Implications of the Garrick Club's 2024 legal advice
One story which erupted in the national press this year was the Garrick Club’s admission of women, following decades of debate, and the leaking of the Club’s membership list in the Spring.
At the centre of the latest debate was a fresh set of legal advice (shared last Spring by Garrick member Joshua Rozenberg KC), which the Club had commissioned. This post does not intend to revisit the arguments for and against the Garrick admitting women; but to analyse the implications of that legal advice, particularly for the numerous clubs across England which still remain in a comparable position to the Garrick’s earlier this year.
The Garrick Club’s main staircase. (Photo credit: BDP.)
Disclaimers
Firstly, a few disclaimers: I am not a lawyer, and can in no way be prevailed upon to provide anything approaching a formal legal opinion. (I am, however, an historian who has specialised for the last 15 years in the culture and economics of clubs, an area where I have also undertaken consultancy work in recent years, and so I have some thoughts on the managerial implications of all this.)
Secondly, the Garrick’s legal advice refers to the Garrick’s own specific set of rules, not to those of any other club, which each have their own peculiarities. Against that, I have covered elsewhere how most London clubs retain marked similarities in the scope, structure and content of their rules, not least because of the widespread Victorian-era use of the (now-defunct) Union Club on Trafalgar Square as a template for club rulebooks; and few clubs have chosen a wholesale rewrite of their rules in the last two centuries, preferring instead to amend and patch up; so that while club rulebooks divert from one another, they do tend to share a common source. Additionally, the circulation in recent decades of ‘model rules’ in legal textbooks such as the 3 editions of Ashton & Reid on Clubs and Associations and the 2 editions of Barker and Stevens’s Club Law Manual has, in my experience, brought about greater alignment in club rules.
Thirdly, since the legal opinion rests on the Law of Property Act 1925 and that only applies to England and Wales, the immediate applicability of the wider implications discussed here is limited to this jurisdiction.
And fourthly, a legal opinion is only an opinion. The Garrick’s advice does not represent a universal consensus across the legal profession; noticeably, as reported in City AM, Garrick member Edward Henry KC observed in a public forum that he believed the advice to be “flawed” because the barristers were “badly instructed”, outlining his reasoning in the comments here. (Though my reading is that the objections he sets out are to the applicability of the Garrick’s advice to the Garrick’s own rulebook, rather than to the underlying principles set out in the advice.) Nevertheless, the original advice has been accepted by the Garrick Club’s committee and members alike, and it has been acted upon accordingly.
Background
To fully understand how the last set of advice came to be commissioned, it is worth setting out some of the background surrounding it. The Garrick was far from in a unique position as a men-only club facing calls, both inside and out, to open up to women; these discussions had been going on for decades.
The Equality Act 2010 was one of the final pieces of legislation passed by Gordon Brown’s government. Its scope was extremely broad, seeking to rationalise existing anti-discrimination law by consolidating it into one Act of Parliament covering all aspects of discrimination, harassment and victimisation. Part 7 of the Act specifically relates to “associations”, such as social clubs. Harriet Harman, the minister who steered the legislation through, has confirmed that her original intention had been to outlaw men-only clubs altogether. Against that, she soon realised that this could not be done without also outlawing single-sex women’s sports clubs, which she did not wish to do; and she considered the final legislation to have “a loophole”, which left it “unfinished business” – though no subsequent government has shown any appetite to revisit this area. Part 2, Chapter 1 of the Act explicitly defines sex as one of the “protected characteristics” under law, meaning that it would be an offence under the Act to discriminate by sex. Yet the status of a protected characteristic works both ways: the accompanying Schedule 16, which sets out “Exceptions” for Associations, also enshrines in law the ability of a club to be limited to people who share one protected characteristic – in other words, it guarantees the right to form and maintain a single-sex club. (Note, however, that it only allows a club to be restricted to one protected characteristic; so that if a club is single-sex, it still cannot discriminate on the grounds of age, disability, gender reassignment, pregnancy or maternity, race, religion or belief, or sexual orientation.)
