Written by Laura Vignoles, Associate Barrister, originally as part of Kingsley Napley’s International Women’s Day blog series.
In my opinion, it is sufficient to rest this case upon the inveterate practice of the centuries that, ever since attorneys as a profession have existed, women have never been admitted to the office, and, in my opinion, that shews what the law is and has been” – Lord Justice Swinfen Eady
Fems ne poient estre attorneyes” – The Mirror of Justices (14th Century law textbook)
What is the basis for a legal ruling that a woman is not a person for the purposes of a statute?
The starting point is a 14th century law textbook which states that women cannot be lawyers. Then, a 16th century scholar, Edward Coke, quotes that textbook approvingly but without any other authority. Three hundred years later, three justices of the English Court of Appeal refuse to interpret a statutory provision to encompass women, on the basis that “no woman has ever been an attorney-at-law.”
The year was 1913, and the case was Bebb v The Law Society.
Gwyneth Bebb was born in 1889. She studied jurisprudence at St Hugh’s College, Oxford, and received first-class marks in her examinations, but at that time women were not awarded degrees and so she did not formally graduate. In 1913, along with Karin Costelloe, Maud Ingram (later Maud Crofts), and Frances Nettlefold, Bebb applied to the Law Society to sit the preliminary examinations, with a view to becoming a solicitor. The Law Society returned her fee, informing her that if she presented herself for examination, she would not be allowed to take it, since as a woman she could not be admitted as a solicitor of the Supreme Court.
Bebb and her fellow applicants brought an action against the Law Society. In her suit, she asked for a declaration that she was a “person” within the meaning of the Solicitors Act 1843. The case was dismissed by the High Court in July 1913 and so Bebb went to the Court of Appeal, which heard her case in December of 1913.
The Solicitors Act 1843 came into force as part of a wider process of greater regulation of the legal profession.
Section 2 of the Solicitors Act provided that “No person shall act as an Attorney or Solicitor […] unless such Person shall after the passing of this Act be admitted and enrolled and otherwise duly qualified as an Attorney or Solicitor, pursuant to the Directions and Regulations of this Act.”
Section 48 of the Solicitors Act provided that “every word importing the Masculine Gender only shall extend and be applied to a Female as well as Male […] unless in any of the Cases aforesaid it be otherwise specially provided, or there by something in the Subject or Context, repugnant to such Construction”.
The issue in Bebb’s case therefore, was whether there was any reason why the word “person” in Section 2 could not be interpreted to include women.
Counsel for Bebb, Lord Robert Cecil KC, argued that by virtue of these provisions, women had a right to be admitted unless there had been an absolute rule of law disqualifying them; he submitted that there was no such statute. By contrast, women had acted as attorneys for their husbands in the reign of the fourteenth-century King Edward III (in the sense of acting on their behalf, presumably because their husbands were abroad, fighting the Hundred Years’ War); women were now permitted to practise as solicitors overseas; the recent trend of legislation had been to open opportunities to women. Counsel concluded, “There is no reason in the nature of things why women should not practise, and the plaintiff is a particularly capable person”.
The justices disagreed (although they did recognise the ability of Gwyneth Bebb). The statute could not be interpreted to include women, despite what it said in plain text, because women had never been allowed to be attorneys. There was not enough in the statutes to show that the legislature intended, by their provisions, to open the profession to women.
The message? That’s just the way it is.
The Master of the Rolls, Cozens-Hardy, went first. He considered that there was nothing in the Solicitors Act which destroyed or removed the existing disability (used here in the sense of a disqualification or prohibition) of women to practise as solicitors. The question in the case, therefore, was whether such a prohibition was in place at the time the Solicitors Act was passed. His conclusion; that there was. No woman had been an attorney-at-law, or had applied or attempted to be an attorney-at-law, and that this was the “long uniform and uninterrupted usage” which established a principle at common law that a woman could not be an attorney-at-law. It was not for the courts to legislate on the matter, but for Parliament.
Lord Justice Swinfen Eady followed. He set out a history of the regulation of the profession (fascinating but beyond the scope of this article). Like his brother judge, he remarked that “no instance of a woman attorney has […] as far as it is known, ever existed” and “From that time continuously to the present, there is no instance of any woman being an attorney” and this raises a presumption of what the law is on the matter. He was satisfied to rest his interpretation of the Solicitors Act upon “the inveterate practice of the centuries”. Like the Master of the Rolls, he concluded that “if there is to be any change from the ancient practice, it is a change which must be effected by Parliament, and the law must be altered”.
There was to be no dissent from Lord Justice Phillimore. It was the justices’ function to declare the law, and common law was to be determined by “what we ascertain to be the received inveterate usage of the country”. Again, the conclusion was ‘that’s just the way it is!’ There had never been a suggestion that the office of attorney was one which was open to a woman. Not only that, but there was an additional obstacle to female attorneys: married women were not at absolute liberty to enter into binding contracts, and so would be “unfitted either for entering into articles or for contracting with their clients”. Of course, spinsters were not limited in that way, but “it would be a serious inconvenience if, in the middle of her articles, or in the middle of conducting a piece of litigation, a woman was suddenly to be disqualified from contracting by reason of her marriage”.
It is hard to discern, at a century’s remove, what the justices felt about whether women should be admitted into the profession, even as they concluded that they could not. Lord Justice Phillimore stated that he would not express an opinion one way or another as to what the law should be on this subject. The Master of the Rolls rather tartly remarked that, “in point of intelligence and education and competency women – and in particular the applicant here, who is a distinguished Oxford student – are at least equal to a great many, and, probably, far better than many, of the candidates who will come up for examination.”
Cynical minds may wonder whether the justices would have found a way to interpret the Solicitors Act in Gwyneth Bebb’s favour, if they had truly wanted to do so. Others may respect their dedication to declaring, not making the law. Thankfully, it was only a further five years before the Sex Discrimination (Removal) Act 1919 declared that “A person shall not be disqualified by sex or marriage from […] entering or assuming or carrying on any civil profession or vocation, or admission to any incorporated society…”, spurred in part by the publicity arising from this case (as well as the upswell in awareness of women’s rights from the Suffrage movements and the role played by women in the Great War). In 1922 the first women, Maud Crofts among them, passed the Law Society examinations, and on 18 December of that year, Carrie Morrison became the first woman to be admitted as a solicitor in England.
Sadly, Gwyneth Bebb was not amongst them. She had died the year before, aged only 31, from complications arising from her second pregnancy.
So where are we now, reading the judgment in 2018? A married woman can now enter into contracts of course, and a firm like Kingsley Napley can have a partnership which is 52% female. On the other hand, as in Bebb’s case, the higher courts continue to defer to Parliament on controversial and uncontroversial matters alike, which leaves many without recourse until the slow machinery of the legislature turns its attentions to their particular cause.
However, there has been a dramatic change from the position in 1913, as a result of the Human Rights Act 1998 (“HRA”). Under s.3 and s.6 HRA, primary and subordinate legislation must, so far as it is possible to do so, “be read and given effect in a way which is compatible with the Convention rights”. If Gwyneth Bebb were to bring her suit today, she could rely on Article 14 of the Convention, which prohibits discrimination on the basis of sex, and she would be in a stronger position to argue that women are, in fact, “persons”, for the purposes of the Solicitors Act.