Garrick votes for women
Committee accepts legal opinion that women have always been eligible to join
The Garrick club has accepted legal advice that women may be elected as members without the need for a change in the rules.
The club’s general committee agreed by a majority last night that it would accept the advice and follow it, subject only to approval of its decision by a simple majority of those voting at a members’ meeting planned for next month. Last year, a majority of members who voted in a postal survey said they were in favour of women joining the club.
The general committee is responsible for supervising the management of the club between meetings of the entire membership. Its scheduled monthly meeting yesterday was inaccurately described as a “emergency” meeting in the Guardian’s late-night report.
Committee members considered a legal opinion delivered on 19 March by Lord Pannick KC and Emily Neill. Having examined the club rules, the two barristers said it was their opinion that they “do not bar women from eligibility for membership of the club”.
Their advice was endorsed by two very senior legal figures from among the membership.
If the committee’s decision is endorsed by the meeting next month, women will immediately be eligible for membership alongside men.
The effect of the resolution agreed by the committee last night is to acknowledge that the rules have never prevented the election of women. If a change in the rules had been necessary, it would have required a two-thirds majority of members present and voting at a general meeting.
A number of members have recently offered their resignations. Because members may have been under a misapprehension about the effect of the club’s rules, I understand the committee has deferred consideration of all resignation requests for the time being.
There is no suggestion that women will be fast-tracked for membership. As I understand it, that would be unlawful discrimination as defined by the Equality Act 2010. Because there is already a lengthy waiting list, it will be some years before the impact of yesterday’s decision is felt.
Pannick’s opinion says:
In our opinion, the rules do not exclude women from eligibility for membership of the club. The approach in the rules is to give a wide discretion to the general committee as to the election of members. The only express restriction on the persons who may be members relates to circumstances of bankruptcy (and even that restriction can be waived as a bar to membership by the general committee following due inquiry).
We do not consider that, on the ordinary understanding of the language of the rules, they exclude women. Nor do we consider that the de facto position of the club as an all-male club indicates any contractual intention to restrict access to men only. Indeed, the absence of an express provision to formalise what has been the de facto position is an objective indication that the drafters of the rules have never formed a settled contractual intention to limit membership to men.
Pannick’s opinion was obtained by solicitors instructed by four individual members of the club. As the opinion has already been widely reported — and because it is likely to be regarded as a historic document — I have quoted from it extensively and published the full text.
As I shall explain, Pannick’s opinion contradicts earlier advice, later rescinded, given by a KC who supervised him when he was a pupil at the bar.
Declaration of interest
I have been a member of the Garrick club since 1992 and, as is traditional, I have always declared my membership in Who’s Who. I served on the general committee for three four-year terms — the maximum permitted — but I now have no official position in the club.
This account of the legal issues is based on material in the public domain as well as information given to me for publication by a number of sources within the club over a period of time. Those sources believe that the club’s unwillingness to speak publicly has led to damaging misunderstandings, some of which have extended to members. This article has not been approved for publication by anyone within the club.
The Beloff opinions
The Equality Act 2010 took effect in October of that year. That led to questions about whether women could be elected to the Garrick.
In fact, the legislation is perfectly clear. Although associations must not discriminate against candidates and members, an association does not contravene this provision by restricting membership to persons who share a protected characteristic — such as sex. This exception was agreed by the then Labour government, it was said at the time, to protect working mens’ clubs in the north of England.
In 2011, two women were proposed for election to the Garrick. It was agreed that the question of their eligibility should be settled by independent counsel. Michael Beloff KC was instructed and he delivered his advice in October 2011. Like Pannick, Beloff has never been a Garrick member
His view was that there was nothing in the rules to say that references to he had to be read as including she. Such a construction was required neither by the Equality Act nor by the Human Rights Act. The Interpretation Act 1978 does indeed provide that he includes she and vice versa. But, as Beloff pointed out, that provision applies only to legislation. The club’s rules are a contract between its members.
