His insistence in a speech to the Citizenship Foundation that incorporation would draw judges too far into the political arena is at direct odds with the views of Lord Bingham, the recently appointed Lord Chief Justice, who was in the audience.
Lord Woolf, the Master of the Rolls, and Lord Irvine, the shadow Lord Chancellor, have likewise backed incorporation of the convention, which would remove the need for applicants to take complaints that fundamental rights have been breached to the European Court of Human Rights in Strasbourg.
But Lord Mackay insisted that using the convention as the "yardstick" by which Acts of Parliament would be measured "would inevitably draw judges into making decisions of a far more political nature, measuring policy against abstract principles with possible implications for the development of broad social and economic policy which is and has been accepted by the judiciary to be properly the preserve of Parliament".
He rejected suggestions by some senior judges that "there exists a higher order of law comprising basic or fundamental principles against which the judiciary may measure Acts of Parliament and if necessary strike them down".
Ruling out change without "close and careful consideration of the established principles on which our constitutional machinery operates", he said British judges approached their function on the basis of a collaborative approach with Parliament, "employing techniques of adjudication which limit them to the individual case".
Introducing a political element by incorporating the convention would raise the question of whether judges ought to be selected according to their political stance as well as their ability to decide cases on their individual facts, he insisted. "Following on from that is the question of how confidence in judicial independence and impartiality could be maintained, and whether their appointment should be subjected to political scrutiny".
The Lord Chancellor said the convention allowed exceptions to the rights protected so far as this was "necessary" in a democratic society. If the convention became part of domestic law, "which body should decide what is so necessary; the courts which are charged with the function of applying the law, or Parliament which is democratically elected?" he asked.Reuse content