‘If they cannot trust women to sit with them in the clubby corridors of power, we cannot trust them to do the right thing by women.’ Karon Monaghan KC*

The controversy surrounding the Garrick Club’s judicial membership – brought to light by The Guardian’s Amelia Gentleman a couple of months ago – is not about the fairness of a gathering of like-minded folk in a ‘gentleman’s club’. It is about public service and membership of a private male club being incompatible with the judicial oath and public pledges to support equality and diversity.

In 2011, Lady Hale surfaced this issue at a law diversity event. She said: ‘I regard it as quite shocking that so many of my colleagues belong to the Garrick, but they don’t see what all the fuss is about… [Judges] should be committed to the principle of equality for all.’

Thirteen years later, at least five judges are said to be among those who resigned from the Garrick Club in the days after publication of the club’s closely guarded membership list on 19 March. The list of around 1,500 included a Supreme Court judge, five Court of Appeal judges, eight High Court judges as well as around 150 KCs.

The authors of this article were glad to sign the open letter, organised by barristers Dr Charlotte Proudman and Elisabeth Traugott and endorsed by over 65 lawyers, which caught the mood and challenged judges to resign from the club: ‘We are concerned that membership perpetuates systemic discrimination against women within the highest echelons of societal influence,’ the letter said.

‘In our collective assessment, maintaining membership at the Garrick Club is fundamentally incompatible with the core principles of justice, equality, and fairness, particularly for senior members of the judiciary who significantly shape jurisprudence on gender-based discrimination and inequality and gendered crimes of violence and abuse.’

It concluded: ‘Membership in The Garrick Club is not compatible with the tenets of access and fairness that are cornerstones of our legal system. We therefore ask that any judge… resign their... membership with immediate effect.’

However, according to Joshua Rozenberg KC (hon)’s blog (‘Garrick votes for women’, 5 April), resignations in the wake of the controversy have been frozen by the club until the outcome of a membership vote on changing its rules. This follows receipt of Lord Pannick KC and Emily Neill’s legal advice that, having examined the club rules, it was their opinion that they do ‘not bar women from eligibility for membership of the club’. Rozenberg says the legal opinion was accepted by a majority of the club’s general committee on 4 April and endorsed ‘by two very senior legal figures from among the membership’.

We do not know at the time of writing whether the membership vote on 7 May will rubber stamp this position or whether there is enough strength of feeling to swing a vote against it, as might be indicated by a comment posted to Rozenberg’s blog. And even if voted for, although women will become immediately eligible for membership, it could be as long as three years before women members are admitted, such is the traditional length of the Garrick membership approval process.

What’s the big problem?

Writing in The Guardian soon after the list was made public, Karon Monaghan KC admitted that ‘even lawyers sometimes struggle to pinpoint quite what is wrong with [single-sex clubs],’ adding that she is not, as a matter of principle, opposed to them.

‘But the Garrick is not an ordinary club,’ she continued, ‘and herein lies the problem. It is not a club where men with a shared heritage, or gay men, for example, meet for solidarity or for comfort… It is a place where powerful men hang out, forge relationships and work out who they can trust. Women lose out on the opportunity (should they wish to take it) of making those relationships and engendering trust among those they wish to have trust them. But more fundamentally, judges being members sends a message, including to female lawyers and judges, that powerful places are manly places.’

Monaghan went on to say: ‘Judges who are members of the Garrick should not be presiding over cases where sex or gender is a focal point in the case, as in discrimination cases and sexual and domestic violence cases. They cannot be trusted to be impartial or at the very least to be seen to be so.

‘If they cannot trust women to sit with them in the clubby corridors of power, we cannot trust them to do the right thing by women. Advocates must now seriously consider whether in some cases it might be appropriate to ask a judge whether he is a member of the Garrick and, if so, to ask that he recuse himself so that justice can be seen to be done.’

Reaction from the top

In an internal message to judges, the Lady Chief Justice reportedly said: ‘You will have seen the recent media coverage relating to judicial members of the Garrick Club. I am alive to the issues raised, which I take very seriously. I wish to emphasise my commitment to diversity and inclusivity across the judiciary. We must continue our vital work in this area including delivering on the work outlined in our diversity and inclusion strategy.’

With Dame Carr’s words ringing in the judicial corridors this became significant moment for those who look to those in power to lead on diversity and inclusion. In a statement, Chair of the Bar, Sam Townend KC contrasted Garrick Club membership with the commitment to fairness, equality and diversity at the heart of the Bar Council’s work.

In a strongly worded response issued on 27 March, the Bar Chair said: ‘Women barristers have not yet secured equal representation or remuneration in our profession and are underrepresented in the judiciary. In this regard, the Bar Council remains committed to ensure that those who work within the justice system are more reflective of the society we serve.

‘Closed doors and exclusionary spaces do not foster support or collaboration between colleagues. Where progression from the legal profession into the judiciary relies on references, they create the potential for unfair advantage.'

He added: 'As a profession it is vitally important that we retain the trust and confidence of the public.’

Views on Circuit

The six Circuit Leaders** came together to endorse, in their personal capacity, a joint statement for this article:

‘It was Lord Hewitt who stated in 1924 that not only must justice be done, it must be seen to be done. It is ironic that 100 years later we find ourselves embroiled in a debate about that very same issue.

‘Our judiciary is, rightly, held in high esteem across the world. It also suffers from a significant diversity issue with women and minorities being greatly underrepresented in the higher courts. While male judges remain members at establishments such as The Garrick it sends out a message to those who are excluded. It shouts that the men literally do not want women to be a part of their club. It also raises questions about how those men are supposed to be perceived as fair and unbiased. A woman appearing as a lawyer or a defendant before them might understandably question whether they have been, or can be, treated fairly by a judge actively partaking in a club that excludes women.

