Nobody sensible believes that judges do not bring their prejudices to work but we, as lawyers, and no doubt the public, expect that judges will make an effort to keep them hidden.
Most judges will have to decide a sex discrimination case or preside over a rape or sexual or domestic violence trial at one time or another in their career. When they do, they may well have to remind themselves and sometimes juries of the position of women in society, and counter gender stereotypes that might otherwise influence the outcome of the case. These stereotypes might be those that associate women with certain forms of work, caring for children or doing “womanly” things (like not going out drinking in cosy clubs in the evening), or gender-related rape myths that blame women for men’s sexual assaults upon them. Judges are supposed to do this “without fear or favour”.
But the publication this week of the names of a number of judges who are members of the Garrick Club casts doubt on the inclination or ability of some of them to keep to this promise. The revelations come as no surprise to many lawyers and, indeed, other judges. Many past and present members of the judiciary are members of the Garrick, and the legal profession has always known this to be the case. From time to time, there are grumblings; some lawyers argue that judges should be prohibited from joining men-only clubs.
Leaving aside gut feeling – the general queasiness at the image conjured up by the words “private gentleman’s club” (whether Spearmint Rhino or the Garrick) – even lawyers sometimes struggle to pinpoint quite what is wrong with them. I am not, as a matter of principle, opposed to single-sex clubs. Women should be allowed to meet without the interruption of men. Lesbians should be able to have their own places in which to socialise and mobilise. Single-sex spaces are important, especially given that women often experience hostility or harassment in mixed-sex environments.
But the Garrick is not an ordinary club, 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. The Garrick is different. 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.
It is not clear how you join the Garrick or, apart from being male, what the criteria are for membership. Its homepage tells the reader that its entry requirements are strict: “It would be better that 10 unobjectionable men should be excluded than one terrible bore should be admitted.” This, we are told, means “the lively atmosphere for which the Club was so well-known in the 19th century continues to invigorate members of the Club in the 21st century”.
Perhaps the more than a third of members who obstructed the efforts of some who sought to have its constitution amended to admit women (a two-thirds majority being required) thought women who might have an interest in joining would not be sufficiently entertaining. Or perhaps they relied on prejudiced ideas about women’s wittiness, competence, or trustworthiness. Or perhaps they simply did not want women, including female lawyers and judges, to enter a space reserved for the powerful. We cannot know. Nor do we know who voted to keep women out. Not that that would be any excuse. Serious dissatisfaction with a club’s rules can easily be dealt with by relinquishing membership. We can take it that those who continue to be members do so content in the knowledge that their professional peers are excluded because of their sex.
This tells us a lot about those whose membership was exposed by the Guardian’s Amelia Gentleman this week: from senior politicians to civil servants. But for judges there is an additional problem. Judging requires the appearance of neutrality. Membership of a club that functions to foster relationships between men at the centres of power, and that bars women from entry as members (though not presumably as cleaners and cooks), sends a message of partiality: a commitment to patriarchy.
The apparent determination by members of the judiciary to hang on to membership means that the criticism that is lobbed at them from time to time is not enough. 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.
Karon Monaghan KC is a barrister specialising in equality and human rights law
