Sir Terence Etherton: farewell remarks

Access to justice, diversity and smelling salts

This is the text — slightly edited by me — of valedictory remarks made by Sir Terence Etherton at a ceremony to mark his retirement as Master of the Rolls on 17 December 2020.

As on so many of these occasions — when praise is given to someone like myself who is leaving the judiciary after a long period — it always seems so odd to see oneself depicted in these extremely expansive terms by so many of you.

I want to thank, in particular, the Lord Chief Justice, Jonathan Seitler, and David Greene. I know you’ve all done a great deal of work in trying to capture the themes which you see in my lifelong experience — as a High Court judge, as the Chancellor and then as the Master the Rolls.

The Lord Chief Justice has picked up what so many people don’t understand, which is how much work the judiciary contribute outside the strict field of judicial adjudication. There’s a massive amount of administration, to improve the working of the system as a whole, through the Judicial Executive Board. I believe it is a great honour to have served in that capacity; as a jurist and as a judgment-writer; and, indeed, as a contributor to many improvements in terms of the law.

All three of you have picked up, sympathetically, on the themes that run through my career. And I think they play such an important part in my own contribution and my desire to contribute to access to justice —  and my concern with equality — that I wanted to pick these up.

As it happens, it was a difficult period for me ever to have become a judge. I don’t know how many of you know these things: I have given interviews. But when, after I took silk, the time arrived for seeing what I could do to make my own contribution towards the welfare of the public, I found that the possibility of time on the bench was barred to me.

It was barred to me not because of any particular regulation or legislation. It was barred to me because I was a gay man; and Lord Hailsham, who became Lord Chancellor in 1970, had put into effect a policy of not appointing gay men because he felt that it would lead to their blackmail. This was some two years after the Sexual Offences Act 1967 was passed and it was a perfectly outrageous secret policy to have implemented. Although I say “secret policy”, it wasn’t really — because everybody knew that it was the policy of Lord Hailsham.

Of course, the only reason that people like Lord Hailsham felt there was going to be a backlash against the judiciary was because Lord Hailsham felt that appointing an openly gay man would result in potential blackmail. But anyone with the slightest good sense, I would suggest, would immediately understand that if an openly gay man was, or is, open to blackmail, it’s because of the very prejudices of people like Lord Hailsham who espouse those particular concerns and values.

What we didn’t know was that, by the time I became interested in becoming a High Court judge, the rules had in fact changed and that policy of Lord Hailsham no longer applied.

The turning point came not only with that particular change in policy but when, in 1997, it became possible for the first time to participate in what I would describe as an informal approach to the ministry about a judicial appointment. To my complete astonishment, and I’m sure that of everybody else, my informal application was accepted. I had an interview with someone from the ministry. And I was, in due course, appointed to become a High Court judge.

And that brings me on to the second part of my leitmotif — which is that what has driven me, at every stage of my career, has been an attempt to make things better for those who seek better access to justice; for those who seek more efficient justice; and for those who seek to extend access to justice. If I’ve achieved anything at all in my work on the Civil Justice Council, it has been to achieve something in those areas.

Now, everything that’s been said about me in the last half-hour, not counting my own speech, has been very serious. And I’m not quite sure to what extent I should take it with due seriousness or not. It’s all very flattering. But life is more chaotic than that. I referred to the appointments process. But that was not the end of my concerns.

As most judges will know, the first week of one’s appointment is a very, very hectic one. Moving rooms; new cases; so many people to meet; so many things to be done. Of course, we all look forward to our first case. And I found to my slight concern — without identifying the person in question — that the advocate appearing before me spoke in a most extraordinary, unexciting way: in a kind of a monotone which I’d never come across before. It was the combination of a difficult subject and what to do about this phenomenon in advocacy. I was terrified that, in my first week, I would get a reprimand for falling asleep on the bench,

So I went up to lunch at Gray’s Inn, and I explained my problem to the benchers. I said I had not come across that person before as an advocate — although I had done when I was when I was a QC at the bar — and this particular person seemed to be highly competent.

They were quite clear about the matter. They said, you’ve got to get some MacKenzies smelling salts. So, off I went to Boots, next door to my inn, and asked for smelling salts. Of course, what I hadn’t realised —  because I’d never had MacKenzies smelling salts before — is the effect of the rather strong ammonia. So a point came in the case when I took a deep inhalation of these smelling salts, which made my whole body — and my head in particular — jerk back in a kind of drug-induced reaction. The counsel before me were very good: they looked at each other, looked at me and we just carried on. But at least it told me something about smelling salts.

As the Lord Chief Justice has said, there have been many meritorious and non-meritorious Masters of the Rolls. Some have been downright fraudulent and criticised by the House of Commons as significantly open to corruption, in terms of assisting the progress of bills through the House of Commons. In one particular case, the conduct of the Master of Rolls was considered so egregious by the Speaker that he was deprived of his political office, without any recourse to be re-elected. But he was allowed to remain Master the Rolls for another 20 years.

The curious feature about many of these Masters of the Rolls was their names. We all know what is said about the reflection of people, in terms of temperament, in their dogs. These were all 17th-century Masters of Rolls who, as I’ve said, were also serving in the House of Commons. The Lord Chief Justice has referred to the 17th-century Sir Julius Caesar, but there was also Sir Dudley Digges, Lord Colepeper, and Sir Harbottle Grimston.

