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.
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.
And, in the meantime, the arenas of grave, unequal conflict and oppression rage and multiply! The Garrick, to my mind, is rather like Concord (or Concorde in France), where my mind told me that it was unviable and a bad idea AND YET I would have liked JUST ONE flight in it- before it had ceased to be. With the Garrick I was once invited by a a senior member of the bar and friend and I found the entire experience riveting; indeed I for example spotted Jill Knight there (formerly a formidable Conservative M.P. for Edgbaston in Brum but by the time of that sighting Dame Jill). I would not have wished to miss that one “bird spotting” opportunity and it had its lasting fascination in that at the long dining table I found myself conversing with a number of VERY senior judges with first names in use as the convention. Now, the Bullingdon or Carlton Clubs? You can have them -and all their baggage and sinister import. I suppose I must be glad, nonetheless, that the embarrassing ban is surely now nearing its formal and its actual close.
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.
And, in the meantime, the arenas of grave, unequal conflict and oppression rage and multiply! The Garrick, to my mind, is rather like Concord (or Concorde in France), where my mind told me that it was unviable and a bad idea AND YET I would have liked JUST ONE flight in it- before it had ceased to be. With the Garrick I was once invited by a a senior member of the bar and friend and I found the entire experience riveting; indeed I for example spotted Jill Knight there (formerly a formidable Conservative M.P. for Edgbaston in Brum but by the time of that sighting Dame Jill). I would not have wished to miss that one “bird spotting” opportunity and it had its lasting fascination in that at the long dining table I found myself conversing with a number of VERY senior judges with first names in use as the convention. Now, the Bullingdon or Carlton Clubs? You can have them -and all their baggage and sinister import. I suppose I must be glad, nonetheless, that the embarrassing ban is surely now nearing its formal and its actual close.