Free radical among Tories

PROFILE: Lord Mackay of Clashfern This Lord Chancellor is used to loneliness, says Donald Macintyre
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The Independent Online
Not for the first time, Lord Mackay of Clashfern is looking a lonely man this weekend. His Family Homes and Domestic Violence Bill took a battering this week from a small group of right-wing Tory MPs, and he faces the prospect of an even fiercer revolt over his divorce law reform Bill.

The divorce Bill has been approved by the Cabinet, but it is a safe bet that in their speaking engagements this weekend ministers will not be including passionate defences of Lord Mackay's measure as a flagship of the 1995-6 legislative programme. Seemingly politically isolated, it is just as well that Lord Mackay is happy in his personal life.

The 68-year-old Lord Chancellor makes an improbable subverter of the "family values" that his critics this week have so stridently espoused. He can be seen at grand legal functions holding hands with his wife, Elizabeth, a second cousin and former nurse, to whom he has been happily married for 37 years. He is inordinately proud of his nine grandchildren. He himself was an only child, doted on by loving and devout Free Presbyterian parents. The Clashfern in his title refers to the little Sutherland village where his father, a railway porter and voracious reader of religious biographies and doctrinal literature, was born.

Indeed, had it not been for his devotion to his father, James Peter Mackay might never have become a lawyer at all. He was destined to be a mathematician. As a scholarship boy at George Heriot's School in Edinburgh, he showed exceptional academic brilliance, fulfilled at Edinburgh University and Trinity College, Cambridge. By the time he returned to Scotland, he was already one of the country's leading experts in the highly specialised and theoretical fields of projected geometry, but to get an academic job he would have had to have left Edinburgh and his by now widowed father. He began to think that his logical and analytical mind might be applied to the task of advocacy. To the delight of his father, the young James decided to train for the Scottish Bar.

The fact that Mackay is a Scottish lawyer has been one of the strengths of his career. It is also one of the reasons that Margaret Thatcher, in arguably one of her most imaginative appointments,made him Lord Chancellor in 1987. He was not, as it happens, a paid-up member of the Conservative Party before his appointment in 1979 as Lord Advocate, the senior law officer in Scotland; indeed, there were rumours that Jim Callaghan might have made the same choice had Labour won the election. But he quickly made an impression with a demanding prime minister as a man who mastered detail. By 1987, when Nigel Lawson and Mrs Thatcher resolved to take on an entrenched middle-class vested interest by exposing barristers and solicitors to external competition, they turned to Mackay.

The new Lord Chancellor swiftly produced three green papers that were by any standards astoundingly radical. The first proposed that solicitors should break the Bar's monopoly by acting as advocates in higher courts; the second that building societies should break a solicitors' monopoly by being allowed to do conveyancing work, and the third that lawyers could take work on a "no win, no fee" basis.

You can still hear, reading the Hansard accounts of the Lords debates at the time, the ugly baying of an English legal establishment under threat. The then Lord Chief Justice, Lord Lane, went especially over the top, calling the Green Paper on the Bar one of the most "sinister" documents ever to emanate from the Government.

That was another lonely period - and not just because it coincided with Lord Mackay's hugely publicised expulsion from his own Free Presbyterian church for attending, in an official capacity, the funeral of a Roman Catholic judge. Eminent legal figures dropped him from their invitation lists; Sir Patrick Mayhew, then Attorney General, made clear his private opposition to the Green Paper; and most of the QCs in the Government, including Kenneth Clarke, Geoffrey Howe and Michael Howard, sat uneasily on their hands.

In the end, Mackay was forced to compromise - largely because Mrs Thatcher, in the throes of confrontation with the British Medical Association over NHS reforms, decided she couldn't have a fight to the death with lawyers and doctors at the same time.

The most frequent criticism among Mackay's ministerial colleagues is that "James is not really a politician". That is only partly true: he fought tenaciously and skilfully against the cabinet opposition of John Redwood and John Patten to get through the Green Paper which laid the basis for the present proposals on divorce. His critics also forget that his success in capping the costs of civil legal aid - again in the teeth of protracted opposition from the profession - has been fully in line with the Government's ambitions to reduce public expenditure.

On the other hand, he is no mere party loyalist. He does not go to the Conservative conference; he has no political adviser of his own; and his extra-curricular interests are not, on the whole, political. He is a strict sabbatarian who reads the Bible every day; although he confesses to the odd Jeffrey Archer novel, and enjoys parties.

He has been scrupulous in appointing judges on merit rather than for their political views. Above all, he would be less likely than any of his colleagues to dream up legislation simply for the sake of discomfiting an opposition party. Not surprisingly, he now has few friends in Cabinet.

For a man who was already 60 when he reached the Cabinet, Lord Mackay has pursued a formidable agenda of reform, through which run at least two discernible and related strands: to make the legal system more competitive - and less intimidating - in the interests of the consumer; and to avoid full-dress legal conflicts in the courts wherever possible. His controversial Green Paper on legal aid makes new inroads into the solicitors' monopoly by proposing more legal expertise in Citizens Advice Bureaux. He set up the Woolf committee on the administration of justice, which has already increased the scope of small claims courts. He appointed the first woman to the Chancery division. He opened up the system of appointing magistrates. And he put the first solicitor, Michael Sachs, on the High Court bench. History will surely judge that it was the Mackay Lord Chancellorship that broughtthe end of the English Bar's monopoly of advocacy.

To lose the Family Homes and Domestic Violence Bill, let alone divorce reform, would be a heavy personal blow. But Lord Mackay's period in office should still be memorable long after the noisier and more transient achievements of many of his colleagues have been forgotten.