When the Daily Mail damned three senior judges as “enemies of the people” for their Brexit case judgment in 2016, it rubbed a little extra prejudice into the insult for Terence Etherton.
The newly appointed master of the rolls, head of the civil judiciary in England and Wales, was initially derided by the paper’s online edition as an “openly gay ex-Olympic fencer”.
Etherton, who has died aged 73 from a hereditary blood disorder, was sitting alongside the lord chief justice, Lord (John) Thomas, and Lord Justice (Philip) Sales when they delivered their unanimous decision that parliament alone had the right to trigger the formal process for leaving the EU.
The political furore over the case polarised public opinion, but also generated condemnation of the homophobic remarks directed at Etherton, who was second in seniority only to the lord chief justice.
None of the three judges could respond to the personalised attacks which alleged that they were “out of touch” with voters. The attempt to question Etherton’s judicial independence by reference to his private life ultimately failed. The Mail removed that description in later online editions.
As the first openly gay senior judge, Etherton was a pioneer in confronting intolerant social attitudes. Among many achievements, he was a member of Great Britain’s international fencing team between 1976 and 1980. His weapon was the sabre.
He won a gold medal in the Commonwealth fencing championships in 1978, and qualified for the Moscow Olympics in 1980, but joined the boycott of the event in protest against the Soviet invasion of Afghanistan.
In media comments after the 2016 ruling, the author JK Rowling rallied to Etherton’s defence, tweeting: “If the worst they can say about you is you’re an openly gay ex-Olympic fencer top judge, you’ve basically won life.”
Terence was born in Essex in 1951 into a Jewish family who had emigrated from Russia in the late 19th century to escape pogroms. Arriving in the East End of London, where they also encountered antisemitism, his paternal grandfather changed his name from Solle Borrenstein to Stanley Etherton.
His parents were Alan, a hotelier, and Elaine (nee Maccoby). Terence, always known as Terry, attended Holmewood House, a prep school in Kent, St Paul’s in west London, and Corpus Christi College, Cambridge, where he studied history and law.
He was called to the bar in 1974, joining Gray’s Inn. For the following 25 years, as a member of Wilberforce Chambers, he specialised in commercial and property law. Advancing rapidly through the legal profession, he was made a QC in 1990.
At the same time he was active in mental health causes, becoming a director of the Riverside Mental Health NHS Trust in 1992, a member of the Mental Health Review Tribunal in 1994, chairman of Broadmoor Hospital Authority in 1999 and then of the West London Mental Health and NHS Trust in 2000.
As a gay barrister, Etherton’s first attempt to join the bench was blocked. “It was barred to me because I was a gay man,” he revealed in his 2020 valedictory speech. An “outrageous secret policy” introduced by the former lord chancellor, Lord (Quintin) Hailsham, on the grounds that gay men could be blackmailed, was still in force in the early 1990s.
Expecting to be rebuffed, Etherton nonetheless reapplied in 2000. The policy had changed and he was astonished to be accepted. He promised himself “as the first openly gay high court judge” that he would never deviate from “living a totally open and honest life as a gay man in a court setting”.
Further promotions followed. He was appointed chair of the Law Commission in 2006 and an appeal court judge in 2008. In 2016, he became master of the rolls and on retirement in 2020 entered the Lords as a crossbench peer.
His judgments included upholding the legitimacy of a buffer zone restricting protesters outside an abortion clinic and ruling that UK ministers failed to make adequate assessments over whether British arms sales to Saudi Arabia breached international humanitarian law during its war against Yemen.
In 2022, he was asked to chair a review into the treatment of LGBT service men and women in the armed forces between 1967 and 2000. His report criticised an “overt homophobic policy” operated by the Ministry of Defence that resulted in court martial dismissals and, in some cases, suicide.
Etherton lived with his partner, Andrew Stone, for more than 40 years. They did, on a few occasions, encounter disapproval. At one legal dinner, he recalled, the wife of a law lord “turned her back” on Stone after he explained, in answer to her question, why he was there.
Etherton and Stone entered into a civil partnership in 2006. When the law changed, they married at the West London Synagogue in 2014. More than 300 friends, including senior lawyers, attended.
Among his favourite possessions at the Royal Courts of Justice, was a Lego figure of a fencing judge in red robes and wig – a reminder of his sporting career. His coat of arms similarly features a sword with the motto, written in Hebrew, of “Here I am” – a reference to Abraham’s response when God tested his faith. For Etherton it also meant: “You must accept me as I am”.
Etherton continued working to the end of his life despite illness. The lady chief justice, Lady (Sue) Carr, remembered him as “an inspiring judge … with a passionate commitment to access to justice”.
He is survived by Andrew, his brothers, Derek, Richard and Mark, and sister, Gillian.
• Terence Michael Elkan Barnet Etherton, Lord Etherton, judge and Olympic fencer, born 21 June 1951; died 6 May 2025
