PUBLIC NOTARIES: ABOLITION OF SCRIVENERS' MONOPOLY (Hansard, 22 June 1999)

§ Mr. Peter Brooke (Cities of London and Westminster)
I beg to move amendment No. 94, in page 27, line 36, at end insert— '() No person shall take or use any name, title or description implying that he is certificated as a notary by the Incorporated Company of Scriveners of London unless he is qualified to practise as a Scrivener notary in accordance with the rules and ordinances of that Company. () A person who contravenes the preceding subsection shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale'. I immediately declare an interest as a former client of two firms of notaries which, prior to the Bill, were among those to enjoy the central London monopoly. In 1964, I employed the first in Portuguese when I was married by proxy in Brazil. A third of a century later, I employed the other in Spanish when I was a trustee of an archaeological-ecological project in the Andes in Peru. That said, the hour obliges me to speak telegraphically.
My interest in this debate is a constituency one, but in more senses than one. My hon. and learned Friend the Member for Harborough (Mr. Garnier), now the shadow Attorney?General, on which I richly congratulate him—if the Parliamentary Secretary, Lord Chancellor's Department does not rule me out of order—served as a harbinger of my speech when he spoke on the subject in Committee. I am grateful to the Parliamentary Secretary for having written to me on the strength of that speech.
I apologise to right hon. and hon. Members who may have been caught in the crossfire between two of my constituents, the Association of Solicitor Notaries of Greater London and the Incorporated Company of Scriveners of London, although members of the former have acknowledged to me that they have done most of the firing, some of which, including one inaccurate allegation about myself, has been mildly disobliging. The most vehement address, admittedly from someone who is not my constituent, has asked hon. Members to vote against any amendment that I might table, whatever its terms, which seems—I remark neutrally—an eccentric index of notarial professionalism.
The issue of the monopoly came up last year during consideration of the Competition Bill, provoking the Lord Chancellor's Department into accelerated consultation. I do not quarrel with the Lord Chancellor's conclusion, but I hope that he would not quarrel with my observation that the scale of the consultation was limited and that, judging by the parliamentary answer given by the then Minister of State, Lord Chancellor's Department on 2 March, those who were consulted did not include the users of notarial services in my constituency. It was because the consultation was slenderish that I tabled the amendment.
The amendment draws attention to the specialist role of the scrivener notaries, who have long had an interface with continental law; so much so that the society was admitted to the International Union of Latin Notaries at a ceremony in Buenos Aires last September—the first body in the world from a common law jurisdiction to be admitted to the union, which represents something of a triumph for the United Kingdom. The company sets similar admission requirements to those of its European counterparts.
1057 Like many livery companies, the Worshipful Company of Scriveners has been the guardian of the art and mystery of its calling and has played a notable part in education in the profession. The faculty office of the Archbishop of Canterbury, discharging a responsibility in the profession that goes back to legislation in the reign of Henry VIII—an era that coincided with the alternative reign of Cardinal Wolsey—has made much use of the society in the devising, preparation and marking of notarial examinations. It is an irony that in that regard the society may have worked itself out of a job, because examining is passing into other hands and clause 46 will likewise remove it from the role of regulation in my constituency and more widely in central London.
The society's professional expertise has been recognised by the Lord Chancellor's Department which has expressed the view that, if its members have a professional edge, they will be able to demonstrate it in the marketplace. Branding is a reasonable challenge to the society, including perhaps the development of a kite mark, but the world outside—including Europe—has for centuries associated notarial activity in the City of London with the scrivener role, and it is therefore important that the definition and significance of that role can be protected against anyone seeking to arrogate to themselves the renown of scriveners by borrowing the name without justification or, in particular, membership of the company; if not, continental clients may cease to turn to London for those skills.
I said that I did not argue with the Lord Chancellor's conclusion. Ironically, the competition that he is ushering into central London in this regard may be matched by competition provided by the society's member firms outside central London, the society having hitherto felt that its role as a regulator in central London precluded it from competing outside. All would thus be winners, including clients of the various firms.
I hope that the Solicitor-General will indicate that he understands that the strength of the City of London is its multi-layered resource of skills and that that cannot be preserved if, in promoting competition through an afterthought to the Bill—as I am sure he will acknowledge—one risks tarnishing the family silver by removing the reasonable, traditional and honourable hallmarks of quality. The provision in amendment No. 94 should be welcomed as a protection for users. It in no way impedes the legitimate provision of notarial services at any level or description in the City or elsewhere.

