Lord Mackay interview: Liz Truss had ‘no idea’ about legal aid cuts
Lord Mackay (Neil Turner / Alamy)
As he bows out of the House of Lords after 40 years, former lord chancellor Lord Mackay shares his views on the Tory leadership race – and the Duchess of Argyll divorce case.
A visit to a courtroom in Cambridge seven decades ago “just to watch” a case in progress with two student friends was enough to persuade promising mathematics scholar and lecturer James Mackay he was probably heading for the wrong career.
“I thought: this sounds pretty interesting: it's more like what I might want to do,” the now Lord Mackay of Clashfern says today. “Mathematics is very beautiful but it's apt to be something you do on your own. I was more geared up to handling people than academic discussion.”
Within a decade of that fateful visit Mackay was a QC at the Scottish Bar; the senior law officer in Scotland by 1979 as Lord Advocate; and eight years later the Conservative prime minister, Margaret Thatcher, appointed him to head the United Kingdom judiciary and legal system, while presiding over the Upper House from the Woolsack as lord chancellor, a role he kept under her successor, John Major.
I don't know that Liz Truss had any idea of how legal aid was done
Along the way, he outraged some judges and barristers with his most memorable legacy: breaking down the barriers and restrictive practices which had barred solicitors from representing clients in the higher courts; the so-called right of audience. Mackay recalls that the Bar was said to have raised £1m to fight his reform but he got it through, describing the change as “…basic common sense. I have heard no arguments then or since that it wasn't. The essential thing was to be qualified to speak in court. One thing I learned is if you are making changes to fundamental things you are better to go reasonably slowly or you can come a cropper".
At the age of 95, Lord Mackay has finally decided to leave the political stage and stand down from the House of Lords so he can spend more time with Bett, his wife of 64 years, their children, grandchildren and great grandchildren. “I thought 95 was about right. You have to think in reality of what might happen and you never know.” He hopes he and his wife will be able to spend more time exploring the Highlands from their home in Inverness.
What will he miss most about Westminster, where he has remained an active contributor in the Lords? “The colleagues, the argument. I love arguing my corner very much. What got me interested in the law was relationships with people, and Parliament I was always searching for the common position, the middle ground, because that is what you need in politics, if possible. If a bill is discussed in a way that agreement can be reached then it is more likely to survive.”
Lord Mackay in 1988 (Christopher Pillitz / Alamy)
In appearance, Mackay has changed remarkably little from the man seated next to Thatcher in her last cabinet photograph in 1990. He is however freer to speak out now, about where he feels the government has got things wrong, and cites the cutbacks in legal aid provision as one concern. After barristers voted to take legal action and lobbied Parliament over the impact of low rates of criminal legal aid in the final week before the recess, he said he has concerns about access to justice. He does not, however, support strike action by barristers.
“That question should be settled by the courts. In the past, the Bar took a case against one of my predecessors, Lord Hailsham, on the limited size of legal aid and they won. I had no such problem – I was mighty careful how I handled that. I was able to keep legal aid levels up, though I had to open up my guns to do so. I wasn't prepared to stop some of the things I would have preferred not to happen, but if I really came out against, they usually did not happen.”
Mackay was the last lord chancellor to simultaneously juggle three jobs: heading the judiciary, presiding over the House of Lords, and running the government department in charge of the courts and legal aid. Those roles are now split, and he is critical of the move to appoint ministers with little experience of the law to oversee the justice system.
“As lord chancellor and justice secretary, Chris Grayling was in charge when very tight spending limits were imposed and he was really not prepared to stand up for legal aid in the way I had done. I think a person who is not immersed in the legal system will be prepared to give up what lawyers really need because he or she does not believe they have much support among the public.”
Liz Truss as lord chancellor in 2017 (Malcolm Park/Alamy Live News)
And Grayling isn’t the only non-lawyer to serve as lord chancellor who gets a negative mark from Mackay over legal aid cuts; he takes a swipe at Conservative leadership frontrunner Liz Truss too.
Truss repeatedly clashed with top judges during her brief tenure as lord chancellor in 2017: her lukewarm defence of the judiciary when the Daily Mail called judges “Enemies of the People” for insisting MPs must be allowed a vote before activating Brexit was heavily criticised in legal circles and beyond.
“I don't know that Liz Truss had any idea of how legal aid was done either, when she was lord chancellor and justice secretary,” Mackay says. “You really need to know something about it.”