As the Equality Act began to be enforced, there were widespread debates as to its likely effect on different institutions, which were understandably keen to ensure that they remained compliant. Legal opinions were sought, and obtained, in many areas – including across the club sector. Some areas of long-standing practice were eliminated; for instance, while clubs could continue to be men-only or women-only as a whole, it was generally thought desirable by most clubs to end the practice of men-only or women-only spaces inside mixed-sex clubs.
Against this backdrop, one thing which crystallised the issue at the Garrick Club was that actress Joanna Lumley was nominated for membership in 2011. This posed an immediate dilemma for the Club on how to deal with the matter. Legal advice was sought from Michael Beloff KC. His 10-page opinion concluded that women could not be proposed, since the rulebook’s references to “he” implicitly suggested that eligible candidates would be men; and on that basis, Lumley’s application was never processed. This seemed to set a precedent for how any future applications from women would be treated in gentlemen’s clubs with comparable rulebooks, in the post-Equality Act world.
In the next decade, there were various developments. Lingerie entrepreneur Emily Bendell had applied to join the Garrick in 2020, and initiated legal proceedings against the Club citing the Equality Act, before discontinuing the litigation and instead launching a petition that called for women members at the Garrick.
Moreover, the Garrick’s members had formally debated and voted on the issue of admitting women in 2015; and while a bare majority voted in favour (50.5%, compared to 49.5% against; or 297 votes to 291), this fell significantly short of the two-thirds majority required for a rule change under the Garrick Club’s rules. A November 2023 poll of members organised by the Club suggested that views amongst the membership had barely changed in the intervening eight years, with just a 0.5% shift in opinion, to 51% favouring women members, and 49% opposing it.
And this was part of the Garrick’s dilemma: a standard part of 19th century club rulebooks, often intact to this day, sets a high bar to changing the rules – typically two-thirds (and sometimes three-quarters) of voting members. Whilst this helps preserve and protect clubs against ill-considered initiatives, it also acts as what I have referred to elsewhere as an “inertia rule”, preventing a change even long after there is already a fairly wide consensus on the necessity of a particular measure. While this can express itself in a wide range of areas, from the overall shape of governance, to the management of the club, it is in the area of single-sex versus mixed-sex clubs where it has generated the most acrimony in recent decades.
The 1925 legislation
Matters came to a head earlier this decade, when Michael Beloff KC, who had produced the 2011 opinion upon which the Garrick acted, became aware of something which had a direct bearing on his original advice: the Law of Property Act 1925. This legislation, regulating the nature of contracts, states that “he” and “she” may be used interchangeably in contracts.
Its applicability to clubs was obvious. As Ashton & Reid notes, the relationship between a club and its members is a contractual one, and is very much subject to English law relating to contracts. The member’s annual renewal of their subscription signifies their renewal of that contract, and acceptance of any newly-revised terms and conditions. The 1925 legislation does not in any way negate Schedule 16 of the Equality Act 2010 allowing for single-sex clubs. But it does weigh against a presumption that the use of “He” only refers to men – unless a club’s rulebook explicitly says so.
This is an important point. Until the 1925 legislation came to be considered in this light, there had often been a widespread assumption across England that club rulebooks using the “He” tense provided enough of a legal footing to ensure that they would always remain men-only clubs – and so they had not always spelt out in their rulebooks that membership would be limited to men. In their eyes, there had been no need to. This meant that the “inertia rule” now worked both ways – not only would it be difficult to secure 67% support to admit women; it could be just as difficult to effect a rule change to confirm the club as remaining men-only.