Somebody who has a name like that is certainly going to get unstuck. Indeed, he got into a great deal of scandal because, according to the gossip at the time, he had made the decision to remove the coffin of his predecessor as Master of the Rolls and insert his own coffin in its place. It seems to me a most far-sighted policy of a well-organised mind — but really rather scandalous. This is not a subject I’ve had any cause to discuss with my predecessor.

I’ve always thought that one of the main reasons for a valedictory is to thank all of those people who have served so loyally and helpfully in my career. I want especially to thank, on this occasion, my clerks Harry Dunk and Amanda Collins, who have served me for many years, as well as Joanna Panayiotou and Matthew Pettipher-Young.

Of course, I’ve also gone through a period when we’ve had quite a few Lord Chancellors. At one stage, there seemed to be a whole rush of them. But I’m happy to say that, in recent times, there has been much slower change. And in that respect, I’m extremely grateful to David Gauke and Robert Buckland. As far as I’m concerned, they are very important in the history of the judiciary and open justice.

In my time as a senior judge, they are the first Lord Chancellors who have recognised the importance of civil justice. For political and other reasons, for a Lord Chancellor the political pressure has been on crime and family — but never civil justice. Under David Gauke and, in particular, Robert Buckland, the importance of civil justice — its contribution to access to justice and the efficiency of justice at the local level — has been really extraordinary.

I’ve managed to achieve many things which I would never have been able to achieve without the support of Robert Buckland. He has appreciated the economic impact, which considerable, of improving access to justice and efficiency through improving local justice. That’s a huge ship which will take time to turn around. But I’m so thankful, as is anybody has an interest in justice. I’m so grateful for all that Robert Buckland has achieved and has helped me to achieve.

I’ve lived under regimes of Lord Chief Justices. They’ve come in many forms. At the beginning of each, we have had protestations that it all will be better. My experience is that it has become progressively better — but never quite as good as the promised land that we have led to believe it might be. I hope that that is, if not the greatest thanks and appreciation, at least something that I can take away with me and leave with the Lord Chief Justice as an improvement in times which are getting much more difficult for the Judicial Executive Board.

Then, of course, there are all the courts ministers and officials without whom none of this system can run. We tend to criticise these officials; but they are the oil which keeps this whole complicated system working.

I want to come back now to diversity. As the Chief Justice has mentioned, Andrew and I entered into a civil partnership in 2006. And in 2014, we had, on the very first day when it was permitted for those who were already civil partners, a religious ceremony. All the members of my division and their spouses were invited. And all, apart from one, came — as well as many others.

The vow that I took when I became a High Court judge was that, as the first openly gay High Court judge, I would never deviate at all from being myself and from living a totally open and honest life as a gay man in a court setting. That is what I hope I’ve achieved.

By and large, that has been the message that has been received — and received well — by the senior judiciary. There have been occasional hiccups.

At one rather grand dinner, attended by members of the appellate committee — now the Supreme Court — and other very distinguished people, the wife of a member of the appellate committee, at one stage during the meal, turned to Andrew, whom she was sitting next to, and said to him, why you here? A perfectly reasonable question, to which he gave the explanation. One she had understood what the explanation was, she simply turned her back on him and didn’t address a further word to him during the whole of the meal. But that was unusual.

And, by the time we got to our wedding day, we had the remarkable situation that there were over 300 invited guests who had accepted the invitation. It was an amazing event and, if anything could more clearly set out what the impact of a greater awareness of diversity is, it would be difficult to improve on that as an example. At the end of the ceremony, everybody applauded and one Lady Justice of Appeal said: “tell me of one occasion during the whole service when I was not in tears”. So I hope that I have kept to my promise to myself to be, if at all possible, a role model. My experience is that role models have a greater impact than anybody else.

As the Lord Chief Justice had said, there were a number of firsts that I achieved. One obvious one is I am the first Master of the Rolls to have a husband. On the same day as my appointment was announced on the Downing Street grid, Andrew said excitedly to me: you’re trending! I’m going to be honest with you — this was a long time ago — and I asked, what does that mean? He said, you’re the news of the moment. Now, I bet you today that virtually everybody knows perfectly well what trending is. And that’s because we’ve moved into a completely different age of IT. We’re in a new world, which we must accept.

I could say a lot more but, most importantly, I want to talk about people who played an exceptional role in my life. Highest on the ladder would be Andrew. We’ve been together for 42 years. In effect, we started and finished our careers together. We spent the greater part of our lives together. He’s given me, through good and bad, wonderful guidance to my career in so many ways. Our relationship has been based so much on caring for one another, not only in the sense of caring whether we’ve been successful but caring that we have made the right decisions in relation to important points.

I’m extremely grateful to Jonathan Seitler for doing so much work in looking at my career, particularly in the field of possession actions. I’m very, very grateful indeed to David Greene. I personally have had a wonderful and enriching association with the solicitors. At the moment, we can’t have the once-a-year admission ceremony, which I’ve enjoyed so much. I still share a more formal role with the Law Society, through the appointment and dismissal of solicitors in particular cases. So for me, the Law Society is not a mere add-on. And I’m extremely grateful that David Greene has turned up today to represent the interests of the Law Society.

So parting with that overwhelming feeling of love and respect that I have for Andrew, particularly appreciating all of the experiences that we’ve enjoyed together which cannot be replicated, I want to say a wonderful thank-you to him for his support — and to all of you who’ve attended for helping to advance those matters that are so crucial to me.  At the end of the day, leaving things better in terms of access to justice is what the whole system is about.