Garden Court’s identity crisis

A heavyweight chambers that prides itself on a commitment to diversity and ‘defending human rights’ is in the invidious position of having been found to have bullied a black lesbian barrister.

An Employment Tribunal found last week that Garden Court Chambers victimised and discriminated against Allison Bailey (pictured below) – one of its own members – for expressing her gender-critical beliefs and her view of the charity Stonewall’s role in promoting gender self-identity. Bailey was awarded £22,000 damages, including £2,000 in aggravated damages.

In 2018 Bailey objected to her chambers joining Stonewall’s Diversity Champions programme and tweeted concerns about the organisation. This prompted complaints, including one from Stonewall.

The set had no social media policy, but despite not having read Bailey’s tweets or the complaints about them, the heads of chambers agreed to post on Twitter a statement that it was investigating her.

The chambers took advice from the Bar Council but withheld Bailey’s explanation of her views, consequently finding that two of her tweets were likely to have breached professional rules.

The tribunal said: ‘Faced with a Twitter storm on gender self-identity, they picked sides. The heads [of chambers] chose to prefer the view that the claimant was in the wrong and that her tweets should be investigated, because there was a lot of opposition to the views expressed in them.’

Garden Court’s motto is ‘Do right, fear no one’. Its website boasts that it is ‘dedicated to fighting your corner, no matter how formidable the opponent might seem’.

This resolve appears to have been absent when it came to standing up for one of its own who had expressed views regarded as wholly unacceptable by Stonewall, an organisation described by the tribunal as a ‘well-known radical group’.

Evidence from the then heads of chambers did not augur well. The tribunal found that they did not give the matter the attention it required because they were ‘preoccupied’ with other problems. The set had entered into a contract for a software system, which the head of IT would not implement, and for which they were still bound to pay £100,000. The week before, the set’s chief executive had resigned. 

Heads of chambers relied on reports from their marketing manager and allowed themselves to be led by a small number of barristers with strong views concerning the gender versus sex debate.

Had they paused to consider a ‘neutral approach’, the tribunal said, they might have concluded – as an initial internal review had done – that there was ‘nothing to investigate’ and that the complaints were merely statements of opposing views.

Other sets will have a degree of sympathy for Garden Court, doubtless thinking ‘there but for the grace of God’. Yet there was certainly animus towards Bailey, evidenced by a marked contrast in language used about and to her, compared with the language used towards a male chambers researcher who said he found Bailey’s comments upsetting. The tribunal noted the lack of sympathy shown to Bailey and a failure to heed her reports about death threats.

A side from the failure of a set hosting eminent QCs to adhere to equality laws, there was little evidence of contrition from Garden Court in public statements after the ruling. These referred only to the elements of the claim that Bailey lost. There was no apology and the set has said it is considering an appeal.

Two other cases, before the bar’s disciplinary tribunal, have also reflected badly on the set recently. Two members were sanctioned for being rude to a Crown court judge. An impact statement from the judge, given to the tribunal dealing with one of them, said court staff had overheard the pair say ‘Garden Court Chambers will take her [the judge] down’.

These are difficult times for Garden Court. Twenty years ago it was counted among the top tier of human rights and civil liberties sets. Since then Matrix Chambers has knocked it off its perch and – with Doughty Street – recruited the cream of that field.  

Laudably, most of Garden Court’s work is publicly funded, but falling legal aid rates have forced expansion to 200 members, making it the biggest set in London. Arguably, it has become too big. Garden Court’s future will depend on the response to the judgment from students, clients and civil liberties solicitors. With some reputation management advice it will survive and continue to operate in the second division of chambers.

Yet the case also raises questions about the unwillingness of many other human rights lawyers to speak up for Bailey and others who suffer adverse attention for their gender-critical views. Bailey lost her claim against Stonewall for inducing, instructing or causing some of Garden Court’s actions. But the case has certainly thrust Stonewall’s Diversity Champions scheme back into the media spotlight, after the Ministry of Justice quit the scheme last summer. The law firms who are members of the scheme are standing by Stonewall; at least, there is no evidence yet to suggest otherwise.

Catherine Baksi is a freelance journalist and qualified barrister