As a young man James Mackay studied mathematics before deciding to pursue a career in law. From the outset he set his sights on success at the Scottish Bar. He practised as an Advocate from 1955, becoming a QC in 1965 and was Dean of the Faculty of Advocates before being appointed Lord Advocate in 1979. Judicial office in Scotland in 1984 was followed within a year by his appointment as a Lord of Appeal in Ordinary of the House of Lords, then the UK’s highest court of appeal. An already distinguished career was to become unique when, in 1987, Prime Minister Margaret Thatcher invited Lord Mackay to become Lord Chancellor of Great Britain and he was to become the longest continuously serving Lord Chancellor in the 20th century. Many other honours have followed, including his appointment as a Knight of the Thistle in 1999. In 2007 he was appointed Lord Clerk Register and ex officio Keeper of the Signet. With typical modesty and lack of ceremony, Lord Mackay kindly agreed to talk about his life and career.
Robert Pirrie – James, it is five years since you became Keeper of the Signet by virtue of being appointed to one of Scotland’s most ancient offices of state, Lord Clerk Register. You have been a very engaged Keeper for us and, as people always say to me, you’re very approachable and a great figurehead for the Society. What does the position mean to you?
Lord Mackay – Well, it’s a terrific privilege to be an Officer of State in Scotland with no executive role at all except in relation to admission of Writers to the Signet. On the other hand, it is an important position in the profession in Scotland and I’ve been very devoted for many years to the profession in Scotland and all its interests and when I was invited to take this appointment I was very delighted and honoured to do so. And it gives me great pleasure to come and meet the young people who want to join the profession. I’m glad to see that there are still people who want to do that, and the Writers to the Signet is a very special body of professional people in Scotland and I think they do a great deal to maintain the high standards of the legal profession in Scotland. I am very much in support of that and therefore very willing to come and be involved in anything that I can be that promotes the profession and in particular, of course, the Writers to the Signet.
I have many memories of this building and indeed of this very room. Where we are sitting now [the Commissioners’ Room in the Signet Library] is where I often appeared in arbitration. Some I remember extremely well and it’s a great chapter of very interesting work.
RP – Do you remember any colourful occasions here?
Lord Mackay – There’s one arbitration that sticks in my mind that we had here where Millers, who were instructing me a lot, had put up buildings in Clydebank that leaked, and, of course, there were difficulties about that as you can imagine. They had balconies that leaked and the designers were being invited to contribute their views to this. When I looked at the way in which the balcony linings were put on it seemed to me inevitable that they would leak because it was folded up at the corner where three faces were meeting. In that little point in the corner there was bound to be vulnerability.
Ultimately we won that arbitration, and the other arbitration that really sticks very much in mind again was for Millers but it was in the Royal Faculty of Procurators’ building in Glasgow. I remember looking out at the façade of the Stock Exchange, I think they were changing the inside and keeping the façade or something. That was a case about a company from London who had required Millers to build or alter an aircraft factory in Clydebank. The other side were claiming against us and we had a counter claim, if I remember rightly. They produced a gentleman who had looked at the claim and he had valued the claim and he was produced for the opposition so I said to him, what was your value of the claim? Oh, you can’t ask that, I can’t answer that. Why not? Why not? I mean it’s pretty relevant to the deal that we’re dealing with, if you’ve got a view of it, I imagine the arbiter would like to hear it. And, of course, the arbiter did want to hear it, and he asked the chap to answer the question and the chap gave the figure, and, well, I mean they hadn’t much of a case after that! That was just an example of what can happen in arbitration.
And that case went to the House of Lords because there was a question as to what was the proper law of the contract and also what was the proper law of the arbitration. And I had to make good the proposition that the proper law of the arbitration could be different from the proper law of the contract. They argued that the proper law of the contract was Scots because it was the system of law closest to the performance of the contract. There was a split amongst the Law Lords about that. Lord Reid and Lord Wilberforce were in favour of Scotland as the proper law. The other two Law Lords were against it and Lord Guest said that he was of the opinion with the majority of their Lordships that it should be England. So the proper law of the contract was decided to be English law by a majority but all five however held that the proper law of the arbitration was Scottish and therefore the remedies that you could have would be Scottish remedies and there was no appeal to the Court in those days from a Scottish arbitration. So we succeeded and that became quite an important case. I think it’s in 1970 appeal cases or something like that. [Whitworth Street Estates (Manchester) Limited v. James Miller & Partners Limited  AC 572.]
