Not long after Margaret Thatcher came to power she had an illuminating row with her lord chancellor, Lord Hailsham, about Sir John Donaldson's appointment as master of the rolls. It was widely believed that Sir John had been kept off the Court of Appeal by the 1974-79 Labour government, to pay him back for what it had seen as his union-bashing role as chairman of the National Industrial Relations Court during the Heath administration. Thatcher was determined to compensate him. Overruling Hailsham's recommendation - that Lord Brightman was a better qualified candidate - she told him: "Go back and tell your judges that the Prime Minister appoints the Master of the Rolls."
In theory, the Lord Chancellor is directly responsible for appointing judges only up to and including the High Court. In practice, a prime minister invariably takes the advice of the lord chancellor on the most senior appointments as well. Irvine is famously a close friend, mentor and political ally of Tony Blair. How many of his predecessors not only chaired some of the most sensitive cabinet committees in office, but also took part in key campaign strategy meetings in the run-up to the general election? But his pivotal political role obscures the other great source of his power: his influence over the administration of justice, including, but not confined to, the appointment of the judiciary.
The Inns of Court were alive with the popping of champagne corks when Labour's victory installed Tony Blair's old pupil master on the Woolsack. His predecessor, Lord Mackay, had been cheerfully hated by large parts of the London legal profession, judges included. Partly this was because of what amounted to professional racism in the English bar. Lord Mackay was not only (like Lord Irvine) a Highland Scot. Much worse (unlike Lord Irvine), he was a Scottish lawyer, and a very eminent one. Partly, of course, it was because Mackay took on the English Bar and its centuries- old addiction to a demarcation line that had made the train drivers' union, Aslef, look like a model of flexibility. Mackay's revolutionary step was to decide that in certain circumstances it was reasonable - and greatly in the interests of the consumer - if solicitors were to speak in court, occasionally displacing barristers. The Bar - from the judges down - fought him every inch of the way, and are still fighting. Solicitors didn't like him much, either; Mackay's determination to curb the costs of legal aid was widely seen as weakness, a failure to do what they conceived to be his proper job, which was to act as the profession's full-time trade union negotiator in the Cabinet. So was his determination to raise court fees to make the justice system more self financing. Since Lord Irvine was one of their own, they could surely now hope for a quiet life.
Those who did, will be disappointed. For Irvine's message yesterday was blunt: if you're talking excessive court costs, then a good place to start is the fees lawyers charge their clients. And, as he pointed out, over pounds 100m in court fees - more than half the total - was paid by large concerns, not by individuals at all. And they are a "drop in the ocean" compared for example with the pounds 1.62m of the pounds 1.68m Maxwell estate that was swallowed up in professional fees. Irvine's argument was that if litigants don't pay, the taxpayer does; that there are already exemptions for the poorest on income support, and that there is still discretion to waive fees for other poor litigants.
Michael Howard's savage sentencing policy, it seems proper to argue, was a crazy waste of public money and an utterly ineffective way of reducing crime. But to argue, as some lawyers have done, that it was "unconstitutional" for an elected politician to impose minimum sentences - as it does, say, for drunken driving - is another matter. And as with sentencing, so with court fees. The Post Office charges us for using the Royal Mail. We pay charges for prescriptions. True, we don't - yet - have to bung the police a small percentage every time they recover our stolen property or stop our houses from being reduced to ashes. But we don't argue that we have a constitutional right not to do so. The subliminal message in Irvine's speech last night is that if lawyers are so altruistically concerned about the poor, they could start by reducing their own fees.
Irvine's radical robustness is unlikely to stop with court fees. On appointments, he has already bared his liberal credentials by insisting on advertising vacant posts for the senior judiciary, striking out the questions to aspiring QCs and junior judges aimed at establishing whether they are gay, taking the first step to excluding over-55s from the magistracy (a measure that will widen the class base of JPs) and experimenting with blind magistrates. All this is - relatively - uncontroversial. But on the Mackay reforms to the profession, he also shows little sign of letting up.
He is known to be impatient with the unwieldy, senior-judge-dominated, statutory committee that took nearly six years to decide that lawyers employed by the Crown Prosecution Service could, if properly qualified, appear in court - but only if led by a senior outside counsel. If Barbara Mills, the Director of Public Prosecutions, were to apply to the committee for such lawyers to appear in their own right, and if it were to try similar delaying tactics, it's not impossible that Irvine would simply bring in primary legislation and abolish the committee altogether.
Last night's speech was no doubt a preliminary skirmish. It was a tough message, and there remains a valid case for arguing that exemptions for lower-income litigants should be extended more widely than at present - for example, to those on jobseekers' or disability allowances. But those who thought that Lord Mackay's ability to use his authority to stand up to the legal profession was a passing aberration, may have misjudged his successor.Reuse content