customs. A Bencher of Gray’s Inn, he now trains and mentors lawyers.