RP – Of course, you didn’t start your studies in law, which a lot of people will not realise.
Lord Mackay – No, I began my studies at school and in university in mathematics and I took a degree and graduated at Edinburgh and then I taught for two years as a lecturer at St Andrew’s. At that time you weren’t allowed to move straight on and so I was invited to take an appointment at St Andrew’s which I did for two years and then I went to Trinity in Cambridge and I took a degree in maths there. When there I met Michael Atiyah [Sir Michael Atiyah whose undergraduate and postgraduate works took place at Trinity College from 1949-1955] who is one of the leading mathematicians of his generation in the world, the winner of the prize for mathematics that’s equivalent to the Nobel Prize in other disciplines [the Abel Prize often described as “the mathematician’s Nobel Prize”, awarded to Sir Michael Atiyah in 2004 for the Atiyah-Singer theorum]. And he was a good friend of mine, but when I saw his capabilities I realised that my role wasn’t in academic mathematics for the rest of my life.
My mother had passed away and my father was here [in Edinburgh] on his own and I had done all the mathematics that Edinburgh University had to offer in the ordinary course of events, and so I came back and thought I’d like to do law and never regretted that decision.
RP – You mentioned your father and you were born and educated in Edinburgh. Had your father come down from the Highlands?
Lord Mackay – Yes, in as far as I was educated it was in Edinburgh [at George Heriot’s School]. My father was born and brought up in Clashfern in Sutherland, between Scourie and Laxford, that’s in the North West of Sutherland and he came down to Edinburgh as a young man to seek work. And he worked here in different capacities, including ultimately on the railway at Balerno. And he didn’t enjoy good health. He had a spell in hospital down in Comely Bank, the Royal Victoria I think you’d call it. He had a spell there, he didn’t have good health. But he was a very fine person and very interested in church and theology. A great reader of second hand books, and a reader in second hand bookshops and purchaser of their wares, mostly in biography and church people and so on and also in theological books.
And my mother was a widow in Thurso and she came down to Edinburgh – I think it was 1917 or something like that. She’d lost her first husband very suddenly in Thurso. He was in business there and he just went out at lunchtime and came home dead. So it was quite a shock to her. She was quite a young wife at that time but by then she had met my father and they got married in 1921 and after some considerable time I came along, the only child, in 1927. [Lord Mackay was born on 2 July 1927.] When I went to the House of Lords my surname being Mackay, you couldn’t call yourself the Lord Mackay because the chief of the Scottish clan retains that. There is a Lord Mackay – Hugh Mackay [14th Lord Reay, Baron Mackay] is the chief of the Clan Mackay, and one of his titles is Lord Mackay. So I had to look for some title connected with some place or other and I thought of Clashfern. It was in honour of my father really. He’d passed away, of course, some considerable time before that. But there were some of his relatives still alive at that time and they were absolutely delighted. And it’s nice, I think it’s a nice name. It’s easy to spell, and also fairly easy to pronounce. I think it’s quite a good choice, and I’m often asked, is it the only Clashfern in Scotland? I met somebody in a restaurant one day and he said to me, which Clashfern is it you are? And I said all of them! And he said there’s a Clashfern somewhere near Fort William where he came from. So there’ll be more than one like most places, they’re not unique by their name.
It’s really quite interesting that connection with Clashfern. And of course my letters patent when I was made a Life Peer in 1979 refer to Eddrachillis which is the Parish in which Clashfern is located in the County of Sutherland. And the County of Sutherland is the smallest county in the United Kingdom, I think, so far as population is concerned, not for size, but population.
And it’s most interesting to me that my successor as Lord Chancellor was Lord Irvine of Lairg [Derry Irvine, who was born in Inverness, appointed as successor to Lord Mackay as Lord Chancellor in 1997 following Tony Blair’s Labour election victory]. And his letters patent also were connected with the County of Sutherland. And his middle name is Mackay as well. He’s Alexander Andrew Mackay Irvine. So he’s got Mackay in the middle of his name as well. It’s quite extraordinary but there we are. It’s a bit of a coincidence.
