Law: Do we really need a Lord Chancellor?: Criticism of Lord Mackay is widening into a view that his office in its present form is no longer sustainable, says Fiona Bawdon

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The Independent Online
When Lord Mackay introduced his Green Papers in 1989, he was heralded as a reforming Lord Chancellor. A Scot, and therefore outside the mainstream English legal establishment, he was touted as someone unafraid to take on vested interests by introducing radical change.

Now, however, Lord Mackay's reputation as a reformer appears to be under threat. The Law Society president, Rodger Pannone, has already warned that he 'will go down in history not as a great reforming Lord Chancellor, but as someone who destroyed the legal aid scheme'.

Lord Williams QC, the Labour peer and former Bar chairman, is dismissive of Lord Mackay's plans to advertise judicial appointments. 'What does the Lord Chancellor's big idea amount to? Putting an ad in Exchange & Mart and Practical Beekeeper?' he asks. The changes will do nothing to alter the unacceptable secrecy inherent in the system, he says.

As well as dressing up minor tinkering as major reform, Lord Mackay is accused by some of hindering much-needed change in the legal system. Michael Burdett, of the London Criminal Courts Solicitors' Association, says Lord Mackay's 'obsession' with cost- cutting above all else means he is no longer trusted by many in the profession. 'As a result of losing credibility, his presence is impeding real reforms that need to be brought in,' he says.

The office of Lord Chancellor is unique in British politics. It straddles the executive, legislature and judiciary; the incumbent is a judge, Cabinet minister and parliamentarian. In the past, Lord Mackay has defended his foot in all camps as crucial to the preservation of judicial independence. It means, he has said, that he 'is able to act both as a bridge and as a fortification between the executive and the judicial powers'.

Lord Mackay has, of course, always been a bogey man for some, particularly those whose comfortable livings were threatened by his reforms. But there is a growing feeling that the office in its present form is no longer sustainable, with some claiming that Lord Mackay is too skewed towards his political role, and has become solely the creature of the Treasury; a charge that he would deny.

The debate has been given added impetus by revelations in recent weeks about Lord Mackay's treatment of a fellow judge. After a disagreement with Mr Justice Wood, former president of the Employment Appeals Tribunal, Lord Mackay wrote to the judge saying he should 'consider his position'. Mr Justice Wood had refused to agree that questionable appeals should be dismissed without a preliminary hearing - a measure that would have saved government money. This incident was seized on by some as proof that Lord Mackay, the politician, was interfering in judicial matters.

The incident also highlighted other areas of potential blurring of roles. Lord Mackay's intervention led to his being criticised in the House of Lords - where he is, of course, the Speaker. And Lord Williams, who led the attack on Lord Mackay in the Lords, found himself up before him, in his role as head of the supreme court, shortly afterwards.

However, for some observers, it was not the affair itself which demonstrated that Lord Mackay had gone native as a Cabinet minister, but his explanation of his actions. Lord Mackay claimed that he had never intended to suggest that Mr Justice Wood should resign over the disagreement, merely that he should consider his intellectual position. One leading lawyer said the Lord Chancellor was behaving like 'a snotty-nosed politician'.

The Law Society has already announced that it will in future treat him as any other government minister. In the past, says the society, the Lord Chancellor could be relied upon to act as 'a non-political lawyer minister'. But now, says Mr Pannone: 'The special respect lawyers have traditionally accorded the office of Lord Chancellor needs to be heavily qualified.'

If he is no more than an ordinary politician, Lord Mackay becomes fair game. And this has already been demonstrated in a speech delivered by Mr Pannone's deputy, Charles Elly, at a recent conference. Lord Mackay should either 'put up or shut up', Mr Elly said, and went on to characterise him as crashing around in 'big boots', periodically kicking his poodle, the Legal Aid Board. It is a speech that would have been unthinkable for a Law Society vice-president just a few years ago. Although there are reports of some at the society scrambling to distance themselves from the speech, it struck a chord with its audience of legal aid solicitors. Their only complaint was that the society had not adopted a more forthright tone sooner.

Roger Smith, the director of Legal Action Group, says the politicising of the Lord Chancellor's role will inevitably lead to a shift in the profession's relations with him. But he is uncomfortable with the personal nature of some of the criticism. 'The financial pressures on Lord Mackay are structural,' he says. 'The Lord Chancellor has no option but to be a politican, and that has to be recognised.'

The Law Society is being 'naive or disingenuous' in claiming that it ever expected Lord Mackay to champion its corner in the face of pressure from the Treasury, Mr Smith says. He dismisses the 'Mackay should go because no one could be worse' argument.

'If he were to go, you would get a situation, as with the death of John Smith, where attributes once obscured would suddenly become clearer,' he says. Indeed, there is already some evidence of this happening with Lord Mackay's predecessors: legal aid lawyers are beginning to hark back, misty-eyed, to the halcyon days of Lord Hailsham.

However, the biggest threat to the office of Lord Chancellor may not come from the Opposition, or from disgruntled lawyers, but from his own party. The Government's decision to transfer the courts services to an agency basis from April next year may take away much of the rationale for having a Lord Chancellor's Department at all.

(Photograph omitted)