After the resignation of Lord Havers as Lord Chancellor in 1987, the surprise appointment of Lord Mackay of Clashfern as his replacement was considered rather daring, and parts of the English system criticised the choice of a man who, as a Scottish advocate, was an outsider.
The story goes that one of the reasons for his appointment by Margaret Thatcher was that she once sought his advice, he refused to give any because it was a Sunday – and as a result he rose in her estimation.
At the time, Lord Mackay was described as someone driven more by a sense of duty than by personal ambition, a man of utmost principle in a politician's clothing.
A legal colleague and friend said: “He is not the kind of man who will give in to personal criticism. He is not the kind of man to make mistakes. He has a lawyer's dispassion. He is very much a lawyer's lawyer.”
But law was Mackay's second career. He studied mathematics and natural philosophy at Edinburgh University, and at the age of 21 went to lecture in maths at St Andrews and from there won a senior scholarship in maths to Trinity College Cambridge.
He was called to the Bar in 1955 and took silk 10 years later, becoming Sheriff Principal of Renfrew & Argyll from1972 to 1974. He went on to hold the highest legal posts in Scotland – Dean of the Faculty of Advocates from 1976 to 1979 and a member of the Scottish Law Commission at the same time. He was made Lord Advocate from 1979 to 1984 and saw through the reforms which brought in new powers of detention and judicial examination in the Criminal Justice (Scotland) Act.
Lord Mackay has always been seen as apolitical. The late John Smith told the tale that when James Mackay QC was Dean of the Faculty of Advocates and was appointed Lord Advocate by incoming Prime Minister Margaret Thatcher, Smith, then outgoing Labour trade secretary, went up to Mackay and said: “Congratulations, James, I didn't know you were a Tory.” Mackay replied: “Neither did I!”
Lord Mackay simply says: “It is entirely apocryphal, of course. John Smith knew my views perfectly well.” Another close legal associate says that shortly after Lord Mackay joined the Government, he was approached by the new appointee and asked in a confidential whisper: “How does one go about actually joining the Conservative Party?”
Opinions differ as to how radical a Lord Chancellor Lord Mackay has been.
The Legal Aid Bill came under attack in 1987 and Mackay was criticised as being appointed to bring in cost-cutting of the legal aid budget – translating the economics of the Thatcherite marketplace to the legal arena. And the Courts & Legal Services Act in 1990, with its proposals for extended rights of audience, is still a matter of contention for employed lawyers and those in the CPS. To the personal criticism that has come his way over such contentious issues, Mackay responded: “I have to bear that with such equanimity as I can muster. I doubt very much whether heat in the blood contributes to clarity of thought and real rational progress.”
Having stayed on after the 1992 election – some consider that having piloted reforms through Parliament, Mackay felt he should see them implemented – he led the reform of family law, commonhold, and the Royal Commission on Criminal Justice's proposals.
Toward the end of his tenure he came under attack again, this time for his family law proposals, and his decision on increased court fees was chall- enged in the courts.
Lord Mackay's decision to retire at the 1997 General Election ended the longest continuous service of a Lord Chanc-ellor, and he was the first lawyer with wholly Scottish experience to be appointed to the post. Tributes to him mention his achievements in matrimonial law, block legal aid funding, franchising and arbitration. Lord Woolf said: “There are so many things that he intended to do that the catalogue of things that he has achieved is quite extraordinary.”
In retirement Lord Mackay will remain a life peer, and he has already signalled his view that the House of Lords would be justified in challenging Labour's devolution plans for Scotland, so it is unlikely that the legal profession has heard the last of Lord Mackay of Clashfern.
As he said recently: “Every responsible member of the House of Lords would want to do his or her best to ensure that whatever the law was, it was as good as they could make it.”