RP – So you obviously have this connection with the Highlands. How do you think that has informed your outlook? How would you say...?
Lord Mackay – Well, you know, Robert, although I was born and brought up in Edinburgh, we went a lot to the North, to the Highlands. Actually my mother’s brother had a small farm in Caithness and he had seven children and his wife passed away leaving one of them extremely young. And my mother and father being more or less free from any responsibility by that time went up a lot there. We went at school holidays, that sort of thing. And, of course, before, right before I was in school I was up there, and it was great, it was valuable to me to have company of my own age. Most of them were older than me. And so I was very connected with Caithness and Sutherland all my life really.
RP – Going back to your legal career. You were at the Scottish Bar obviously, starting in the 1950s?
Lord Mackay – I became an Advocate in 1955.
RP – So you practised at the Bar in the 50s, 60s and 70s until your appointment as Lord Advocate [in 1979]. What’s your memory of practising at the Bar at that time?
Lord Mackay – Well, there was nothing like so many people as there are at the Bar now. Nothing like it. But, of course, there wasn’t so much litigation, at least generally speaking. When I was called in July 1955, I was called by myself. There was nobody else. I had devilled [trained as an Advocate] for Bertie Grieve who became Lord Grieve and he was in the same group as Lord Emslie who became the Lord President. I was also friendly with Alistair Johnston [later Lord Dunpark]. And so I was introduced to a pretty busy group of Advocates and I found myself getting involved in their work quite a bit. And then when they took Silk as they gradually did their practices tended to come to me in quite a large number.
So I became really pretty busy as a junior. And pretty hard work. I always tried to give everything I could do, in the sense of doing your work properly and trying to be ready and so on. And I had the advantage of having been at Shepherd & Wedderburn as a law student. In these days you could go to the Bar just like that if you wanted to. But I didn’t feel that that was wise. I had to do the three year course on law in Edinburgh University. So I managed to get a position as a sort of law student, not an apprentice, at Shepherd & Wedderburn. I didn’t become an apprentice because I wanted to burn my boats really. I didn’t want to have the option of being a solicitor still. You know, I thought that would be unwise. I just had to make a success of it, you know. And I think that’s good that way. One of the things I think about education today is that children coming up to that sort of stage have so many choices that it’s very difficult to make a choice and stick to it. And once you’ve chosen, if you start looking at the others, it damages your drive in what you’re doing. So anyway that was my theory. So I was with Shepherd & Wedderburn. Ivor Guild was the head of the Court Department when I went there. He was a Writer to the Signet, of course. The head of Shepherd & Wedderburn then was Sir Ernest Wedderburn who was Deputy Keeper of the Signet. So I was early introduced to the Writers to the Signet. And that helped me too. They didn’t have a terrific amount of litigation work at that time. They had some but not a terrific amount. But they did give me some cases and I cut my teeth on some of these.
One of the earliest debates I remember was a case where somebody had fallen out about an oil drill or something of the kind. And it came up for debate and Robert Howat McDonald [later Lord McDonald] was on the other side. He was a good bit senior to me at the Bar. He was on the other side. And I don’t know, it’s hard to recall these things fully, but once I got going… I mean I was pretty shy I think it would be fair to say. I think people would have thought of me as quite shy. Maybe not, but I thought I was pretty shy. I never took part in debating clubs and things, societies. I was a member of the Speculative Society but I didn’t take very much part in it, to the sort of minimum, because it wasn’t in my blood, a debater of that sort of sense. But when it got to the law, debating the law, that was rather different and I just had a terrific time. And Lord Hill Watson entered the spirit of it and he questioned me and, looking back, he gave me a really superb time. It gave me a sort of confidence in legal argument and in carving it out that I wouldn’t have thought of before. So it was a great start from a very generous man, Lord Hill Watson. Incidentally, I was once at a meeting where Jock Cameron [Lord Cameron] was there. He was introducing Lord Hill Watson to make a speech and he told us that Lord Hill Watson is a good judge. A very good judge. He said, you don’t need to tell him the same thing seven times over before he understands it. He said, no, with him five times is quite enough. Well that was Lord Hill Watson. I owe him a terrific debt, really.
