The following article is followed by two letters
from readers in reply and my rejoinder to those letters.
'The Sex Disqualification (Removal) Act 1919
- 60 Inglorious Years'
This year marks the golden jubilee of an Act of Parliament which has virtually proved
a dead letter. Yet as was said in the House of Commons by Sir Edward Pollock, Solicitor
General in the Lloyd George Bonar Law coalition Government which sponsored it, the Act
gave ‘almost a complete measure of relief on the question of sex’: The
Times, November 27, 1919. Using the plainest of words, it satisfied many claims
of the women's movement, long before that label became familiar. In some respects it
went further in emancipating women than does the Sex Discrimination Act 1975, which is
notoriously crammed with exceptions. It probably settled a religious controversy which
still rages with great fury. It remains on the Statute Book.
The Sex Disqualification (Removal) Bill was introduced in 1919 to implement the Government's
general election pledge that following the admission of women to the Parliamentary franchise
the previous year, it would introduce a Bill to remove the remaining legal restrictions
on them. Not convinced that this pledge would be honoured, the Labour Party introduced
its own Bill early in the session. As well as providing that women might hold any civil
or judicial office, the Labour Bill, entitled the Women's Emancipation Bill, enabled
women, like men, to vote at 21 (instead of 30). It also entitled peeresses to sit and
vote in the House of Lords.
To the surprise of the Government, the Women's Emancipation Bill made progress in the
Commons. When, against all expectation, it was given a third reading, the Government
acted. The second reading of its Sex Disqualifiation (Removal) Bill was moved in the
House of Lords by the Lord Chancellor. This was no less a figure than Lord Birkenhead
(formerly F.E.Smith), who might justly if disrespectfully be termed the archetypal male
chauvinist pig. He revealed his sentiments right away. The Bill, he informed their Lordships,
would prove surprising ‘and to many extremely disagreeable’ (35 HL Deb 896).
As finally passed, the Act made detailed provisions about women jurors and civil servants.
As with the Sex Discrimination Act 1975, the detail was for the purpose of limiting the
degree of emancipation. It was unthinkable, for instance that females should be allowed
to participate in trials of the nastier kinds of sex offence. Certain civil service posts
were to be reserved to men. Apart from this detail, and specific provisions about solicitors
(s.2) and admission to universities (s.3), the main thrust of the Act was splendidly
general. In the opening words of section 1 (which the marginal note summarised as ‘Removal
of disqualification on grounds of sex’) it was enacted that:
‘A person shall not be disqualified by sex
or marriage from the exercise of any public function, or from being appointed to or holding
any civil or judicial office or post, or from entering or assuming or carrying on any
civil profession or vocation...’
For good measure, s.4(2) provided that any other enactment, Order in Council, Royal
Charter, or provision should cease to have effect so far as inconsistent with the Act.
It might have been confidently expected that so all embracing a piece of legislation,
expressed in such general terms, would have given rise to much litigation, as did the
Equal Pay and Sex Discrimination Acts of our own day. Yet we find a Court of Appeal judge
remarking in a case nearly 50 years after the Act received Royal Assent: ‘This
is a most important statutory provision, which, so far as I know, has never yet been
considered by the courts’ per Salmon L.J. in Nagle v Fielden [1966] 1
All E.R. 689,700.
Lord Justice Salmon's remark is accurate only if one treats
the Committee for Privileges of the House of Lords as other than a court. In 1922 that
Committee considered a case brought under the Act by Viscountess
Rhondda, which is reported in the law reports, see Viscountess Rhondda's Claim [1922] A.C. 339. Lady
Rhondda, a peeress in her own right by succession to her father, claimed that sitting and voting
in the House of Lords was a ‘public function’ within the meaning of s.1 and
that therefore she should receive a writ of summons. By an elaborate pretence which Lord
Birkenhead said was worthy
of the massive irony of a Gibbon, the Committee for Privileges conspired to ignore the fact that
two years previously the Lords, in considering the Bill, had rejected a Commons amendment
spelling this
out in express words.