Eleven years later, Beloff was prevailed upon to think again. He had supported reform a few months earlier in his lively and entertaining memoirs, predicting that the Garrick would admit women as members “sooner rather than later, though not soon enough”.
In October 2022, the KC said his attention had recently been drawn — he did not say by whom — to a provision in the Law of Property Act 1925.
This says:
In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this act, unless the context otherwise requires… the masculine includes the feminine and vice versa.
Beloff expressed surprise that no lawyer who had considered the club’s post-1925 rules seemed to have thought of this point before. He acknowledged that this might have been because it was wrong: there was a view that the provision was intended only to save verbosity rather than to change an intended meaning. But Beloff concluded that “the proponents of change can cogently argue that the Law of Property Act on its face requires he in the club’s rules to be read to include she”. They could also argue that this was supported by “societal views”.
Questions were raised about the effect of a “cogent argument”. Beloff clarified his thinking by issuing a further note in June 2023. If the question comes before a court, he wrote, “it is more likely than not that the court would hold that the law permits women to be admitted to the club”.
These and other opinions were passed around within the club — though not formally circulated to members. The Times carried a detailed report last September. Meanwhile, given the differences of opinion, senior members of the Garrick considered how the club’s interests could best be served.
Votes for women
The club’s leadership has tried, with a lack of success that was entirely predictable, to keep what it regards as the internal affairs of a private association out of the public prints. At the same time, it has been doing its best to ascertain and reflect the view of members.
As the Guardian reported in 2015, a slim majority had voted at the club’s annual general meeting that year in favour of allowing women members. The numbers were even tighter than Brexit: 50.5% of members voted in favour and 49.5% against. That fell short of the 66.6% majority needed to change a rule. But it was a considerable increase on the 20.5% of the membership that had supported reform in 1992.
A postal survey of was conducted last autumn. Members were asked simply if they were in favour of women being eligible to join the Garrick club as full members, something they were told could not happen without a change in the rules.
A majority supported the election of women, the Guardian reported in December. Of those who responded, 51% were in favour and 44% were against. The remainder did not express a view.
Pannick’s opinion
After setting out the relevant rules, Pannick and Neill say in their written opinion that the rules must be interpreted in accordance with principles of contractual interpretation. These principles look to both the language of the contract and the factual matrix — what the parties meant.
The barristers continue:
In our view the language of the rules is clear. There is no prohibition on the admission of female members.
These, in summary, are their reasons:
There is nothing in the language of the rules which excludes any class of person from membership, save for an existing member who has become bankrupt.
On the ordinary meaning of the language of rule 3 there is no restriction of the proposal of candidates for membership to men. Although the language of clause is phrased by reference to the masculine (“No candidate shall be eligible unless he be proposed”) it is entirely within the ordinary use of English language that a reference to the masculine denotes the feminine unless the context otherwise requires. We note that the Law of Property Act 1925 makes statutory provision to that effect, which operates as a matter of law, but we doubt whether that provision makes a material difference to the position which would apply, in any event, under the ordinary usage of the English language.
We do not consider that there are counter-indications in the rules, when read as a whole, which displace that ordinary understanding that the masculine can include the feminine.
There is nothing in the broader circumstances of which we are aware which indicates that the reference to “he” in rule 3… should be interpreted as referring only to men, such that only men are permitted to be members.
They conclude:
We are of course aware that the club is, and always has been, an all-male members’ club. However, that is a consequence of the discretionary choices of members and the general committee as to who should be a member rather than any express provision in the rules restricting those eligible to be members.
Had there been a settled contractual intention amongst those formulating the rules to ossify the club’s de facto position as an all-male club, it would have been expected that this would have been done by making express provision in the rules.
However, the rules have continued without any such express provision, even though there appear to have been various amendments made to the rules since their first formulation. That is a strong indication that there has been no settled contractual intention to require that the club be an all-male club.
The absence of an express provision to formalise what has been the de facto position is an indication that the drafters of the rules did not want to limit eligibility for membership to men (or that there was insufficient agreement between those formulating the rules to exclude women).