RP – What was the Bench like? Were they sometimes quite ferocious?
Lord Mackay – Oh yes. I don’t think I’ll mention the name of one but Bett [Lady Mackay] used to say if I was going to appear before him I couldn’t take my breakfast. He was very friendly to me after it, but he was frightening and he had to have everything absolutely right, he was ready to pick on anything. He did it in a way that made you feel slightly stupid. And it wasn’t difficult to do that for me anyway. I got to know him very well latterly. But when I was a junior at first he was rather a formidable character. There were other formidable characters later but that was, that was early on.
And I had some very interesting cases as a senior too. I was in the Argyll divorce case as a junior to George Emslie. [In 1963 the 11th Duke of Argyll divorced Margaret Campbell, Duchess of Argyll, is a case that made headlines and scandalise high society.] I also acted for the Duke in the case that the Duchess brought against him which he gave up at the last minute. So I got some insight into family law as well, and did a lot of other divorces as well. But that was the lead, that was the main one. That got us to the House of Lords as well, on a question about confidentiality.
RP – And your career at the Bar ultimately culminated in your being appointed Lord Advocate.
Lord Mackay – That’s right. I had also been the Sheriff Principal of Renfrew and Argyll from 1972 and then that finished when they decided to make the Sheriff Principal full time. Then I was approached to become a part-time member of the Scottish Law Commission. And I was also the Vice Dean of the Faculty of Advocates by that time. And then I was elected Dean of the Faculty at the end of 1976. And in fact I was Dean until I became the Lord Advocate in 1979.
RP – And did your appointment as Lord Advocate come as a surprise to you?
Lord Mackay – It certainly was. An extraordinary surprise. I’d never been in politics of any kind whatsoever. I’d never seen myself anything to do with politics at all. And it was really a very odd thing. But one of my colleagues was down in Marks & Spencer on a Friday. Bett [Lady Mackay] and I were in Marks & Spencer for some reason or other. And he said to me, James, I hear that you’re going to be Lord Advocate, I said, what? He said, yes. I said, I would rather they had told me by this time. I was at home on Monday morning and I got a message from Downing Street to say that the Prime Minister would like to speak to me. So needless to say I made myself available and she [Margaret Thatcher] spoke to me and she asked me if I would become Lord Advocate. And I said, well, Nicky Fairburn is QC and he is a Member of Parliament. Yes, she said, but, if you would become the Lord Advocate, he would become the Solicitor General. So I said, well in that case I can’t refuse that appointment. Perhaps I should have thought for a minute because the drop in income was not insignificant! As the Dean of the Faculty I was much in demand.
RP – And how would you say things changed for you once you became Lord Advocate and part of the political world?
Lord Mackay – I think it was very good for me. I was introduced to the world of politics and to the matters of the press and so on and introduced to it fairly gently because I was fairly junior in the political hierarchy, the Lord Advocate, although a senior minister in Scotland, second to the Secretary of State for Scotland, is not much in England. Except that the Attorney General, who was Sir Michael Havers at that time [subsequently Lord Havers and Lord Mackay’s predecessor as Lord Chancellor of Great Britain], took an interest in me and he told me it was his suggestion to the Prime Minister that I should become Lord Advocate because he’d met me when he’d come up to Scotland some time before the election. I worked a lot with Sir Michael and he used to nominate me for doing English cases in the House of Lords and that was an extraordinary experience and I maintained my position as an Advocate quite a bit even after being the Lord Advocate. And I also appeared from time to time for the Crown in Scotland as well, including some planning decisions, that sort of thing. So I continued to be an Advocate really until I became a judge in 1984. [Lord Mackay’s appointment as a judge of the Court of Session in Scotland was followed in 1985 by his appointment as a Lord of Appeal in Ordinary (“Law Lord”) of the House of Lords which was the highest appellate court in the UK prior to its replacement with the Supreme Court of the UK.]
RP – And life changed again...
