"AN Ambassador is an honest man who is sent to lie abroad for the good of his country," a British Ambassador, Sir Henry Wotton, scribbled in an album at Augsburg. It was discovered by one of his enemies and reported to James I. Shocked, the king refused to employ Wotton again despite his plea that he had written the comment merely as a "merriment".
The vulgar impression about diplomats and lawyers as ones who lie in the course of duty is of course false. A diplomat or lawyer found making a statement false to his knowledge destroys his credibility. Both speak on instructions. Which is why John F. Kennedy was careful to exclude Adlai Stevensen, his Permanent Representative to the United Nations, from deliberations preceding the Bay of Pigs fiasco, though he had Cabinet status. This was to enable Stevenson to deny in the Security Council the Kennedy government's complicity in the affair on its instructions, without undermining the Permanent Representative's credibility.
A lawyer can return his brief if he finds the client to be lying to him. What should a diplomat, or for that matter any civil servant, do when he finds the government lying to Parliament and the nation? Clive Ponting, Assistant Secretary in the Ministry of Defence, blew the whistle over the sinking of the Argentinian warship, General Belgrano, during the Falklands war.
On December 20, 1956, Sir Donald Logan, private secretary to Foreign Secretary Selwyn Lloyd, heard from the Officers' Box in the Chamber of the House of Commons Prime Minister Anthony Eden assert: "There were no plans got together (with Israel) to attack Egypt..." during the Suez war. Logan was the only person from the British side to have attended both secret meetings at the villa in Sevres, in the suburbs of Paris where the protocol binding Britain, France and Israel to military action against Egypt was signed.
Peter Hennessy, an authority on the British Constitution and administration, later asked Logan: "Did you feel at all that you should have done what Clive Ponting in another generation did?" He replied: "In those days civil servants were not expected to betray their Ministers and I certainly did not feel this, no... I think the idea that a civil servant should get up and say 'the Minister is not telling the truth' any time that this is likely to happen is a recipe for chaos and certainly for disloyalty."
Other civil servants who served during the Suez crisis were less sure. The Economic Secretary to the Treasury, Sir Edward Boyle, resigned in protest at the Anglo-French-Israeli invasion of Egypt. So did Eden's press officer, William Clark, who was asked to give out that the Minister of State at the Foreign Office, Anthony Nutting, resigned not in protest but for private reasons.
Hennessy records: "Suez was the greatest professional trauma experienced by the British Civil Service before or since 1956. Yet discipline held. Nobody flouted the rules or spilled the beans. In its way it was a remarkable tribute to the ethos of the profession. Would it be the same today in identical circumstances? I doubt it. Most would bite their lips and think of England but not all - and it only takes one mouth to blow a whistle" (Peter Hennessy; Whitehall; Fontana, 1990, page 168).
Paul Gore-Booth, then a Deputy Secretary in the Foreign Office, wrote a round robin to the Permanent Under-Secretary, Sir Ivone Kirkpatrick, a hawk who encouraged Eden on November 2, 1956, three days after the air assault on Egyptian airfields: "I believe it to be only right to make you aware of the following. In the course of the week's business I have seen a lot of members of the Office of all ranks, and have been deeply impressed with the dismay caused throughout our ranks by HMG's action. People are doing their duty but with a heavy heart and a feeling that, whatever our motives, we have terribly damaged our reputation. I have not sought this opinion, but it is only honest to add that I myself, with my USA, U.N. and Asia background, have been appalled by what has been done - even granted the gravity and imminence of the Nasser menace" (ibid; page 166). Gore-Booth's career did not suffer. He was the British High Commissioner in New Delhi in the early 1960s and rose to be Head of the diplomatic service.
Hardly anyone in the Foreign Office understood the resurgence of Arab nationalism which Gamal Abdel Nasser had come to personify. "The Nasser menace" was conventional wisdom. Doubts centred on the practicality of the use of force to topple him after he nationalised the Suez Canal Company on July 26, on the legality of such action and on the ethics of collusion with France and Israel.
Whitehall and the Suez Crisis (Editors: Saul Kelly and Anthony Gorst; Frank Cass, London; 250 pages; 39.50, 16.50 paperback) should be prescribed as a textbook for trainees in the diplomatic service. Nothing like it has appeared before. On January 2, 1987, the Public Records Office opened its files on the Suez crisis. Drawing on archival disclosures and other unpublished material, each of the 12 essays provides the reader with a fairly accurate picture of doings in British embassies in Cairo, Paris, Washington, at the U.N. in New York and in the Foreign and Cabinet Offices. For good measure, we have detailed accounts of the clash between the Chief of the Imperial General Staff, the professional head of the Army, Sir Gerald Templer, and the First Sea Lord and Chief of Naval Staff, Admiral Earl Mountbatten, who dutifully prepared the plans for naval warfare, as the Prime Minister required of him, but left none in doubt that he was opposed to the venture.