In moving the rejection of the amendment, Lord Birkenhead had used an argument which
recalled the preamble to the Parliament Act 1911 and reads strangely today. He said that
although hopes had been entertained in the past which had proved delusive, it was the
sincere intention of the Government to introduce proposals with the object of reforming
the second chamber. Once more his male chauvinism peeped out. Their Lordships, he said,
approached those who were good enough to propose the amendment with the melancholy words
morituri te salutamus (we who are about to die salute you). If the Lords were to be abolished
he thought he would rather perish in the exclusive company of members of his own sex
[Laughter]: The Times, Nov.12, 1919.
It was soon clear that the Committee for Privileges, remembering (but not mentioning)
the Commons amendment and its fate, were determined to reject Viscountess Rhondda's claim.
Naturally, it was Lord Birkenhead who made the leading speech. The patent for the Rhondda
peerage expressly granted a seat in Parliament only to male holders of the title. The
general words of s.1 could not be held to cover so important a matter. If Parliament
had intended peeresses to sit and vote in the House of Lords it could easily have said
so. This it had failed to do. The Committee divided by 22 votes to 4, and the claim was
rejected.
The only other reference to the Act in the law reports occurred in 1966 in Nagle
v Fielden, already mentioned. Even this concerned an interlocutory matter only,
so there appears never to have been a substantive decision by a court of justice. The
plaintiff, Mrs Nagle, sued the Jockey Club for a declaration that their practice of
refusing to licence a trainer if she was a woman was illegal and void. Mrs Nagle also
claimed an injunction restraining the Jockey Club from implementing their practice
in her case. Surprisingly, the statement of claim was struck out as disclosing no cause
of action. This order (plainly incorrect) was reversed on appeal.
Mrs Nagle relied mainly on the doctrine of restraint of trade, but the Sex Disqualification
(Removal) Act is mentioned an all three judgments. Lord Denning M.R. thought that the
training of horses might not be a ‘vocation’ within s.1, and did not consider
whether it was a ‘profession’. The other two judges were similarly doubtful.
The point never had to be decided as the case was settled.
So that is the total history of the Sex Disqualification (Removal) Act 1919. If Acts
of Parliament possessed feelings, this one would be suffering extremes of mortification
from being persistently cold shouldered throughout its life of 60 years. Should you search
for it in Halsbury's Statutes, you will run it to earth in the title Juries. In his wide
ranging survey of sex discrimination and law, given before the advent of the Sex Discrimination
Act 1975, Lord Scarman mentions it not at all (Women and Equality before the Law, the
1971 Fawcett Lecture). The 1975 Act leaves it in force, but says nothing about it.
It is fruitless to speculate about why the 1919 Act has been ignored. More interesting
is the question whether there is still any kick still left in it. Might it be one of
those who come to life only in old age? Could it be used, for example, to get round some
of the restrictions in the Sex Discrimination Act 1975?
Section 6 (1) of the 1975 Act renders it unlawful for an employer to discriminate against
a woman in the arrangements he makes for the purpose of determining who should be offered
any employment (eg selection for interview or drawing up a short list). It also renders
unlawful the refusal or omission to appoint a woman on the ground of her sex. There are
many cases however, where the 1975 Act expressly disapplies these rules. They do not
apply, for example, where being a man is a genuine occupational qualification for the
job (s.7). Since the 1919 Act does not contain corresponding restrictions can it be prayed
in aid by a woman who seeks a job for which a man is usually thought necessary? There
seems no reason why not.
A similar argument applies elsewhere. For example, s.19 of the 1975 Act states that
s.6(1), and the other anti discrimination provisions, do not apply to employment for
purposes of an organised religion where the employment is limited to one sex so as to
comply with the doctrines of the religion or avoid offending the religious susceptibilities
of its followers. Again, there is no corresponding exception in the 1919 Act.