Lord Mackay – Yes it did. Immediately, to be a judge in Scotland was interesting. At first, because I had been Lord Advocate, I couldn’t do criminal work, but I think it was six months or something then I became a criminal judge as well. I did quite a few criminal cases too. Then I was appointed to the House of Lords and there’s a good story about that. I treasure it, because it’s about real people. I was sitting in Glasgow, in the High Court, a criminal trial, and I was coming home from court in the afternoon walking up Argyll Street. That morning’s papers had my appointment and, as I recall, there was a big photograph in the Daily Record. Coming home up Argyll Street these two chaps were sitting on a seat and as I passed one of them said, “Lord Mackay”. So I came over to him and he said, “We see you got a wee bit of promotion – we were all very pleased”. I didn’t know for whom he was speaking! Anyway, I thanked him kindly then went on. There was something about that that really stirred my heart a bit.
When I was invited to become a Lord of Appeal in Ordinary, I had been asked by the Lord Advocate, Kenny Cameron, whether I would be willing to accept the appointment. Having considered it, I said, yes, I would. I heard nothing until I got a letter from the Appointments Secretary at the Cabinet Office to say that Mrs Thatcher had sent me a letter a month before and she was wondering why I hadn’t answered! I had never received the letter! Whatever happened to it nobody knows. But anyway...
Robert Pirrie – You were appointed as a Lord of Appeal in the House of Lords in 1985...
Lord Mackay – Yes and I was delighted. I had always thought that the House of Lords was a great tribunal and, of course, I had appeared before that court on a number of occasions. It had a commanding presence. The very first case in which I acted in the House of Lords was heard in the chamber itself. Lord Reid was in the chair and he was sceptical about my argument at first: “Are you going to argue that?” It was not a great start. But I found the adrenalin and in the end I argued all day. There was something in my nature that responded to the challenge of questions like that. In any event my argument was not entirely thrown out – but we did not win the case.
RP – You were a Lord of Appeal for two years and then...
Lord Mackay – It was a Monday and I was sitting as a Lord of Appeal in the House of Lords committee room upstairs and, after the committee had risen, there was a debate about – as I recall – extradition. I was sitting on one of the benches listening to the debate and I received a message from the Leader of the House’s Private Secretary to say that the Prime Minister wished to see me as urgently as possible and could I come over to the telephone to speak to her Private Secretary. I phoned over and he said to me, yes, please come over at 4.30 pm. This was at about 4.15 pm. I had no idea what this was about and I thought it might refer to an enquiry or something of that sort which the Prime Minister wanted me to take on. Anyway, just after 4.30 pm I was met at the door of number 10. I was taken up the back stairs because there were Cabinet Ministers about. Mrs Thatcher was upstairs. She asked me to take a seat. Mrs Thatcher said that Sir Michael Havers had resigned as Lord Chancellor that afternoon on the grounds of ill health [having only been appointed four months previously in March 1987] and that “we” want you to become Lord Chancellor. I cannot remember my exact words – I was too thunderstruck – but I did say it was a great honour. Mrs Thatcher said that “we” would like you to do it. I noticed the plural and I took it that she was acting with others but, anyway, that is what she said. I said, “As you know better than I, Prime Minister, when you are appointed to an office of that standing it affects your family as well as yourself and I would like to ask my wife before I give you my final answer”. “Certainly”, Mrs Thatcher said, “here’s the telephone...” With Mrs Thatcher across from me, I lifted the telephone and gave the number to the operator at number 10 and was put through to our Edinburgh flat. There was no answer. Bett was not there. I told Mrs Thatcher who asked when Bett would be back. I said, “I’m sorry, Prime Minister, but I don’t know”.
Mrs Thatcher asked to be informed as soon as I had spoken to Bett because, she said, “we would like to have the announcement on the 7 o’clock evening news”. So, as you can imagine, on returning to the Lords, I kept phoning and phoning. Eventually Bett answered. I explained what was happening and we agreed that, as Bett put it, “I don’t think you can refuse”. We were in agreement so I phoned the Private Secretary who insisted on putting the call through to the Prime Minister. I told her that I had spoken with Bett and that I would be delighted to take the appointment. Mrs Thatcher thanked me and said the announcement would be on the 7 o’clock news – and, indeed, so it was. It was quite a day, I can tell you! The strange thing is that, although I knew Michael Havers had been in hospital, I had seen him the previous week and he had said, “I’m fine, I’m just grand, you know, back to work”. That was the previous week. I never learned the full story, but that is how events turned out. [Sir Michael Havers QC was appointed Lord Chancellor in June 1987, becoming a life peer as Baron Havers of Edmundsbury, but was forced to resign due to ill health in October 1987.]
