11 minute read
The Interview
Lord Etherton (1965-68) – Friend of the People
Terence Etherton tells Theo Hobson about life as a legal pioneer, and laughing off a hostile headline
In 2016, just a few months after the Brexit vote, Lord Etherton was one of the three senior judges castigated by The Daily Mail as ‘Enemies of the People’. Their offence was to have found in favour of Gina Miller, who had challenged the legality of the government’s decision to activate Article 50 of the Lisbon Treaty, which meant immediate withdrawal from the EU. While presenting him as an unelected elitist blocking the will of the people, the paper drew attention to Lord Etherton’s homosexuality, as well as his youthful expertise in fencing. J.K. Rowling came to his defence: ‘If the worst they can say about you is that you’re an openly gay Olympic fencer top judge, you’ve basically won at life.’
Photo by Roger Harris
Before speaking to Terence Etherton on a Zoom call, I wondered if that would make a good opening question: does he feel like he’s won at life? But once we have said hello, such an opening gambit feels inappropriately brash. It’s the sort of thing one might ask Donald Trump, not a modest, affable pillar of the British establishment.
So, I ask him how he came to be sent to St Paul’s, and whether previous generations of his family had been privately educated. ‘No, they had not. My great-grandparents on both sides came from the Pale of Settlement, in Russia. They were very religious and very poor Jews – they all came to the East End due to pogroms and persecution of one sort or another. My paternal grandfather set up a tobacconist shop. My father left school at fifteen, then joined the Navy during the Second World War, then he also set up a tobacconist business – near Euston station. I was born above the shop – which had an outside toilet, like most houses in those days. My father did quite well and we moved out to Essex. The story is that, out of the blue, he went and bought a public school almanac, and decided to send my older brother Derek and myself to a private prep school. My mother also valued education: after school she had won a scholarship to study history, but when she met my father, she gave up her studies. So, we were sent off to a school in Kent: Holmewood House. I loved it, and joined the Scouts, and became head boy. Coming to St Paul’s was a difficult transition, because that prep school was a rather exceptional place, like a big family, with very friendly teachers. A big day school felt rather anonymous and cold.’ But it helped that he knew a few Paulines through the youth group of the synagogue that his family attended. ‘It was a Reformed synagogue – my family wasn’t very religious by now.’
He was put into the classics stream, and remembers some very good history teachers: Peter Thomson, and Hugh Mead, ‘whom I liked a lot’. He was there when the school moved from Hammersmith to Barnes and found it exciting to have so much space and so many new facilities. He particularly enjoyed the new fencing salle, having realised that this was his sport. ‘St Paul’s was one of the great fencing schools at that time – it had two fencing masters, as well as the salle. And I was good at it.’ He was so good at it that he was soon selected for the national under 20 team.
Though he enjoyed school, he was not entirely socially at ease. Looking back, he attributes this in part to his sexuality, which he was only dimly aware of. ‘I suppose I was struggling to be ‘normal’, to fit in with the group, but feeling I was somehow different. You just live with it at that stage and try to conform’. This only partly changed when he was at university: ‘I understood that I was gay, I think, but didn’t come out at all.’
He read medieval history for two years at Corpus Christi, Cambridge. ‘Then I thought I had better earn a living, so I changed to law. But I’m very glad I did history as well as law, because law becomes all-consuming, so it’s good to widen one’s interests while one still can.’ Fencing was still a major interest. In 1977 he joined the Olympic team, training for the Moscow Olympics of 1980 (he had by now changed from foil to sabre). But he never went to the Games, deciding to join the boycott of Russia following its invasion of Afghanistan. ’In fact, there were other factors too. There was also the fact that Russia was then banning Jews from travelling to Israel, so my political opposition was not just the standard Cold War thing. But my decision to withdraw was also about my career. By that time, I had been a junior barrister for five years and my clerk was getting impatient with all my foreign travel, because fencing is very international, and I wasn’t building up a big practice at the bar. So, I decided that it wasn’t really sustainable to do both.’
He became increasingly aware of the lack of diversity in the legal profession. ‘I was in ‘Chancery’, which specialised in estate planning, conveyancing, and tax, and in my ‘set’ there were nine of us, all white men. And I don’t think there was a single member of an ethnic minority in the whole Chancery bar.’ He became involved in trying to promote diversity, and by the late 1980s things began to change significantly.
But certain barriers to diversity remained, including in relation to homosexuality. In the 1970s, the Lord Chancellor Lord Hailsham had argued that homosexuals should not be appointed judges, as they were more likely to be blackmailed. ‘The absurdity of this was that they were only liable to be blackmailed because of the very prejudice that he was promoting.’ But this rule did not reflect widespread attitudes in the profession, he feels. By the 1980s he was open about his sexuality, and colleagues knew of his relationship with Andrew, who is now his husband. ‘But I didn’t make a big deal of it, I wasn’t the campaigning type.’ Human rights was not his branch of law, but he was involved behind the scenes in the gay rights movement, and also in charities helping AIDS victims. Soon he was able to help such campaigns financially as well. Along with a colleague from his chambers he branched out into advocacy work, and built up a very substantial litigation practice, with an international reach.