Mackay is also concerned about the rise in gambling addiction. His valedictory speech to peers in July was preceded by questions to the government on the repeated delay in delivering its manifesto promise to review the Gambling Act and publish a white paper, already delayed several times. Peers heard there is at least one gambling-related suicide every day, and that 60,000 children are already classified as gambling addicts.
Lord Mackay confesses he was not keen on the National Lottery, introduced by the Major government. "I regard gambling as very addictive and have seen people myself who became very addicted to it.”
Once a couple separate, it is almost impossible to put them back
Known for his devout Christian faith, Mackay was brought up in the strict Presbyterian Church of Scotland, known as the “Wee Frees”. But in 1989 the Church excommunicated him for attending the Catholic funerals of two friends and colleagues. He brushes the episode aside, however: “They tried to make out that I was supporting the Catholic faith but that’s not what I was doing; it was just a matter of paying my respects. It didn’t matter tuppence to me, but I knew it wasn't right."
Mackay came from humble beginnings: the only child of a railway signalman who had retired through ill health. He won a scholarship to George Heriot’s School in Edinburgh – (and rejects its label as the “Scottish Eton”).
Claire Foy as the Duchess of Argyll in A Very British Scandal (Alamy)
As a young barrister, he had a front row seat as junior counsel in the notorious divorce case between the Duke and Duchess of Argyll in 1963 dubbed the “headless man” case due to the flourishing in court of compromising photographs of the naked duchess engaged in sexual activity with an unidentified male. She lost the case and was pilloried in the press. The story was turned into a BBC TV drama, A Very British Scandal earlier this year, starring Claire Foy as the Duchess.
Mackay, who was on the Duke’s legal team, recalls that the Duchess, Margaret Campbell, had originally sued the Duke for his own alleged adultery and that this was due to be heard first but she then dropped the case. He won't be drawn on criticism today that the Argyll divorce trial was misogynistic in its conduct and reporting but the case may well have influenced his reform of the divorce laws years later as lord chancellor: he introduced “no-fault” divorce, though his proposals have only finally been implemented recently.
“It’s usually very, very difficult to find out what the real truth of a divorce is... that is why I was so keen to get rid of fault as a concept in divorce. Once a couple separate it is almost impossible to put them back, and it’s no good making it worse by arguments about what happened. Judging your fellows is not a pleasant job. The nature of human justice is imperfect."
The former lord chancellor has seen seven prime ministers come and go and is clearly no fan of Boris Johnson: “He didn’t stick to the rules. People who are in public life should be pretty straightforward. I regret very much that our government and Parliament don’t seem to work well at the present time. Johnson was an eloquent chap who got a big majority. You would expect things would work fairly well but it hasn't happened... People were not always careful of what they were doing.”
There is a risk of bringing the Lords into disrepute, and that should be guarded against
He describes the current Tory leadership campaign as highlighting that the Conservatives have become "two parties now". As for the prospect of another wave of new peers to be appointed to an already-overcrowded House of Lords as Johnson’s last act of political patronage: “I find it difficult. It’s important that you attend if you are in the Lords – I have tried to attend regularly. We have to depend on the wisdom and discretion of the people who run the government. There is a risk of bringing the Lords into disrepute and that should be guarded against.”
The current times compare unfavourably, he suggests, with Thatcher’s term as prime minister. He had enormous respect for the woman who made him lord chancellor despite his career as a Scottish barrister and judge meaning he wasn't part of the English legal establishment, and says the two of them had an excellent relationship.
It was Mackay who delivered the cabinet’s tribute to Thatcher on the November day in 1990 when she tearfully announced her resignation, seated next to her as by then the most senior cabinet member following the resignations of Nigel Lawson and Sir Geoffrey Howe. When the prime minister attempted to reply by reading a short statement, she became emotional and there was a pause. He recalls what happened next: “[Then transport secretary] Cecil Parkinson said “Oh Margaret, let the lord chancellor read it” and I said ‘The lord chancellor will not read it, the prime minister will read it.’ There was not a lot of time to consider anything but I felt very strongly that if I had read it she would be very upset afterward and if I said no she would be steeled up to read it herself, and that is what happened. It was the poll tax that was the main cause of her downfall, and there is a limit to the amount of time that a person can be prime minister."
And, at 95, Mackay has decided he has finally reached his own limit in politics. Peers will miss his wisdom and occasional wry, self-deprecating humour. In his farewell speech – greeted by warm applause unusual in the Upper House – he recalled with a chuckle one of his more ceremonial tasks as lord chancellor: receiving new Members on their introduction to the red benches while wearing a hat one parliamentary sketch writer described as resembling a Cornish pasty.
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