There is another aspect about this particular matter that I rather cherish. A dinner had been set up by the Benchers [of the Inner Temple] in celebration of Sir Michael Havers becoming Lord Chancellor to take place on the Wednesday which, as it happened, followed my meeting with Mrs Thatcher on Monday. This was rather awkward. I had known about the dinner and proposed to go because I was an Honorary Bencher of the Inner Temple. I was consulted about the dilemma and I said, “Well, I think you need to ask Michael Havers, but my suggestion is that you go ahead with the dinner in celebration of Michael Havers and obviously I will be going anyway. The only addition would be that my wife should be invited because I think it would be right that she would be there as well”. Michael Havers was consulted and all was arranged. The funny thing is that the reason I had been unable to contact Bett on the Monday was because she was out buying a new dress. Well, that dress proved very useful for the dinner! The other thing about the dinner was that the menu had been printed the week before and it simply said the dinner was given by the Benchers of the Inner Temple in honour of “the Lord Chancellor” without further specification – so it proved to be in honour of us both!
Michael Havers gave the most generous speech – after all he had been an English silk, in politics, and the very top of his ambition would be to be the Lord Chancellor. Now I was to take that position. Michael said that when he saw the diary [of the Lord Chancellor] he knew he could not manage it so that is what happened.
Two or three weeks after my conversation with Mrs Thatcher and the announcement of my appointment as Lord Chancellor, we attended the cenotaph service and we had been invited to lunch afterwards with the Speaker of the House of Commons, Bernard Weatherill, and his wife. On our way we discovered that Mrs Thatcher and her husband were to be at the lunch as well, just the six of us. We arrived first at the Speaker’s house and when Mrs Thatcher and her husband came in I introduced Bett as “the lady who kept us waiting”. Mrs Thatcher bowed very low and said to Bett, “We are very grateful for your answer”. That was her way. This was an aspect of her character that comes to my mind. Many things are said about Mrs Thatcher that I do not recognise from my dealings with her. Certainly, she did not suffer fools gladly. If someone was mumbling on with nothing to say she would draw things to a conclusion and I have no doubt that, faced with people that she knew were opposing her in some way, she could be fairly forthright. But otherwise, in my experience, Mrs Thatcher would listen very carefully to anybody who had anything worth saying and she had this particular feature that, when she decided she had understood and taken stock of all the arguments for and against, she would take her decision and when it was challenged she certainly knew how to cope with it. I think that was a part of her strength – “the lady’s not for turning” on a decision that she felt was right. It has been suggested that Mrs Thatcher brought a sort of “no U-turns” approach to politics, but it was more a question of once she had reached a decision after hearing all the arguments, she knew how to stick to it. A lot of people found her quite difficult really and you certainly had to get things done, but she had great character.
When I found myself Lord Chancellor, well, that was something else. It was extremely useful that I had been the Lord Advocate. I knew a bit about handling the press, not that I was particularly clever at it, but at least I had some experience of it and I knew a little about where the dangers lay.
It was curious too that, when I was a Lord of Appeal, Lord Hailsham as Lord Chancellor was dealing with the latest spat concerning Judge James Pickles, and, apparently, so somebody told me, Quintin [Lord Hailsham] said to his civil servant that he thought he might get me to look into this. This was before – to my knowledge – any question had arisen of my being Lord Chancellor, but the story made me think about the relationship between judges and the Lord Chancellor.
[Judge James Pickles was a circuit judge from Yorkshire who was a thorn in the side of Lord Hailsham over, among other things, speaking to the press. Some of Pickles’ judgments made headline news. In one case, he jailed a woman for seven days for contempt for refusing to give evidence against her ex-boyfriend’s assailant. In another, he imprisoned a single mother for six months for theft. He retired as a judge in 1990.]