‘We understand that some men wish to belong to clubs, to enjoy that sense of camaraderie, to relax away from the pressures of the job, but when those men all belong to the same club, and happen to work in the same profession, a profession which can have such a profound impact on other people’s lives, can it ever be the right place to relax when the club actively excludes over 50% of the population?

‘Is membership consistent with the role of our profession and that of our judiciary in maintaining the confidence in our justice system by all who participate in it?

‘Finally, do our male judges, male barristers and male politicians involved in the justice system really believe that “justice can be seen to be done” when they remain members of the men-only Garrick Club?’

** Michelle Heeley KC, Leader – Midland Circuit; Jo Martin KC, Leader – Western Circuit; Jason Pitter KC, Leader – North Eastern Circuit; Jaime Hamilton KC, Leader –Northern Circuit; Caroline Rees KC, Leader – Wales and Chester Circuit; and Leon Kazakos KC, Leader – South Eastern Circuit.

Behind the times

We are almost five decades behind the times in grappling with this issue now. Before he was confirmed as Attorney General of the United States in 1977, Griffin B. Bell was forced to resign his membership of Piedmont Driving Club. Bell’s membership of the all-male, all-white club had proved so controversial that a special hearing of the Senate Judiciary Committee was asked to consider whether ‘[a] man who chose to restrict his social and political contacts to a homogenized clique’ was suitable to lead the Department of Justice. Should a male judge, the committee asked, surround himself with ‘narrow, selfish interests, isolated from the people he is sworn to represent’?

The questions asked of Bell nearly 50 years ago are now being asked of judges, barristers and solicitors who belong to London’s men-only Garrick Club. The open letter of protest called the club ‘a bastion of power maintained by the privileged few.’ We were struck by this phrase – in 1977, Charlene Mitchell of the National Alliance Against Racist and Political Repression told the US Senate Judiciary Committee that private clubs were ‘bastions of power and privilege, the meeting grounds for business and political connections, influence and powerbroking.’ Plus ça change...

In 1986 the California Judges Association amended its code to deem it ‘inappropriate’ for any of their 1,380 members to belong to organisations that practised discrimination. The debate, as reported in the LA Times, centred around themes which are familiar to those who have been following recent commentary on the Garrick Club. Los Angeles Superior Court Judge Judith C. Chirlin urged passage of the amendment, saying that what is at stake is ‘not just a women’s issue’ but instead the ‘public confidence in the court’. Others defended their positions, pointing to the good work done by men-only clubs: ‘We’re not talking about the Ku Klux Klan,’ said one judge, ‘We’re talking about groups that support orphans, the immunization of children and other worthwhile activities in the community.’ Some were outraged by the suggestion that they might bring bias into their workplace: Merced Superior Court Judge Michael S. Hider said: ‘I find it absolutely incredible that anyone would believe that in my court men would be treated more favourably than women.’

The Garrick Club membership includes good judges who might be hurt by suggestions they may be less than fair in the courtroom. That is beside the point: judges are not ordinary citizens, as the judicial code makes clear, and the appearance of fairness is so central to their role that it beggars belief that anyone could think it appropriate for a judge to be a member of a discriminatory club.

Today, both the American Bar Association and the US Judicial Conference state that federal judges should not belong to ‘any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin’. Under what circumstances an organisation is guilty of ‘invidious discrimination’ is a grey area, and every so often controversy arises over judicial membership of all-male social clubs. In 2011, when the Judicial Council of the Sixth Circuit ruled that one of its judges could retain his membership of the all-male, all-white Belle Meade Country Club in Nashville, a dissenting opinion submitted at the time was by Judge R. Guy Cole Jr. To paraphrase Judge Cole, ‘members of the legal profession must sometimes make sacrifices for the honour of the office we hold, and membership of the Garrick Club should be one of them.’

This is not a new issue

Entrepreneur Emily Bendell has challenged the issue for several years. She came across the Garrick’s no women policy by chance back in 2020 and couldn’t believe such a policy still existed. ‘I have no issue with men only social spaces,’ she says, ‘but clearly the Garrick is a club packed with the powerful elite and particularly highly populated by the top of the legal profession – a profession with significant issues around gender parity in its senior ranks. At best being a member of such a club cannot be consistent with a commitment to equality and diversity and at worst men are being afforded crucial professional networks expressly denied to women.

‘I naively originally believed that if a light was shined on the issue the club would be embarrassed into change. How wrong I was! I initially launched a legal challenge against the rule under the Equalities Act and was disappointed when the wave of press interest essentially missed the point … ‘Bra Queen’s Rising Passion’ was the Times headline… So, I contacted every barristers’ chambers in the UK asking for signatories to a joint statement on the issue [the petition is still viewable at www.womenatthegarrickclub.org]. Over 130 KCs joined me. The following years saw us take the campaign to Westminster with 10 MPs adding their signatures and an Early Day Motion, more recently we have directly petitioned the judiciary as I believe membership of the Garrick cannot be consistent with the Guide to Judicial Conduct.’

Throughout the various iterations of this campaign, Emily says many women barristers have shared their experiences of casual and not so casual misogyny. ‘People often ask why I bother with this, but I believe the path to gender equality is paved with 1,000 small battles and that this is one of them.’

We agree. Garrick Club membership – for so long as it remains a male bastion of power and patronage – is not something to be proud of for those who hold public office. The time is right to redress a long-standing imbalance. 

Exterior view of the Garrick Club in Covent Garden. © Vuk Valcic/ZUMA Press Wire/Shutterstock

Update: On the evening of Tuesday 7 May the Garrick Club voted by a majority to admit women into its membership.