Finally, it may be asked what is the effect of the 1919 Act on the religious dispute
referred to at the beginning of this article? This is of course the controversy over
the ordination of women by the Anglican Church in Britain, the Church by law established.
It is surely beyond dispute that the celebration of holy communion in the local parish
church is a ‘public function’. Plainly therefore to prevent a woman priest
ordained by an overseas Anglican church from performing the celebration is contrary to
section 1.
What though of the rule still enforced by the Anglican Church
in Britain, that prevents a woman from being ordained, or of course from becoming an
ordination candidate? The
reference to a ‘public function’ would seem to apply here too. Or one may
look at the words removing the disqualification of women ‘from entering or assuming
or carrying on any civil profession or vocation’. There is some ambiguity here.
Is ‘vocation’ qualified by ‘civil’? One may talk of civil professions,
but one does not normally talk of civil vocations. The word vocation literally means
calling, and the calling is usually understood to be by the Almighty. The pre eminent
vocation or calling is of course the priesthood.
If on the other hand the reference is to be read as being
to a ‘civil vocation’ does
this exclude the priesthood? There seems no reason why it should. The Act was passed
at a time when Parliament was accustomed to legislate directly for the Established Church
(the prolonged Parliamentary disputes over the 1928 prayer book were less than ten years
ahead). The word ‘civil’ can be contrasted with ‘ecclesiastical’ just
as it can with ‘military’, ‘criminal’ or ‘political’.
It is clear in this context however that the contrast intended is with ‘judicial’.
So the conclusion, no doubt surprising to many, is that in Britain for the past 60 years
it has been unlawful to prevent women becoming Anglican priests, or officiating as such.
The wrangles of Synods and Church Assemblies have been in vain therefore, and pointless.
The situation, as Lord Birkenhead would undoubtedly have put it, is worthy of the massive
irony of a Gibbon.
F A R Bennion
129 New Law Journal (8 Nov 1979) 1088.
-----------------------------------
Sex Disqualification
Dear Madam,
The history of the Sex Disqualification (Removal) Act 1919, as related by Francis Bennion
(NLJ, November 8, p 1088), is not absolutely complete. The Act was canvassed in the Preamble
to the well-known Guardianship of Infants Act 1925, in the following words:
“WHEREAS Parliament by the Sex Disqualification (Removal) Act, 1919 and various
other enactments, has sought to establish equality in law between the sexes, and it is
expedient
that this principle should obtain with respect to the Guardianship of Infants and the
rights and responsibilities conferred thereby: Be it therefore enacted by the King's
Most Excellent Majesty {etc, etc] as follows:-”
What followed was s 1 which embodied the “paramountcy principle” by which
the court was to decide any question relating to the custody or upbringing of an infant
or the administration of any property belonging to or held on trust for an infant, or
the application of the income thereof, by reference to the welfare of the infant and
not to competing claims of the father and mother.
The fact that the 1925 Act described itself in these terms as an “anti-sex discrimination” measure
and referred expressly to the father and the mother of the infant appears not only to
question the belief held widely today, that. protection of children was the only object
of the enactment, but also to; cast doubt upon the decision of the House of Lords in
J v J [1969] 1 All ER 788, that the paramountcy principle: was to apply as between the
parents - on the one hand - and third parties (in that case foster-parents) - on the
other.
Yours faithfully,
PETER SNOW
Teddington
129 New Law Journal (13 Dec 1979) p 1240
---------
Dear Madam,
Mr Bennion suggested (NLJ, November 8, p 1088) that the Sex Disqualification (Removal)
Act 1919 made the Sex Discrimination Act 1975 unnecessary. This would not appear to be the case.
The 1919 Act was short and very restricted in scope. It was merely intended to prevent women
from being disqualified automatically from being appointed to a job or to prevent their appointment
being void on the grounds of their sex.