It was just as well I had thought about it because the issue came up in my first press conference as the new Lord Chancellor. When a new Minister is appointed there is usually a press conference where the newcomer is asked things like what he or she intends to achieve. Well, at that point, I was not sure I knew what I wanted to achieve – I thought then that just to hold my position would be doing quite well! Anyway, I was asked about the rules [the Kilmuir rules dating back to 1955 requiring judges in England and Wales to obtain the consent of the Lord Chancellor before speaking to the press]. The issue was topical because of Judge Pickles’ defiance of Lord Hailsham. When I was asked about the [Kilmuir] rules, I said I did not believe in these rules at all. Judges should be independent of the executive, including the Lord Chancellor for these purposes. I said, if a person is a judge of the High Court he should be able to tell for himself whether or not he should speak to the press and, if so, what he should say. Well, needless to say, the next day’s headlines said that the rules had been abrogated! However, we did not leave judges entirely to their own devices. We gave advice to judges about dealing with the media and we also gave some training to judges as to how to answer questions from the media and the like. But no rules as such. This got us out of a difficult position because, if a judge were to be determined to thumb his nose at the rules and we tried to enforce them, it would be very difficult indeed. So I was the new man that made a change at his first press conference on taking office – that was quite an interesting experience.
I sat in the Lords as Lord Chancellor and I sat as a judge quite a lot – the records will show that there are plenty of cases. That was a highlight really.
RP – Did you ever sense any disquiet or even hostility about being essentially a Scottish lawyer holding the office of Lord Chancellor, or had the fact that you had been a Lord of Appeal in the House of Lords made that less of an issue?
Lord Mackay – Well, as you know, of course, a very severe question broke out not very long after my appointment, in 1989, when I was suggesting opening up rights of audience. [Lord Mackay proposed ending the English Bar’s monopoly on rights of audience in the higher English courts. The proposal was greeted with near hysterical opposition in some quarters but was eventually enacted by the Courts and Legal Services Act 1990.] There was some whispering behind the hands that “oh, he’s a Scottish lawyer and doesn’t understand the system here”. I was glad to be able to point out – not in a sense of pride but just as a matter of experience – that I had done at least one important case as a silk in every speciality they have in England. But, of course, the Chambers system in England is strong and the competition between Chambers is strong and there was perhaps a slight tendency for that to move into the selection of people for judicial office and that sort of thing.
I remember when I put forward my proposals for altering rights of audience, The Times decided to hold a big conference in the South Bank Theatre and they asked me whether I would come. I said, certainly. It was Robin Day who was the question master and they put me in this great big chair right at the front of the stage with the lights on me and Robin Day at my back on the right. I felt very much on my own and he started to ask me a question about the green paper. “Lord Chancellor”, he said, “the Attorney General is a member of the Government, did he approve of this green paper?” I had to choose my words carefully because I had had some discussions with the Attorney General. I said, “The paper has been put out on behalf of Her Majesty’s Government, of which the Attorney General is a member”. That was the end of that line of enquiry. There were some moments of laughter. I recall somebody said there was not enough time for a consultation. “Well”, I said, “considering what I’ve read from some people, the time is too long because they’ve made up their minds already”. These sort of exchanges helped to open up the atmosphere.
Some judges supported me very warmly in what I was proposing, but not all, of course. It was an exciting time.
It was a great boon to me that I had no preconceptions. I discussed all appointments with the senior judiciary, including silk appointments. Generally speaking, I would go along with them but not completely. Somebody asked me afterwards whether Mrs Thatcher had ever turned down any of my advice on judicial appointments and I said I was always happy with all the decisions that the Prime Minister made. I chose my words carefully.
I must say, Robert, one of the things that I am particularly pleased about is this. I was almost ten years as Lord Chancellor and I had an extremely loyal department. One of the tests of loyalty is leakage. There were only two leaks from the Lord Chancellor’s department during my time there. The first was a mistake – somebody addressed an envelope incorrectly. The second was by a disgruntled temporary secretary. Of course, when you communicated with other departments, as from time to time had to be done, then the possibility of a leakage from them was somewhat greater.