For all these reasons, it is our opinion that the rules do not bar women from eligibility for membership of the club.
Although members of the Garrick have disagreed on the issue of women’s membership, support has been growing over the years. The club’s leadership has been cautious about taking a lead on what has proved, in the past, to be a divisive issue.
For the past three years, though, members of the committee have been working to achieve a broad consensus. In what is regarded as the best spirit of the club, those efforts have now proved successful.
Lord Pannick’s Instructions
Unfortunately, David Pannick’s opinion is flawed. That is because he was badly instructed. If the right information had been made available, he would not have reached the decision he reached.
Because of their deficient instructions, he and his junior were unable to address properly the nub of the issue: whether in the Rules of the Garrick Club the use of the masculine included the feminine, “unless”, as they agreed had to be considered, “the context otherwise requires.”
Opinions of barristers often state what information they have been given to enable them to form their view. In their Opinion, Lord Pannick and his junior only stated that they were sent copies of the Garrick Club’s Rules and By-Laws and three previous opinions of Michael Beloff KC. They did not say they were given any history of failed attempts to amend the Club Rules, of actual amendments or of the many discussions of the issue and comments on it over the years in the club’s newsletter. All these matters, and others, are listed in an eleven-page memorandum prepared by the Club’s librarian. If they had been sent that and the numerous underlying documents, they would surely have said so.
Yet it was an essential part of their task that they examined whether the context of the language of the Rules otherwise required a different interpretation than the one those instructing them hoped for. It is therefore significant to note that those instructing them appear not to have provided them with the information they needed to be able to form a correct view.
Had Lord Pannick and his junior been sent what they should have been sent they could not possibly have said, as they did: "Had there been a settled contractual intention amongst those formulating the Rules to ossify the Club’s de facto position as an all-male Club, it would have been expected that this would have been done by making express provision in the Rules. However, the Rules have continued without any such express provision, even though there appear to have been various amendments made to the Rules since their first formulation. The absence of an express provision to formalise what has been the de facto position is an indication that the drafters of the Rules did not want to limit eligibility for membership to men."
The last sentence is completely wrong, but that is not their fault. They were obviously not told of at least four matters which on their own prove that “the absence of an express provision to formalise what had been the de facto position…to limit eligibility for membership to men” was unquestionably deliberate.
In 1992 at an annual general meeting the members rejected by an overwhelming majority (363 to 94 with just two abstentions) a motion: “That the Rules of the Club be amended to include a new Rule stating that in the Rules words importing the masculine gender shall include the feminine”.
They were not told about that. What was rejected at that AGM was precisely what they said they would have expected to find if the Club was in fact an all-male club under its rules. Those instructing them had simply not sent them the Notice convening the 1992 Annual General Meeting setting out the motion which was debated, nor the minutes of that meeting.
In 2015 a motion to the same effect as the 1992 motion failed to reach the super-majority needed for a change in the Rules.
Lord Pannick and his junior did not find that either. Those instructing them had also simply not sent them the Notice convening the 2015 Annual General Meeting setting out that motion, nor the minutes of that meeting.
There have also been two postal surveys of members of the Club predicated on the basis that women are ineligible for membership.
In the last survey only 39% of the membership said they were in favour of women being admitted as members. 34% said they were against. (Incidentally, The Guardian headlined that the 39% was “most members”.)
Lord Pannick and his junior could not have been told about those postal surveys either.
If they had been told the 193-year history of the Club they would not have said that there was no “settled contractual intention” (to use their words), to require that the Club be an all-male Club.
Only sight of their instructions could prove this wrong. But those instructing Counsel have not released their instructions. The time has now come for them to be published.
Bruce Fireman
Edward Henry KC
10 April 2024
I find it puzzling and somewhat depressing that such matters continue to be considered as contentious as we approach the end of the first quarter of the 21st century. I can understand to some extent that some aspects of equality, diversity and inclusivity might take a while to get through to people with entrenched views and perhaps little exposure to the real world. However, the misogyny that still appears to lurk around so many of society's corners truly appalls me.