On November 2, the day the U.N. General Assembly called for a ceasefire, Mountbatten wrote to Eden:
"It is not the business of a serving officer to question the political decisions of his government; and although I did not believe that a just and lasting settlement of any dispute could be worked out under a threat of military action, I did everything in my power to carry out your orders, as in duty bound, loyally and to the full, in working out the necessary naval preparations for building a position in which we could have negotiated from strength. Now, however the decisive step of armed intervention by the British has been taken; bombing has started and the assault convoy is on its way from Malta.
"I am writing to appeal to you to accept the resolution of the overwhelming majority of the United Nations to cease military operations, and to beg you to run back the assault convoy before it is too late..."
He had thought of resigning earlier but was warned that it was "unconstitutional" for a military officer to resign "on receiving orders for a military operation". But he asked for clear orders to stay on. On November 4, he wrote to Hailsham, the political chief of the Admiralty: "However repugnant the task, the Navy will carry out its orders. Nevertheless as its professional head I must register the strongest possible protest at this use of my service; and would ask you as the responsible Minister to convey that protest to the Prime Minister. I recognise that a serving officer cannot back his protest by resignation at a time like this, so I must ask you to handle this whole matter on behalf of the Navy. Bearing in mind all the implications, I must ask you after consulting the Prime Minister to give me the order to stay or to go."
High praise is due to the senior legal adviser to the Foreign Office, Sir Gerald Fitzmaurice. The essay on his role is of contemporary relevance. A government's "legal advisers" are its law officers who get inputs from the Law Ministry officials, not the politician who is Law Minister.
Eden ignored the rules and relied on the advice of the Lord Chancellor, Lord Kilmuir, a distinguished lawyer who, as Sir David Maxwell-Fyfe, was a prosecutor at the Nuremberg trials. The Lord Chancellor's Office seized upon a letter to The Times of August 11, 1956 from Prof. A. L. Goodhart of University College, Oxford. It cited texts with disgraceful disingenuity to conclude that a state "may use force to protect a vital national interest which has been imperilled." Fitzmaurice argued that however illegally Nasser may have acted, it did not justify "taking the law into one's own hands and acting as one's own policeman, judge and executioner." He warned: "Even if some 'incident' can be provoked, I am afraid that matters will by then have gone so far that no-one will credit its genuineness and it will appear mere pretext. Our preparations will have been such that we shall not be able to escape the charge of having launched a deliberate and prepared attack.
To the doctrine of use of force in the last resort, Fitzmaurice rejoined: "The last resort argument is only a valid one if you have a legal case for using force in the last resort. Otherwise, it avails nothing, and only serves to bring out the fact that you are not prepared to give up your objective even if it means, in the last resort, using force to obtain it. In short, you postpone your aggression as long as possible, but you are ready to commit it if necessary."
He took the war into the Lord Chancellor's Office and wrote to the senior legal adviser there, Sir George Coldstream, no doubt for Kilmuir's edification. "The Lord Chancellor will know from his recollections of the Nuremberg Tribunal within what very narrow limits the doctrine of necessity affords a legal justification for the use of force... we do not seem to have anything approaching the sort of case which would bring us within the doctrine of necessity... All this seems to me to build up not merely to the absence of a legal case... but also, which is much worse, to an exceedingly bad moral position, or at least one that will be so regarded by a very large section of world opinion... In their present mood, HM Government may think that they do not much mind about general opinion. But will they still feel the same after the event, when it may be too late."
It was unlikely to move Kilmuir who, as early as July 31, considered Fitzmaurice's views as being "to the country's disadvantage". Eden had no time for him either. "Fitz is the last person I want consulted. The lawyers are always against doing anything. For God's sake, keep them out of it. It is a political affair." The Attorney-General, Sir Reginald Mannigham-Buller (affectionately called "Reginald Bullying-Manner") gave the following opinion with regard to Nasser's seizure of the Canal Company's property: "We do not think that the use of that force would now justify the use of force by us."
