The Garrick has voted to admit women, but it’s still not fair

Last night, an exclusive male-only, gentleman’s club – the Garrick Club – voted to admit women to its membership, following 193 years of exclusion. More than 40% of members voted to maintain the ban, but a series of public rows – including threats from high-profile members including Sting and Stephen Fry to resign if the motion failed – made the change seem inevitable.

But questions remain over the influence these exclusive organisations wield. The debate over the Garrick’s policy on female members followed the leak of the club’s membership list, which revealed a roll-call of the British establishment. Alongside the king, the deputy prime minister and the head of the civil service, members include a Supreme Court judge, five Court of Appeal judges, eight High Court judges, and about 150 KCs. Can the connections made behind closed doors by such senior legal figures be squared with a justice system which is truly fair?

These questions of fairness saw a High Court judge removed from a case last month. Sir Johnathan Cohen was due to oversee a case concerning a dispute between a mother and father over their son’s care. The woman accused the man of domestic abuse, and controlling and coercive behaviour. But both the father in the case and the judge were members of the Garrick – with the father a “regular visitor”. The woman asked for Cohen to be removed as the judge in the case, saying she would feel “prejudiced” if he were to hear her case.

Rules against bias are essential to making sure that the law operates fairly. Importantly in English law, it is not enough for decision-making to actually be fair and legitimate. Perception is as important as reality. As summarised by Lord Hewart, “justice should not only be done, but should manifestly undoubtedly be seen to be done”. When it comes to bias, appearances matter.

When applying the rule against bias, courts look through the eyes of ordinary people, the “fair-minded and informed observer”. Courts ask whether such a person would consider there to be a real possibility or danger of bias. There is no need to show that a decision-maker was actually biased, or even that it was likely. This makes sure that justice is conducted in a way that ordinary people consider to be fair. As the Court of Appeal said in Locabail, this provides the “most effective guarantee” of the fundamental right to a fair hearing.

In this case, the mother argued that because both father and judge were members of the Garrick, “the fair-minded and informed observer, having considered these facts, would conclude that there was a real possibility of bias should Sir Jonathan Cohen determine the appeal”.

The High Court agreed that Cohen should be removed from the case, “solely on the basis that, Sir Jonathan Cohen is a member of the Garrick Club, the father was a regular visitor to the Garrick Club, the father’s ex-employer is a member of the Garrick Club.”

The chairman of the Bar Council, Sam Townend KC, has already warned barristers and judges that membership of “closed doors and exclusionary spaces” like the Garrick could create an “unfair advantage” and “it is vitally important that we retain the trust and confidence of the public” – even if “for now” membership remains a decision for individuals.

The Garrick may have finally voted to admit women, but it is crucial for our democracy that we can trust the justice system to operate fairly. Exclusive organisations where judges regularly brush alongside the rich and powerful – and do so in the shadows –  give the appearance of bias. It’s time to ask whether judges enjoying cosy chats behind closed doors is compatible with the principles of our democracy at all.