Subsequent developments at the Garrick
In light of the 1925 legislation, Beloff subsequently revisited his 2011 advice, twice, in supplemental advice dated 4th October 2022, and in a “Further note on Supplemental Advice” dated 2nd June 2023. Beloff accepted there was “now a cogent argument” under the Law of Property Act 1925 that “he” could just as easily mean “she”; “If so, there is no legal obstacle to the proposal of a woman for membership of the club by one member, seconded by another; nor, if she obtains the support required under the rules, any legal obstacle to her admission as a member of the club.” Beloff also warned that the Club was “likely to provoke an expensive lawsuit” if it did not process membership applications from women, as nominations came in.
Since this supplemental advice was not formally commissioned by the Garrick itself but by several Garrick members, its circulation remained haphazard, although it was widely known about once it was leaked to The Times in September 2023.
There followed the leaking of a complete Garrick Club membership list to the Guardian and the publication from 18th March 2024 of over 60 names of notable public figures, many of whom had not previously advertised their memberships; and the prompt resignations offered by several of those members (including at least four judges, the head of MI6, and the Cabinet Secretary). In response to this, the Garrick proceeded quickly.
Firstly, new legal advice was commissioned by the Club itself, with David Pannick KC and Emily Neill producing their opinion dated 19th March 2023. Secondly, the Club reportedly wrote to members refusing to process any new resignations until after the matter had been settled, giving those members who had already offered their resignations time to rethink. Thirdly, the Garrick’s Committee accepted the new legal advice at a meeting on 8th April 2023, subject to a confirmation vote by members. And fourthly, a special general meeting of all members was called for 7th May 2023, seeking the consent of members to begin processing applications from women. That meeting was held in the Connaught Rooms in Covent Garden, to accommodate all the members anticipated. At the meeting, reportedly attended by 937 members in person or online, 59.98% of members endorsed the proposal, compared to 40.02% voting against (or 562 to 375 votes).
In a coda to this, it is worth noting that the Garrick could not begin electing women to ordinary membership straight away. This was because of the Equality Act’s provisions to not treat applicants differently based on a protected characteristic. As election to the Garrick typically takes around two years, any candidates who have recently applied would not be able to “jump the queue” on the grounds of their sex. This means that, honorary members aside, it is highly likely that the Garrick will remain an overwhelmingly male club for several years more. (It has also been the case that where men-only clubs have opened up to women, the ratio of women members typically remains low for decades to come; a Clubland-wide ratio of around 10-20% is not unusual.) In a partial mitigation of this, two women were promptly offered honorary membership at the AGM on 1st July 2024: Dame Judi Dench and Dame Siân Phillips, who promptly became the Garrick’s first women members.
The 2024 legal advice
The 2024 legal advice provided by Lord Pannick KC and Emily Neill can be read in full here. It concludes:
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 and Neill also argue for the applicability of section 61(d) of the 1925 legislation, which states that in any contract, “The masculine includes the feminine and vice versa”; though they go on to note, “There is no case law of which we are aware which relates to the application of section 61(d).” This directly impacts the ordinary meaning of the Club’s rules.
This view is consistent with Ashton & Reid on Clubs and Associations (2020), which points out (2.17) that in the English language, “we have no pronoun or adjective which denotes a man or a woman. We are faced with ‘he’, ‘him’ and ‘his’ on the one hand, and ‘she’, ‘her’ and ‘hers’ on the other hand.” While they note that the use of ‘they’ “can get round this problem”, they acknowledge “the use of the plural is not always appropriate.” Crucially, Ashton and Reid acknowledge:
“Section 6 of the Interpretation Act 1978 states that, unless the contrary intention appears, words importing the masculine gender include the feminine, but this law is not common knowledge so it is better to have an express rule to this effect.”
