1979.005 'The Sex Disqualification
(Removal) Act 1919 - 60 Inglorious Years' 129 NLJ 1088
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.