§ Mr. Grieve
I welcome amendment No. 94, because it both meets the issue that the Lord Chancellor was trying to address in removing the monopoly, which appears to be archaic and unnecessary, but at the same time provides some measure of protection to the Incorporated Company of Scriveners in maintaining its identity in so far as the marketplace wishes that identity to be maintained.
The information provided by the Incorporated Company of Scriveners suggested that there are different roles for the notary public and the scrivener notary. In those circumstances, there is a clear entitlement for that distinction to be protected in their titles. I hope that the Government will accept amendment No. 94 because it appears to satisfy the company's just desire that people should not be misled about the different roles.

§ The Solicitor-General
It is always a pleasure to listen to the right hon. Member for Cities of London and Westminster (Mr. Brooke) and to learn a little more history, both generally and about the Brookes. However, the Government will resist the clause. I should explain briefly the background to the issue as it may not be familiar to every hon. Member.
Notaries authenticate certain legal documents, mainly for use abroad, by signing and sealing them. They may also prepare legal documents for use abroad, undertake conveyancing and probate work, translate foreign legal documents, administer oaths and take affidavits.
The Incorporated Company of Scriveners currently holds a monopoly over notarial work in the City of London and the surrounding three miles. Clause 46 will end that restrictive practice and, we hope, increase competition.
I have three general points to make in relation to the amendment. First, I emphasise that the Government's proposals go no further than abolishing the monopoly. They will not prevent notaries from being members of the scriveners' company if they wish, nor will they prevent members of that company from offering a competitive service compared with other notaries. There will be nothing to prevent notaries from advertising their adherence to the company, if they believe that that is an assurance of quality to the public. Those clients who want the specialist services that scrivener notaries provide will continue to be able to obtain them.
Secondly, I am not convinced that the public could be protected only by the creation of a new offence. Due to the specialist nature of the notarial work, scriveners' clients are not an uninformed group. They include financial and banking institutions and other large commercial organisations. If such clients had any doubt about whether someone was a scrivener notary, it would be open to them to check with the incorporated company.
Moreover, there are existing safeguards for the public against those who seek to misrepresent their position. I make particular reference to section 14 of the Trade Descriptions Act 1968, which covers false or misleading statements as to services. One of the leading cases under that section is Queen v. Breeze, which involved a person claiming to be an associate of the Royal Institute of British Architects. That was not true, and the Court of Appeal found that an offence had been committed under the 1968 Act; so the incorporated company may be able to take advice on the protection afforded by that section.
My third general point may be of interest to the House. The titles of "barrister" and "legal executive" are not protected. Under the Solicitors Act 1974, there is an offence similar to the one proposed. It covers people who pretend to be solicitors. However, it applies generally to solicitors, not to any single group. It does not apply, as would the amendment, to a special group of notaries.
Finally, there is no hard evidence that non-scriveners provide any lesser service than scriveners. The Archbishop of Canterbury's faculty office oversees the entire notarial profession and has made it clear that all notaries are qualified to do all notarial acts. The scriveners' monopoly is geographical and limited to certain areas of London. I therefore urge the right hon. Member for Cities of London and Westminster to withdraw the amendment.

§ Mr. Garnier
I seek clarification from the Solicitor-General. Did he say that section 14 of the Trade 1059 Descriptions Act 1968 protects members of the company as a matter of law, or simply that they should take advice about whether it does? I think that we are entitled to the Solicitor-General's opinion.

§ The Solicitor-General
I give advice to the Government, not to private individuals. However, I urge the society to examine that section of the 1968 Act closely, as its authority bears directly on the matter raised.

§ Mr. Grieve
The Solicitor-General has advised the House to reject the amendment. One of his reasons is that the protection that it offers is not needed because another is available. In the circumstances, that opinion appears rather pertinent.

§ The Solicitor-General
I cited a leading Court of Appeal decision, which the hon. Gentleman should read closely.

§ Mr. Garnier
Is there a reference?

§ The Solicitor-General
Yes, it is 1973, Queen's Bench. The hon. Member for Beaconsfield (Mr. Grieve) should receive reassurance from that.

§ Mr. Brooke
I am grateful to the Solicitor-General for his response. He may not be aware that he made a mild slip of the tongue at the beginning of his speech when, instead of saying that he would resist the amendment, he said that he would resist the clause. As I had graciously said that I would not do so, I thought that position slightly perverse. I mention it merely to show that I was hanging on his lips throughout his speech.
I am grateful for the reference to the Solicitors Act 1974. I had been tempted to include a reference to the definition of solicitors, but the Solicitor?General clearly would have rebuffed me, and I have saved my breath intelligently. I am grateful for the spirit in which he has addressed the society's predicament and for the pointer that he offered, even if he came under sniper fire from elsewhere in the House about the possible paradox or contradiction in his advice. What he said will be helpful to my constituents, and I beg to ask leave to withdraw the amendment.