Pannick and Neill’s advice further recognises references in the Garrick rulebook to “Gentlemen” (for instance, in “Conduct unbecoming of a gentleman”) and “Gentlemanly accomplishment and scholarship”. But their advice argues:
The term “gentlemanly” is plainly being used here in the sense of the meaning “[o]f a pastime, behaviour or thing” that is “of high quality; excellent”: see Oxford English Dictionary, Meaning 2. That is the only meaning which makes sense in the context in which what is being referred to is “accomplishment and scholarship” “consistent with the original objectives” because those original objectives are not in themselves of the nature of male pursuits or interests. The use of “gentlemanly” is therefore denoting the quality or excellence of the aimed “accomplishment and scholarship”; not that it should be accomplishment and scholarship by men
Crucially, Pannick and Neill also note:
The only provision in the Rules which provides for an automatic bar to the continuation of membership is in Rule 28, which provides that a member “shall forthwith cease to be a member of the Club” if he is adjudicated bankrupt, or suffers proceedings for liquidating his estate or makes a composition or arrangement with his creditors under the provisions of any statute, or has a trustee appointed for the benefit of his creditors.
Since there is, therefore, an explicit definition of when someone is excluded, the implication of Pannick and Neill’s argument, in such a rulebook not stating that sex would be a ground for exclusion, is all the more noticeable an omission. They conclude, “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”.
Additionally, Pannick and Neill’s advice addresses the issue of past practice, concluding that it does not in itself make an institution a men-only club:
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.
Where, then, does that leave clubs in England and Wales facing a similar choice?
Option 1: Admitting women as full members
The first option would be to do exactly as the Garrick Club did in 2024: for the members to formally vote to admit women as full members, on an equal basis. This removes the most obvious difficulties with regards to the Law of Property Act 1925, and the arising implications for the Equality Act 2010.
There is plenty of precedent for this – and not just from the Garrick earlier this year. Previous examples include Pratt’s in 2023, the London Sketch Club in 2022, the Langham Sketch Club in 2018, the Royal Thames Yacht Club in 2014, both the Caledonian Club and the City of London Club in 2011, the Oriental Club in 2010, and the Carlton Club in 2008; not to mention ten historic London clubs throughout the 1990s. Before and after the Equality Act, each of these one-time gentlemen’s clubs made the decision to admit women.
Against that, the exact route taken by the Garrick could generate some level of ill-feeling. Specifically, because the Garrick’s legal advice relied upon a reinterpretation of the existing rules rather than any amendment to the rules, this rendered the 67% quota needed for a rule change irrelevant; which opponents argued was changing the terms of the debate by stealth.
Option 2: Formally confirming that the Club is only open to men
The second option is equally clear and unambiguous in the eyes of the law: a club whose members overwhelmingly wish for it to remain a single-sex club can simply vote to explicitly state this.
This typically takes the form of either a simple motion at a General Meeting of members, which requires a simple majority; or else a change to the rules, which may well have to meet a two-thirds (or even three-quarters) majority. This has already happened in some of the remaining men-only clubs in England – they have not necessarily sought to advertise it, but have quietly taken such steps to ensure that they remain legally compliant, by passing a rule change which makes it clear that from now on, they are a club only open to men. In the eyes of the law, there is nothing more that can be done; and any further prospect of switching to a mixed-sex club becomes a political question rather than a legal one, requiring a significant change of opinion among the great majority of members.
It should also be borne in mind that although most of the historically single-sex clubs of London have in recent decades voted to become mixed-sex, there is a knock-on effect from this. It is customary for those losing a vote in a club to agree to abide by the majority view – that is an underpinning principle of a club, after all, which remains a private community. However, in practice, former men-only clubs admitting women have been known to experience a modest exodus of members dissatisfied by the result – and those members typically go on to join one of the remaining men-only clubs. The result of this has been to tilt the balance of opinion in several of the remaining men-only clubs, to being far more resistant to the admission of women than they might have been before. This explains the ease with which some of the men-only clubs have already secured a rule change confirming their status.
