Lord Mackay of Clashfern, the Scottish lawyer who served as lord chancellor under Margaret Thatcher for nearly a decade, has died at the age of 99. He was unique in modern legal history for being appointed to lead the legal profession in England and Wales despite having spent his entire legal career in the Scottish courts system until becoming a law lord.
Unbending rectitude and high principles
James Mackay, Lord Mackay of Clashfern, was described by successor Kenneth Clarke as inscrutable. He served as lord chancellor from October 1987, following the resignation of Lord Havers, until the fall of John Major’s government in 1997. He was succeeded by another Scot, Lord Irvine.
The office of lord chancellor, one of the oldest and most senior in government outranking the prime minister, has since been drastically reformed. Holders now also serve as justice secretary and oversee the judiciary but no longer chair the House of Lords or have judicial functions.
Role in Thatcher’s resignation
At the cabinet meeting where Thatcher resigned in November 1990, Mackay was tasked with reading a tribute to her on behalf of the cabinet. He nearly had to read her resignation statement as she was on the verge of tears. Cecil Parkinson urged her to let Mackay read it, but he demurred, saying later, “I felt she would regret it all her life if she did not do it herself.” Thatcher struggled through the two sentences she had prepared.
Early life and education
Born in Edinburgh on 2 July 1927, Mackay was the only child of Janet and James Mackay, both from the far north of Scotland. His father was a railway signalman from Clashfern in Sutherland; Mackay later took that village as part of his titular name. His mother had moved south from Caithness. He won a scholarship to George Heriot’s school and then attended Edinburgh University, where he obtained a first in mathematics and philosophy in 1948.
After tutoring maths at St Andrews University for two years, he moved to Trinity College, Cambridge, where he again received a first and became senior wrangler—the highest scoring maths undergraduate. Despite this, he switched to law after realising his colleague Michael Atiyah, a future president of the Royal Society, was a better mathematician, and after a chance visit to the court of session in Edinburgh. He graduated with a law degree from Edinburgh in 1955.
Legal career and the Glasgow rape case
Mackay became a law commissioner, a member of the law reform committee, and eventually vice-dean and dean of Scotland’s Faculty of Advocates. In 1979, Thatcher chose him as lord advocate over Nicholas Fairbairn. Mackay was given a peerage and duties taking him to Scottish courts, Westminster, the House of Lords, and European Community courts.
His most severe challenge came in 1982 over the notorious Glasgow rape case. A woman was abducted, raped, and slashed with a razor by three men. Despite abundant forensic and witness evidence, a decision was made not to prosecute them. Fairbairn, as solicitor general, questioned the woman’s credibility. Mackay authorised a rare private prosecution; the woman stood up to cross-examination, and the men were convicted.
Lord chancellor and reforms
Mackay became a Scottish judge and a lord of appeal, but his surprise appointment as lord chancellor came after Havers’ early retirement due to ill health. His relative lack of experience in England meant few allies in London, and he faced fierce opposition from the bar, especially as Thatcher pressed for reforms.
He largely devised and steered through the Courts and Legal Services Act 1990, which implemented wide-ranging changes to the judiciary, ended solicitors’ monopoly on conveyancing, and gave them the right to appear in higher courts alongside barristers. This reform provoked outrage, with predecessor Lord Hailsham declaring that “solicitors, barristers are not like the grocer’s shop in Grantham.” The reform passed for England but not Scotland.
Religious convictions and later life
Mackay’s lifelong membership of the Free Presbyterian Church of Scotland, of which he became an elder, caused controversy. He declined to work, travel, or give interviews broadcast on the sabbath. His attendance at memorial masses for two Roman Catholic judges in 1986 and 1988 led to his denunciation and suspension from the church for supporting “spurious and idolatrous” doctrines. He later withdrew and worshipped with the breakaway Associated Presbyterian Church. He remained president of the Scottish Bible Society.
After retiring as lord chancellor in 1997, he became editor-in-chief of Halsbury’s Laws of England and a lord high commissioner of the Church of Scotland from 2005 to 2007. In 1999, he was installed as a Knight of the Order of the Thistle at St Giles’ Cathedral in Edinburgh, having been appointed by Queen Elizabeth II in 1997. He held the ceremonial posts of lord clerk register and keeper of the royal signet, and finally retired from the Lords in 2022.
He received honorary degrees from 16 universities, including Edinburgh, Dundee, Strathclyde, Aberdeen, St Andrews, and Cambridge. He married Elizabeth Hymers, a cousin, in 1958. She survives him, along with their son, James, and two daughters, Elizabeth and Shona.