Fitzmaurice was not content to record his objections and leave it at that. He persisted in pressing his views in the sharpest terms. "The doctrine that interests, even vital interests, in another country, confers a right of armed intervention there, is precisely the doctrine which the United Nations Charter was intended to negative."
Even now, nearly half a century later, this pernicious doctrine persists among all who can use force and get away with it.
A Foreign Office wire to the Ambassador in Amman cited in support of the governments' policy advice "on the highest legal authority that they are entitled under the (U.N.) Charter to take every measure open to them within and without the U.N. to stop the fighting..." Fitzmaurice sharply pointed out that "the highest legal authority normally meant the Law Officers of the Crown, the Attorney-General and the Solicitor-General, who constitutionally have the ultimate, and sole ultimate responsibility as legal advisers to the Crown and hence to the government of the day. As of 1 November 1956, the highest legal authority had not been consulted."
In a note to Kirkpatrick on November 5, Fitzmaurice wrote: "Although our action in Egypt may happen to be in accordance with your (Kirkpatrick's) views and policies, the way in which the matter has been handled on the legal side, with the regular legal channels of advice by-passed and the government acting on private advice from the Lord Chancellor without the legal advisers here or the Law Officers even knowing what advice is being given, is, on any normal and long-term view, detrimental to the proper functioning of the Foreign Office."
The Lord Chancellor did not sit in the Cabinet as a Law Officer of the Crown, or as a general adviser to the government, but as the head of the judiciary and the ministerial head of the department which ran the administrative aspect of the machinery of justice and the officer who presided over the House of Lords. Whereas the government had a perfect right to ask for legal advice from any quarter it wished, it could not constitutionally assert that it had acted on legal advice from the highest quarter as "the Lord Chancellor is not higher than the Law Officers".
Fitzmaurice's notes are quoted here in extenso advisedly for they provide a classic statement of a lawyer's duty to render legal opinion candidly uninfluenced by political considerations. Fitzmaurice rose to be a judge of the International Court of Justice where he served from 1961 to 1973. He also authored several substantial works on international law.
Eden and Selwyn Lloyd visited Paris on October 16 following Eden's talks at Chequers with a French Minister two days earlier. The British Ambassador in Paris, Sir Gladwyn Jebb, was excluded from the discussions. He lost no time in writing a protest note to the Foreign Secretary in language which defies improvement: "I do not complain, but it is, I believe, a novel arrangement for diplomatic business of the highest importance to be conducted by the Principals without any official being present, even to take a note. I am sure that you feel that this is good method of proceeding, and anyhow it is for you to say. But however great the advantages of the new system, it has one very considerable disadvantage so far as your representative on the spot is concerned. This is that, although he has to live with one of the Principals and has to continue negotiations with him in his absence of his own Principal, he has no means, apart from a few remarks which the latter may let fall of knowing what actually happened when the Principals met."
Duplicity can never be separated from its farcical aspect. Patrick Dean, an Assistant Under Secretary at the Foreign Office, was asked to fix the deal at Sevres on October 22. "At the end of the meeting the French produced a record of the week's discussions which Dean was invited to sign - this was the now notorious Sevres Protocol. Dean sought Logan's opinion as to whether to sign the document and Logan could see no reason not to do so since it was an accurate account of the meeting... Dean therefore signed the document ad referendum, i.e., to be further considered, which seemed to both men as completely without prejudice. The British team then returned to London and at about 10-30 p.m. Dean reported to Eden and handed to him the British copy of the document. Eden was clearly surprised and irritated at the existence of the document. As a consequence, the next day Dean and Logan found themselves ordered once more by military aircraft to Paris with instructions to seek the destruction of all copies of the document. They failed to achieve their objective primarily because the French saw no need to comply with the request, and also because the Israelis had already left with their copy. Four days later, 29 October, the Israelis launched their attack." In October 1996, the three governments finally agreed to publish that sordid accord.
Kirkpatrick subverted procedures in the Foreign Office only to find that another favourite, Dean, had replaced him in the master's affections. As the editors sum up, "the only officials Eden was prepared to trust were those who backed his policy or who, like Brook, he had to rely on because of their special position in the hierarchy. Nonetheless it is also quite clear that such behaviour did not lead to efficient policy-making, and those who complain about the iniquities of civil service influence over elected politicians need also to consider the dangers of those politicians by-passing established lines of Whitehall policy-making and ignoring the advice of experienced, permanent, professional officials."
Three factors drove Eden to pursue his ruinous course - hubris; hate ("the Soviet menace") and its "agent" Nasser; and false analogy ("Munich").
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