Option 3: Fudging the issue - which no longer appears tenable
There is a third option – though it is not, I would suggest, a particularly sustainable one. It is for a club to “fudge” the issue, and to do nothing, hoping for the best. It might typically happen in the aftermath of a botched attempt to introduce a rule change to admit women, which secures anything between 34% and 66% support, meaning that the motion fails. The result also means that there is not enough of a consensus to confirm the Club as being for men only, either - so there is no clarity in the rules of the Club’s position. While “doing nothing” does not constitute a strategy, it may well be that some clubs see themselves having no other choice for the foreseeable future, given the division of opinion among members.
Leaving the matter simmering unresolved like this seems to me a recipe for near-certain acrimony; and the issue will not go away, as advocates on different sides either hope a little more campaigning will shift the needle in their direction, or hold fast to the “super-majority” quota stopping the Club from doing something they disagree with.
The greatest risk of this course is with a test case – something which had been repeatedly invoked at the Garrick, at least since the intervention of Emily Bendell in 2020, and which Michael Beloff KC’s revised advice specifically warned about. Even the most financially prosperous club is understandably keen to avoid litigation, which can be costly, protracted, and divisive. There has never yet been a test case around this area (since Bendell discontinued her action against the Garrick after the initial Letter of Claim). Yet the risk which Garrick’s members had to grapple with was the near-certainty that sooner or later, under the present state of affairs, just such a case was almost certain to eventually arise. Without clarity, a club in this position risks being a hostage to fortune.
What is the solution then?
I would suggest that it would make sense for clubs in this position to agree (as the Garrick ultimately did) to follow the views of a simple majority – even if it does not hit the 67% (or 75%) super-majority required for a formal rule change. I make no comment here on the rights or wrongs of continuing as a single-sex club versus becoming a mixed-sex club; nor do I argue for imposing anything for which there is no existing appetite among the club’s members. I simply make the point that it seems extremely unsatisfactory for any club to persist with a lack of clarification in this area, when the accompanying risks of costly litigation are so great, in the absence of clarity.
What would this course of action look like? It certainly involves some level of discussion amongst the Club’s own members, as amicably as possible. It would be highly desirable for a club to commission its own legal advice, on the applicability (or otherwise) of these points to their own existing rulebook; and to share that advice, and the instructions given for that advice, with all of their members, to ensure transparency and fairness. This would help ground arguments in legal realities, rather than the potential on both sides for wishful thinking.
I can also foresee how it could be desirable to hold several rounds of voting, among committee and membership alike: some kind of ‘indicative vote’, to see how members intend to vote, would help ground subsequent discussions in whether they are leaning towards remaining men-only, or opening up to women members. A club’s own legal advice will specify whether a rule change is necessary, or whether a simple vote by a simple majority, one way or another, would suffice. In the event of a rule change being required for either outcome, then a degree of “give and take” would be required by both sides – a 67% vote will only be reached if enough people on the losing side agree to abide by the outcome of a simple majority in the indicative vote, and put their own personal preferences aside for the final vote, to give the Club much-needed clarity.
Above all, I think it worth concluding on a point which underpins how this issue plays out across Clubland: a spirit of conciliation is essential in all such debates. Members on both sides – understandably – will have heated passions on the subject. Both sides invariably believe that they are trying to save the very soul of their club, to safeguard it for the future. Vilifying or misrepresenting the other side (or their arguments) is unlikely to succeed in a small, tight-knit community; but it can poison the atmosphere of a once-happy club. Members need to still want to drink and dine with one another at the end of the process. So as well as repeating the cliché to “Play the ball, not the man”, it is essential to the health of any club that these discussions can be held openly, courteously, and with good humour. Members do not like failing to get their own way in their own club: they can pay several thousand pounds a year for the pleasure of membership, which can bring with it an understandable sense that they are entitled to get something for their money. But a member-owned club is not simply a set of services or facilities (even though these things are found within it). A club is above all a community of individuals with shared interests. Its members will only be able to resolve issues like the above, if they can do so amicably.