Interview: Peter Fish
As director general of the Attorney General’s Office, Peter Fish plays a key role in the complex structure of top Whitehall lawyers. He tells Matthew O’Toole why his boss’s ancient role is still so important in the 21st century
The post of attorney general is one of the oldest in government – it dates from at least 1243 – but the department which supports the office is the smallest in Whitehall, with just 50 staff. What’s more, the work is highly pressured, and when it hits the headlines – as in the case of the legal advice given over the invasion of Iraq – it is rarely for positive reasons.
It’s good, then, that the civil servant who runs the petite but important Attorney General’s Office (AGO) – one of several law officers’ departments – appears to possess a calm, even temperament. Peter Fish (pictured above) spent nearly a decade working as a City lawyer before joining government; having risen to one of the most significant legal jobs in the civil service, how does he manage the ancient tensions which surround the somewhat constitutionally anomalous role of attorney general?
The attorney general, currently Baroness Scotland – the first woman and the first black person to do the job – is charged with providing rigorous legal advice to the government of the day on the legality of its policies. A long-standing rule known as the law officer’s convention precludes the AGO from confirming or denying that either the attorney or solicitor general – who effectively serves as the attorney’s deputy – have been consulted on a given policy. But Fish is eager to explain that the range of advice stretches far beyond the issues that reach the media.
“The legality of the war in Iraq is in the news at the moment,” he says. “ What you don’t hear about is all the other stuff that goes on. If you’re revising policy content, [you’re asking]: What is it the government is trying to do? Is it legal? And if it’s not legal, are there different ways it can achieve its policy?”
The Iraq effect
Since the war in Iraq is in the news – and, in particular, the role of then-attorney general Peter Goldsmith in advising the cabinet on the war’s legality – does Fish think that the controversy has damaged morale among those who offer legal advice to government?
“I don’t think it has, actually,” he says. “I think there’s a very strong sense of government lawyers doing the right thing. They’re supported by the [current] attorney general, as they were by the former attorney general [Goldsmith].” Alluding to media coverage of the testimony at the Chilcot enquiry of two former senior foreign office (FCO) lawyers, Michael Wood and Elizabeth Wilmshurst – both of whom disagreed with the opinion provided by Lord Goldsmith – Fish suggests that Wood’s disagreement, at least, was less profound than reported in parts of the media. He insists that former Wood, a former FCO chief legal adviser, agreed with “95 per cent” of Goldsmith’s opinion: “Michael Wood formed a view. He’s entitled to that view, but I think if you asked him he would say: ‘Ultimately, on something like this, it doesn’t matter what I think; what matters is what the attorney thinks’.”
It can hardly be a surprise that the chief official in the Attorney General’s Office should emphasise the primacy of the attorney personally in forming the government’s legal opinion – but Fish goes further. He argues that there is “a danger” in opening up legal advice to full public view. “There’s a sense that the public feel they have to know everything,” he says. “But actually government has to be able to take advice in confidence on legal issues. This issue [Iraq] is so important, people say: ‘Well, we need to see what happened in this case.’ Fine, that’s happening, but any government or company or individual should be entitled to take legal advice in confidence.”
At the heart of all these issues is the role of attorney general, which remains something of an anomaly after the decade of constitutional reform under Labour. The role goes beyond just legal advice, holding a “superintendency” function over various arms of the state with prosecuting powers (most notably the Crown Prosecution Service, the CPS) and the power to intervene with the Court of Appeal when the attorney thinks a sentence unduly lenient. Given that several recent constitutional reforms – the creation of the Supreme Court and the dramatic altering of the role of lord chancellor, for example – have sought to disentangle the parliamentary and judicial systems, there is a strong argument that the persistence of the politician/attorney general role is a serious anomaly.
However, a review just last month recommended no change. In a speech, Baroness Scotland said: “There is to be no change to the role of the attorney general, who will remain as chief legal adviser to the government, guardian of the public interest, and a government minister who is a senior lawyer. I [and] the government, make no apology for coming to this conclusion.”
To date, constitutional reforms have had a largely superficial effect on the attorney general’s role; the greatest impact has been caused by devolution. When the Scottish Parliament was founded, the role of advocate general for Scotland was created in the Scotland Office to act as a legal adviser to the UK government on issues affecting Scotland, while the existing Scottish post of lord advocate became the law officer for the devolved administration. Meanwhile, when the devolution of policing and justice is finally completed in Northern Ireland, the post of attorney general for Northern Ireland will return to the region (since the prorogation of the old Stormont Parliament in 1972, the role has been filled by the attorney general of England and Wales). Though developments in Northern Ireland will mean a “more restricted” role for the AGO, Fish admits the changes have not been dramatic. In England changes to the relationship between the government and judiciary, culminating in the creation of the Ministry of Justice, have required “some working through”, says Fish, but have impacted less on the Attorney General’s Office than other areas.
On the decision to leave the attorney general’s role virtually untouched, Fish says frankly that he’s “never seen any particular problem” with a minister acting as a legal adviser to government. He also defends the practice of having the attorney superintend the prosecution services. Since the CPS and other prosecuting bodies would need some kind of ministerial accountability, he says, isn’t it better that this comes from the government’s lawyer – who has “a degree of independence” – rather than a minister from a more political department? Like many aspects of the esoteric British constitution, the role involves a delicate balance of circumstance and convention, and any profound reform could lead to unintended constitutional consequences elsewhere. Fish seems confident of its soundness: “Having looked at the balance and safeguards of the role, people felt: ‘Actually, this isn’t something we can tinker around with.’ It’s a very important role, and it’s got the right balance.”