It is a great position to be in, that of Lord Chancellor. Of course, it has changed beyond all recognition now. I do think the result has been to lower the standing of judges in the state hierarchy generally. It means the judges are not represented at the “top table”. Some would say that is a good thing, but, certainly from the point of view of the standing and authority of the judges, I think it is possibly a pity. On the other hand, there are issues about the Lord Chancellor being a member of the government and judging cases as well. My fundamental point of view is that you must be able to trust people to do their work properly. If you do not show trust in people then possibly they will prove not to be wholly trustworthy. If you have integrity you should be able to know what you can do as a judge and what you can do as a member of the Cabinet and they are quite different. I do not think the separation of powers has to do with individuals; it has to do with organisations. A judiciary is not the legislator, neither is it the executive, but the judiciary has legislative powers and rules of court and so on, and they have executive positions in relation to getting the court’s work done – that is executive really. But it was decided [and enacted by the Constitutional Reform Act 2005] that the Lord Chancellor’s position – as a judge, a member of the Cabinet, and Speaker of the House of Lords – was no longer viable. It was also thought to conflict with the European Convention on Human Rights. So there it is.
RP – And you served as Lord Chancellor for ten years...
Lord Mackay – I was the longest, continuously serving Lord Chancellor in the 20th century. Lord Hailsham served for longer but that was in two terms in office – eight and four years. There was never a Lord Chancellor before me who was only a Scottish lawyer. It showed the courage of Margaret Thatcher that she was willing to risk that. I think I am right in saying that there was only one Lord Chancellor before me who was qualified as a lawyer in Scotland – Lord Brougham [in office 1830-1834] – but he was also an English qualified lawyer. I never did qualify in England so my position is unique.
RP – You must be close to holding a record for the number of legal appointments held?
Lord Mackay – I do not know about that. I was never a senior judge in Scotland.
RP – But you were a Senator of the College of Justice. And regardless of numbers, you have held a unique combination of high legal offices in the 20th century. Since retiring as Lord Chancellor, you have been a very active member of the House of Lords...
Lord Mackay – I sit when there is any sort of contentious business which is likely to have a vote. It would be difficult for me to go every week. However, there is a very good service between Inverness and London – I usually fly to Gatwick and use the Gatwick Express to London.
RP – Because after you “retired” you moved back to the Highlands...
Lord Mackay – Yes, first to Cromarty, which is a very beautiful place, and then we moved to the outskirts of Inverness, just on the border of the city. The city is spreading up the hill towards us, but it has still got a bit to go. We can go out of our house straight onto the moor. Five minutes later you would never know there was any city near you. And I have always taken an interest in establishing the University of the Highlands and Islands. I am delighted now that we have the University title and I am patron on the
UHI Development Trust. I try to help as best I can.
RP – I have only known you in your time as Keeper of the Signet and one thing I have noticed is your tremendous sense of humour. You are very quick to see the humour in situations. How important would you say that is for you?
Lord Mackay – I think it is quite important. You have to be mighty careful about humour that hurts others and I mean it is possible sometimes to be funny at somebody else’s expense. But that is a very dangerous type of humour in my mind and I would always try to avoid anything like that altogether. But humour can be useful – I mentioned the example of the South Bank conference when I said that if the consultation time is thought by some to be too short, on the other hand, it may be too long for others who have already made up their minds. But that kind of thing is not personal or hurtful – and it had the benefit of being absolutely true!
You need to preserve a sense of humour to keep going otherwise things would get the better of you.
I would hate to ever be thought pompous. I have always found that if you see the funny side it helps you to avoid that.
RP – Finally, Lady Mackay is a remarkable lady and your family is clearly very important to you...
Lord Mackay – Well, Bett has been absolutely extraordinary. I mean I could not have done what I have without her support and most of all she has a pretty good sense of humour. One thing she certainly has is a sense that you can get too big for your boots and she is very adept at adjusting that situation!
I realise what a blessing Bett is for me, absolutely terrific. Bett was a nurse and when we got married she was willing to come and look after my father even although it meant she could not finish her course at the Royal Infirmary. She did that for six months or so before he passed away. I am very blessed and I try to be thankful for that. Our relationship has always been very happy and our family is very important to us. They have been supportive of us in every situation. For this I am very thankful.
RP – That seems a very appropriate note upon which to end. James, thank you so much for talking with me and for your support of the WS Society.