Judges could help ‘defeat a tyrannical regime'

“My paternal great-uncle persuaded his parents to change the family name,” he said. “And so Schliama Borrenstein became Seddon Llewellyn Delroy Ryan Etherton.”

It was a complete identity makeover, said Sir Terence, 67. And, as we marvelled at Schliama’s multiculturalism, we could see how successful it had been.

“My great-grandparents on both sides would have been dumbfounded to know that, three generations later, I would be standing here in the Hebrew University of Jerusalem giving this lecture as Master of the Rolls of England and Wales.”

Switching to English, Sir Terence then delivered an important lecture on the maintenance of the rule of law across the world. The United Nations and the Council of Europe’s Venice Commission had both adopted goals and checklists to assess the commitment of different countries to international standards, he explained. Without respect for the rule of law, there could be no effective protection of fundamental human rights.

Sir Terence had been introduced by Michael Karayanni, professor of international law. The first Christian Arab to become dean of the law faculty, Prof Karayanni was born in Israel to Greek Orthodox parents. During his visit, Sir Terence spent time with the dean at his home in Neve Shalom/Wahat al-Salam, the joint Jewish-Arab village between Tel Aviv and Jerusalem.

The Lionel Cohen lecturer is always invited to give some brief reflections on his visit at a dinner in London. This year’s dinner, organised by the British Friends of the Hebrew University, will be held on March 28 and is open to all. It helps raise funds for the university’s law clinics, run by Arabic and Hebrew-speaking students to help people living in the poorer neighbourhoods of Jerusalem.

We can expect a lively evening, judging by the conversation I had with the Master of the Rolls in his room at the law courts last month. He told me his Jerusalem lecture was one of three he has delivered in recent years on topics that interest him “as a practising Reform Jew”.

The first, in 2014, was about the conflict between religion and human rights.

The law has “moved from a Christian-centric body of law with no anti-discrimination legislation to one of neutrality towards all religions or beliefs and a complex framework of civil and criminal anti-discrimination legislation,” he said.

That did not mean the unqualified triumph of secularism over religion. It meant that interference with citizens’ rights would be allowed only if it was proportionate and had a legitimate aim.

His Lionel Cohen lecture came next in the trilogy. “Fundamental human rights enshrined in written constitutions reflect in a public and transparent way the values of a nation,” Sir Terence said.

He would not be drawn on whether the UK — or, indeed, Israel — should adopt a codified constitution. “But not having a written constitution does not mean you don’t adopt values such as human rights.”

Another advantage of a written constitution, in his view, was that suspending it would give a “very clear indication that there is a potential threat to the underlying values of that society”. And that was a point he made in his Birkenhead lecture, delivered at Gray’s Inn last October.

Called ‘The Road to Tyranny’, it began with a detailed account of the Holocaust and the way it was facilitated by the German courts.

“There are numerous instances of the judiciary enforcing Nazi laws, regulations and policies with enthusiasm,” he said. After the war, 16 jurists were tried at Nuremberg, but most were released by 1951 and all by 1955.

Of those judges who exercised jurisdiction only in Germany, not one was successfully prosecuted and sentenced. He suggested that their unquestioning application of the law was the consequence of their “positivist” training, which requires judges to give effect to the acts of a legitimate lawmaker.

Turning to the UK today, Sir Terence asked rhetorically how well our constitutional arrangements would protect liberal democracy in the highly unlikely event that political power ever became wholly concentrated in one political party and its leader. He feared that our constitution would not be up to the challenge.

There had been threats to judicial independence in Turkey and Poland, he noted. But international bodies such as the EU, the Council of Europe and the UN had succeeded in bringing a number of countries back within the rule of law.

Another advantage our judges had was that they could develop the common law to deal with new situations, he said.

“Were the people of this country to face the kind of discriminatory and oppressive laws brought into force by the Nazis,” he said, it would not be surprising if some judges considered it appropriate to use common law “in order to defeat a tyrannical regime enacting laws with due procedure but abhorrent purpose and effect”.

It would be the very opposite of positivism — “but that would surely be its merit”.

None of these weighty issues came across his desk when Sir Terence was working as a business and property lawyer at the Chancery bar. Starting with no inherited wealth, he was one of the first barristers to earn more than £1m a year.

But he had no expectation of becoming a judge, let alone Master of the Rolls — not because he is Jewish but because he is gay.

“We knew that when Lord Hailsham was Lord Chancellor — from 1979 to 1987 —there was an explicit policy of not appointing gay men to the bench because, in his view, we were exposed to blackmail.

"The truth is that, if gay men were potentially exposed to blackmail, it was only because of the views held by people like himself.”

That policy was revoked by Lord Hailsham’s successor, Lord Mackay of Clashfern, in 1991 — but nobody was told. Meanwhile, Sir Terence had been planning to retire from the bar in 2006, when he turned 55, and take up unpaid public appointments in the field of mental health, in which he already held non-executive roles.

Then things changed. Shortly after Labour came to power in 1997 it became possible to apply for a High Court appointment merely by writing a letter to the Lord Chancellor.

“I decided to do so, more out of a feeling of pique than any expectation that my expression of interest would receive serious attention.”

Believing he had no chance of appointment, Sir Terence approached the exercise in a “very casual, resigned frame of mind”.

To his astonishment, he was offered a seat in the Chancery Division. “It was the fulfilment of my hope to be able to give something back to society and particularly attractive to me because it was an area to which I had devoted 25 years of my life.”

Sir Terence was sworn in by Lord Irvine of Lairg, the Lord Chancellor, in 2001. 

“I took Andrew, my partner then of 22 years, and introduced him as such to Lord Irvine. I was the first openly gay High Court judge and he was as gracious as could be.

"Although not an activist, I swore to myself that I would never deviate one centimetre in the course of my judicial office from being open about my sexuality and my relationship — and that it was my task to normalise the idea of a gay couple in the minds of the senior judges.

"I ensured, with Andrew’s cooperation, that he joined me on every occasion at which judges’ spouses were present.”

That proved successful: by the time the law permitted him to marry Andrew Stone at West London Reform Synagogue in 2014, Sir Terence was head of the Chancery Division. All his judges attended the ceremony, along with many members of the senior judiciary.

Sir Terence’s coat of arms has the usual personal references: a sword (he fenced for Great Britain) and sapphires (the precious stone). But his motto, in Hebrew lettering, is the most apt of all. It is the single word hineini — “here I am” — Abraham’s response when God tested his faith. What does it mean to Sir Terence?

“It is my motto because it announces my Jewish heritage; it says you must accept me as I am; it says call upon me, for I am here to serve.” 

The dinner of the Legal Friends of the Hebrew University is on Thursday, March 28. For details of the event and to obtain tickets, contact: Gill.benson@bfhu.org or telephone 0208 349 5757