What’s more, he adds, complaints over political bias in the role of attorney general are not an entirely recent development. Lord Goldsmith was certainly criticised by the press over his decisions on Iraq, the controversial British-Saudi Al-Yamamah arms deal and the cash for honours fiasco in Tony Blair’s final days; but Fish says his predecessors had it tough too. “Patrick Hastings was the attorney general in the first Labour government in 1924, which fell because of allegations that he had stopped the prosecution of a communist paper,” he says. “So that tension is not new.”
Scouting for talent
Fish does, however, voice concern about the sustainability of another one of the unwritten rules: that the post is held by a senior lawyer – almost always a barrister, and usually a QC – who is also a member of one of the Houses of Parliament and of the governing party. As politics has become professionalised, people have been entering the Commons at a younger age and from a narrower set of professions, and few now have the kind of stellar legal career expected of the attorney general. The vast majority of attorneys general in the 20th century were elected MPs, but since 1999, Labour holders of the job have invariably been peers. “To get senior lawyers of that quality into the Commons is getting less common,” says Fish. “So what they did with Peter Goldsmith was bring him into the Lords [to do the job]. Now, I think that raises a question: where do you get your attorneys general in future?”
On the issue of recruitment, is it a challenge for the Attorney General’s Office to attract personnel when joining government will invariably mean a pay cut for top lawyers in the private sector? “I halved my pay when I joined, and I’m absolutely delighted that I did,” says Fish. He’d been working for a City firm doing highly lucrative commercial litigation, but says the diversity and profundity of the subjects dealt with by government lawyers mean that vacancies are always over-subscribed with talented applicants. “You could get quite senior in private practice and be doing a relatively mundane job, filling in a few blanks on a big commercial deal; whereas the degree of responsibility with quite young, junior lawyers [in government] is quite refreshing and challenging.”
The 50 lawyers in the AGO represent a tiny number of the 2,000 legal professionals in the civil service; doesn’t acting as a “superintendent” for much larger entities such as the CPS or the Serious Fraud Office present a logistical problem? The AGO doesn’t act as a day-to-day watchdog, Fish answers, but concentrates on high-level coordination; the attorney general, for example, appoints the chief inspector of the CPS, a job which Kent chief constable Mike Fuller will take up in April.
As well as superintending, the AGO also has to ensure smooth communication between prosecutors and Whitehall. “It’s not just making sure that prosecutors are doing the proper job, but making sure they are plugged into government policy,” he says. “So, for example, if the Home Office announces a new initiative on knife crime, ensuring that they are thinking about resources for the CPS.”
Given the breadth of its potential activities and the limitations on its resources, the department has to choose its battles, Fish admits. “We are a small department,” he says. “A challenge for me is how we add value; because we can’t be everything to everyone, and if we spread ourselves too thinly around the criminal justice system we just won’t do anything. So it’s about getting the right focus.”
The picture is complicated further by the relationship with the much larger Treasury Solicitors Department (TSol), which acts as something of a clearing house for legal services offered to different departments. Fish admits the set-up is “very confusing”: the Treasury Solicitor Paul Jenkins acts as accounting officer for the AGO (Jenkins is more senior than Fish, with permanent secretary rank) but also reports to the attorney general. “There’s sort of a double accountancy relationship; he reports to [Baroness Scotland] as the minister, but in terms of money I report to Paul Jenkins as the accounting officer,” Fish explains.
Given the complexity in the provision of government legal services – TSol provides a range of services, but many departments have sizeable legal teams of their own – does Fish agree with Paul Jenkins that the system is too “haphazard”? He certainly seems sympathetic to Jenkins’ concerns, noting that the system whereby some advice is provided by TSol lawyers and some by teams inside departments has “grown up” on an ad hoc basis. “You’ve got some departments with huge resources – 100 lawyers or more – and some with five or 10. How does that make sense? So I think there would be a case for saying; ‘Well, maybe you could rationalise that a bit more’.”
Lawyers and senior civil servants are famous for choosing their words carefully, and since Peter Fish is both, it’s not surprising that he treads deftly through the minefield of government legal issues. When I ask about the department’s reaction to the attorney general’s own legal difficulties (she was fined £5,000 for employing a Tongan woman who lacked the right documents), he gently insists that the issue is a “private matter” for Scotland. But such unexpected events are not new to the AGO, and are unlikely to go away whichever party provides the next attorney general – not that Fish is worried; in fact, he seems to relish the prospect. “I’ve been here since August, working with ministers on a daily basis on some of the most difficult legal issues,” he says. “This is one of the plum jobs.”
An attorney’s ascent
Graduates in Law and French from King’s College London
Joins Wilde-Sapt as a trainee solicitor, where he spends ten years – mostly on high court litigation in banking and commercial issues
Moves into the public sector as head of the company and commercial team at the Law Commission
Joins Lord Chancellor’s Department under Derry Irvine as deputy head of the legal advice and litigation division
Promoted to head of the division at Lord Chancellor’s Department, later to become the Department for Constitutional Affairs
Moves to Home Office as head of the border control, enforcement and support team
Becomes director of Cabinet Office Central Advisory Division at the Treasury Solicitor’s Department
Appointed director general of the Attorney General’s Office