Unlike the 1975 Act, the 1919 Act's intention was not to give women any right to be considered
on equal terms with men as being suitable candidates for a job, nor was the Act judicially interpreted
in such a way in the few cases ever brought under it. Mr Bennion omitted to mention an early one
of these, which was the case of Price v Rhondda Urban Council [1923] 2 Ch 372. This was a case
brought by a married woman teacher on behalf of herself and 57 others, who unsuccessfully attempted
to use the 1919 Act to prevent the local education authority from dismissing them on the ground
that they were married. The early 1920's was a time when, as now, there were large numbers of
newly qualified teachers who had just left training college and who were unable to find jobs.
The Rhondda Urban Council decided to ease the situation by dismissing all the married
women teachers in their employment who were to make way for their younger unemployed, albeit inexperienced,
colleagues. Mrs Price, who had been employed as a teacher for nearly 25 years failed to persuade
Eve J that the 1919 Act could be used as a means of invalidating her dismissal. Moreover, in his
view, it would have been “an absurdity” to conclude that the Act could: be used to
prohibit an employer from making a job available only to members of one sex. Clearly, Eve J would
have thought it equally absurd to suggest-that the 1919 Act prevented the Anglican Church from
barring women from ordination.
Fortunately for married women teachers today, local education authorities cannot use
the method selected by the Rhondda Urban Council for easing the problem of unemployed student
teachers. The Sex Discrimination Act 1975 prohibits discrimination on the ground not only of sex-but
marital status in the field of employment. It also sets out to achieve what the 1919 Act so conspicuously
failed to do. Whereas the 1919 Act simply removed a disqualification, the 1975 Act attempts to
remove a discrimination.
Yours faithfully,
J E S FORTIN (MRS)
Kings College, London
129 New Law Journal (13 Dec 1979) pp 1240-1241
-----------------------------------
130 NLJ (3 Jan
1980) 22
Doc. No. 1980.030
Sex Disqualification (Removal) Act 1919
I am grateful to Peter Snow and Mrs Fortin (13 December 1979) for
supplementing the information contained in my article on the Sex Discrimination (Removal) Act
1919 [1979.005]. Mrs Fortin is
however mistaken in saying that I suggested the 1919 Act made the Sex Disqualification
Act 1975 unnecessary. I suggested no such thing, it would have been very foolish of me to do so.
What I
did say, and is undoubtedly true, was that in some respects the 1919 Act went further
in emancipating women than does the 1975 Act. I detailed these with great care in the concluding
portion of the
article, and I invite Mrs Fortin to look again at this. She will find that what I say
there is not only right but important for those fighting in the women's movement. Incidentally,
Mrs Fortin
is also mistaken in claiming as an advantage of the 1975 Act that it ‘prohibits discrimination
on the ground not only of sex but of marital status in the field of employment’. The 1919
outlaws disqualification generally on grounds of marriage as well as sex.
What people concerned with women’s liberation need to realise is that the 1919 Act is still
a fully operative Act of Parliament. There is no doctrine of desuetude applying to it. Moreover
its interpretation is not subject to any crippling decisions by the House of Lords or even the
Court of Appeal.
Judicial attitudes are (one hopes) more enlightened now than they were in the 1920s.
There is some prospect therefore a that modern judges would give the wide words of the 1919 Act
the meaning they plainly bear.
I am told that there is a case awaiting report in which the Employment Appeal were asked
to apply the 1919 Act to a woman excluded by one of the many exceptions contained in the 1975
Act. That shows that some people at least are alive to the possibilities offered by the 1919 Act.
The history of its ineffectiveness is a disgraceful story of prejudice and inertia triumphing
over reform. There is still time to redeem this, even though the absence of remedial machinery
from the Act is undoubtedly a serious drawback. An action for a declaration seems to be the only
method by which the Act might be applied directly, though the fact that breaches .of it are unlawful
can be turned to account from a defensive point of view.
