Lord Etherton GBE, who died last week at the age of 73, was a highly successful commercial barrister whose commitment to public service was very nearly thwarted by the prejudices of a bygone age.
Etherton – “Terry” to one and all – rose through the High Court and the Court of Appeal to become the head of the Chancery division and finally the second most senior judge in England and Wales. He was far from being the first Jewish Master of the Rolls – only one of the past seven heads of civil justice has not been Jewish – but, however reluctantly, he was a trailblazer and a role model.
When he felt the time had come to give something back to society, Etherton found the option of serving as a judge was barred to him.
This was not because of any particular regulation or legislation, he recalled at a ceremony to mark his retirement from the judiciary in December 2020. “It was barred to me because I was a gay man.” He made up for it by doing voluntary work in the field of mental health, ultimately as chair of Broadmoor Hospital.
What nobody knew was that the ban on gay judges had been lifted by Lord Mackay of Clashfern, Conservative Lord Chancellor 1987-97. It was only when Etherton knocked firmly on the door that he found how readily it was opened by Lord Irvine of Lairg, Mackay’s successor.
Etherton became a High Court judge in 2001. After less than six years in the Chancery division, he was appointed to chair the Law Commission, which advises the government on reform of the law.
At the time, this was seen as a stepping stone to the Court of Appeal. But Etherton realised that if the post was to attract the best High Court judges it should provide for a promotion at the start of an appointment rather than at some point after it had ended. He is credited with persuading the government to increase the number of appeal judges, itself no mean feat.
In 2016, shortly after becoming Master of the Rolls, he was a member of the court that heard Gina Miller’s argument that parliamentary approval was needed to trigger Brexit. That led the Daily Mail to headline all three judges as “Enemies of the People”.
Perhaps aware that Etherton won a gold medal as part of the Sabre team at the Commonwealth fencing championships in 1978 and had been selected for the Olympics in Moscow in 1980, the newspaper described him as an “openly gay ex-Olympic fencer”.
Following that, a tweet by JK Rowling went viral. She said: “If the worst they can say about you is you’re an OPENLY GAY EX-OLYMPIC FENCER TOP JUDGE, you’ve basically won life”.
While Master of the Rolls, Etherton introduced live-streaming of civil appeals. It was thought this would require sophisticated technology and highly-trained staff. Etherton, ever practical, realised that an acceptable result could be obtained with a couple of cameras, a few microphones and a subscription to YouTube.
By the end of his judicial career, he knew he was living on borrowed time. Covid restrictions meant that he took part in his valedictory ceremony from his home in central London. Friends were shocked to see how ill he appeared. Few knew that there was an ambulance waiting outside to take him to hospital.
It was announced that he was receiving treatment for a hereditary blood disorder. Granted compassionate late admission to a recently closed drug trial in the United States, he rallied but never fully recovered.
And yet he was determined to make good use of every moment he had left. Appointed to the House of Lords on his retirement from the bench, he soon mastered the upper chamber’s arcane procedures. Other peers sought his advice: he knew not only what needed to be done but how to achieve it.
And that characterised his final contribution to public life, an independent review of the treatment of LGBT military personnel who served between 1967 – when the Sexual Offences Act was passed – and 2000, when the ban on gays in the military was finally lifted. Etherton travelled across the nation to meet veterans, reading every word of the 1100 submissions he received. All his recommendations were accepted by successive governments.
He was made a Knight Grand Cross of the Order of the British Empire. But there was a second award whose naming he modestly resisted. The Ministry of Defence acknowledged the mistreatment of LGBT veterans by presenting each of them with an enamelled badge, to be known as the Etherton Ribbon.
Etherton came from a large and diverse Jewish family. His father Alan, one of four brothers, joined the Royal Navy as an engineer towards the end of World War Two. A self-taught, straight talking entrepreneur, he played jazz piano and made stained-glass windows as a hobby.
Etherton’s mother Elaine was a gentler soul from an academic family. Her uncle Simon Maccoby was a historian who had taken a starred first at Corpus Christi College, Cambridge. Etherton chose Corpus in Maccoby’s honour and the college, in turn, made Etherton an honorary fellow.
He leaves a husband, Andrew Stone. The couple had been together for some 47 years and their wedding took place at the West London Synagogue in 2014, when civil partners were first allowed to marry. Etherton had served as the community’s senior warden and the synagogue was packed for memorial prayers on Sunday night. Baroness Neuberger, his rabbi, recalled learning midrash with him in their shared room at Lords.
Mourners included his successor as Master of the Rolls, Sir Geoffrey Vos, the Treasurer of Gray’s Inn, Dame Geraldine Andrews and the Lady Chief Justice of England and Wales, Baroness Carr. “In all of the roles that he occupied, he was a force of nature,” she said in a written tribute.
His coat of arms features the single Hebrew word הנני — “here I am” — Abraham’s response when God tested his faith. Etherton promised himself that, as the first openly gay High Court judge, he would never deviate from living a totally open and honest life as a gay man in a court setting.
His mission was to serve others. That, he said as he left court for the last time, was what he hoped he had achieved.