He became a QC in 1990, and his practice continued to flourish, but he began to be more interested in public service. Fortunately, Lord Hailsham’s policy was quietly revoked in 1991 (rather surprisingly by Lord Mackay, stalwart of the ‘Wee Free’ church, known for its conservatism), so the possibility of the bench became real. In 2001 he became a High Court judge, the first to be openly gay; over the last decade he has been Lord Justice of Appeal, Chancellor of the High Court and then Master of the Rolls.
His first case as Master of the Rolls was the famous Brexit one that landed him and two colleagues on the front pages. ‘We had anticipated, and discussed, that the issue was so highly charged that, whatever the outcome, there was bound to be some sort of criticism. But I was so busy at that time, having just started this new role, that all the furore didn’t affect me very much. And the reference to my homosexuality didn’t bother me — there was no question of outing me as I had been fully out for many years. It just seemed rather comical that it was mentioned alongside my interest in a minority sport, as grounds for seeing me as a rather suspect character – it was hilarious!’ According to his colleague Lord Burnett, the incident made Lord Etherton into ‘something of a folk hero’. To mark their admiration, his staff presented him with a Lego figure of himself: a fully robed and wigged judge wielding a sword (it’s a bit more of a Star Wars lightsabre than a fencing sabre).
What about the wider issue of a populist political mood seeing the judiciary as an unaccountable elite? Is there a danger that such politics can make judges seem undemocratic? ‘Well, there is always the possibility of judges being criticised, on the grounds that they are not elected. But it’s clear enough that our constitutional role is to interpret and enforce legislation that Parliament has made, including in this case the European Communities Act.
It’s a never-ending complaint, if a certain community or the press dislikes a ruling, to say that judges aren’t elected, but it’s rather irrelevant, because we’re not meant to be.’
He has recently been appointed by the Government to head an independent review into the dismissal from the Armed Services of military personnel who were or were perceived to be homosexual between 1967 and 2000. With the slow precision one would expect, he explains the reason for the review: ‘In 1967 the Sexual Offences Act decriminalised same sex acts between consenting adults in private but did not extend this to the military. The policy applied whether or not there were any sexual acts; it was sufficient for dismissal that the person in question had an LGBT orientation. The policy came to an end after two cases were brought before the European Court of Human Rights by three men and a woman who had been dismissed for their sexual orientation, and notwithstanding their excellent service records. The Court in Strasbourg held that in each case there had been a breach of the right to a private life under Article 8 of the European Convention on Human Rights. The ban and dismissal have left many of those affected with a sense of great bitterness. In many cases there were highly intrusive investigations by the military police into the sexual orientation of service personnel under suspicion. Dreams of military careers and lives were shattered.’
Is the main point of the inquiry to ensure that those who fell foul of the ban are properly compensated? ‘In broad terms the review is required to provide an opportunity for those who suffered from the ban to tell precisely what happened to them and how the dismissal has affected their lives subsequently, and to provide recommendations to the Government on how this disaffected group of veterans can be encouraged to join the wider community of veterans, and what can be done to rectify so far as possible the harm and injustice caused by the policy.’
In recent years he has often argued that the justice system must be made more accessible to all. What are the main current threats to such accessibility? ‘There are quite a few. In terms of criminal law, we’ve lost half of the junior criminal bar, because they can’t afford to work. There must be people able to represent others, either pro bono or through legal aid. Also, we have to move with the times and improve online services, which can speed things up and can also provide good clear advice, ideally helping people to resolve disputes before they come to court, where they cost so much time and money.’ On the first issue of the relatively low pay of criminal lawyers, I risk asking a naive question. Why can’t there be some redistribution of earnings, so that some of the millions made by corporate lawyers are diverted in the direction of their socially useful colleagues? ‘Well, something of that sort has actually been proposed a couple of times, especially in relation to large firms of solicitors – to put aside funds for pro bono work. But that has to be done by persuasion, not by decree.’
His preference for gentle persuasion over confrontation also relates to his sexuality. He might not have been ‘the campaigning type’ in his youth, but as a grandee, Lord Etherton has surely made up for this: he has been delivering a clear message for many years, with calm dignified restraint. ‘When I became a high court judge I decided that I would never deviate from being myself – a successful openly gay man in a gay relationship. And I’ve followed that – I’ve sought to show people who are nervous about being themselves that it is possible. If people are good at what they do, they will do well – they can’t expect special treatment because they are different, but they can expect to be treated the same.’
