With the forthcoming centenary of the Sex Disqualification (Removal) Act 1919, uppermost in the memory of lawyers is the case name of Bebb v Law Society. But why is it important and of what should it remind us?
The facts of the case are straightforward. In December 1912 Gwyneth Bebb, Lucy Frances (‘Nancy’) Nettlefold, Maud Ingram and Karin Costelloe applied to the Law Society to sit the preliminary exam, with a view to becoming articled clerks and ultimately solicitors. The Law Society returned their fees, informing them that if they turned up for the exam they would not be admitted because they were women and so could not be admitted as solicitors. Like Bertha Cave before them and Helena Normanton after, they decided to test this decision by an appeal. However, the Bebb litigants went further and tested that refusal in a court of law.
The trial began on 1 July 1913 before Joyce J. He had been a judge at Cave’s House of Lords tribunal appeal against Gray’s Inn’s refusal to admit her. Bebb was represented by Lord Buckmaster KC, who would in February 1919 introduce the Barristers’ and Solicitors’ Bill, proposing that women be admitted to the legal profession. This bill failed due to the introduction of the Sex Disqualification (Removal) Bill in July of that year.
At trial, Buckmaster argued that women could be admitted as solicitors because of s. 48 of the Solicitors’ Act 1843, an interpretation section which provided that words importing the masculine gender extended to females ‘unless it be otherwise specially provided or there be something in the subject or context repugnant to such construction’. This argument was rejected and Bebb lost.
While the legal profession may have feared change and competition, the women had much support. For example, John Waller Hills MP and Lord Wolmer, supported by Lord Robert Cecil, introduced to parliament on 9 July 1913 the Legal Profession (Admission of Women) Bill, which was defeated. In debate Wolmer asked the then prime minister Asquith whether his attention had been drawn to the decision in Bebb; and whether he would grant facilities for Wolmer’s bill. Asquith politely declined.
Bebb, in particular, demonstrates the hostility women had to suffer in order to achieve formal equality and the reluctance of the legal profession to admit women
Represented by Lord Cecil, Bebb appealed to the Court of Appeal and failed again. Cozens-Hardy MR, Swinfen Eady LJ and Phillimore LJ upheld Joyce’s decision that women did not have the right to become solicitors, let alone sit the preliminary exams. They decided unanimously that before the passing of the 1843 Act, women were, by the common law, under a general disability by reason of their sex and so unable to become solicitors. This ‘disability’ was proved by inveterate usage. It was, they said, for parliament to change the law.
This judgment is just seven pages long, yet continued a long and tight restriction on women’s rights. Cozens-Hardy was adamant that women were under a common law disability set out by legal writer Lord Coke. Coke had referred to the Mirror of Justice, a medieval treatise which stated: ‘The law will not suffer women, nor infants or serfs’ to the legal profession. He accepted that the Mirror was ‘not, a work of the highest authority’ but trusted Coke’s opinion. Agreeing, Swinfen Eady commented: ‘In my opinion, it is sufficient to rest this case upon the inveterate practice of the centuries that, ever since attorneys as a profession existed, women have never been admitted to office, and, in my opinion, that shews what the law is and has been.’ Phillimore dealt with another ‘difficulty’. If a woman were to be admitted as a solicitor and subsequently married she would be ‘unfitted’ for entering into articles or for contracting with clients, because she was disqualified by reason of her marriage. These arguments demonstrate a history not only of misogyny, but also fear of competition and change.
This litigation is important for many reasons. Bebb was not a lone agent but part of an organised campaign which included Cave, Normanton and many other women and men. Specifically, she was one of a group of four, including Nettlefold, Costelloe and Ingram. This campaign was eventually successful and the legal profession was opened up to women. The first world war diminished the campaign, but did not stop it – Buckmaster’s continued presentation of bills before parliament demanding women’s entry is evidence of this. The Sex Disqualification (Removal) Act 1919 was not an altruistic act by the legal establishment because of women’s war work; rather, it was a response to this fierce campaign. Bebb, in particular, demonstrates the hostility women had to endure in order to achieve formal equality and the reluctance of the legal profession to admit women. The past explains the present. Change can be slow and difficult, but, as in Bebb, change is achievable. In August 2017 women made up 48% of all lawyers in law firms, but just 33% of partners. Like Bebb, we must be resilient in pressing for change.
Bebb is a heroine of the drive to open the solicitors’ profession to women. Many of us identify with her because of her bold campaign, desire to succeed in law and her status as a mother (she died on 9 October 1921, two months after delivering her second child, following birth complications). Yet her life should not be romanticised. A clergyman’s daughter, she was a well-connected, privileged woman who studied jurisprudence at Oxford (a degree not useful for a woman who needed to work to support herself). We need to remember that there are no ‘saints’ or ‘sinners’ in this history, only multifaceted individuals doing the best they could as events unfolded.
This article was commissioned for the Gazette’s Women in the Law section
In June the Law Society is holding a two-day symposium: the power of gender equality to transform the business of law
Dr Judith Bourne is programme director for law at St Mary’s University, Twickenham, London
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