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Lord Hacking: My Lords, I am grateful to my noble and learned friend for that reply, and particularly for the last passage in which he told us--this is most welcome--that my noble and learned friend the Lord Chancellor will give further consideration to this matter. It is important to put the stake in the ground here. We should remember that on a Motion moved by the noble and learned Lord, Lord Ackner, your Lordships removed from the Bill the right of employed lawyers to have audience in the courts. Your Lordships have therefore shown some unease about employed lawyers having rights of audience before the courts. If we can illustrate the fact that an employed lawyer has to fulfil his absolute duty to the court, I think and hope that those worries will be assuaged.
I am not so hopeful that the fears of the noble and learned Lord, Lord Ackner, will be assuaged, even at Third Reading or when the Bill returns from another place. But I would be more hopeful that the House as a whole would feel that there is sufficient protection to the system of justice and that the role that employed lawyers, in exercising rights of audience, play in the sanctity of justice would be sufficient to make us feel comfortable with the willingness to restore to this Bill Clause 31, which disappeared at Committee stage. On that basis I am happy to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 176 not moved.]
Lord Falconer of Thoroton moved Amendment No. 177:
On Question, amendment agreed to.
[Amendments Nos. 178 and 179 not moved.]
The Lord Chancellor moved Amendment No. 180:
Page 20, line 37, after ("act") insert ("with independence").
After Clause 36, insert the following new clause--
(". A public notary may practise as a notary in, or within three miles of, the City of London whether or not he is a member of the Incorporated Company of Scriveners of London (even if he is admitted to practise only outside that area).").
The noble and learned Lord said: My Lords, my amendments and the amendments of the noble Lord, Lord Goodhart, go to the same purpose; namely, to end the statutory monopoly held by the Incorporated Company of Scriveners of London over notarial work in the central London area.
Amendment No. 180 will insert a new clause after Clause 36, providing that a notary may practise in the City of London or within three miles of its boundaries, whether or not he is a member of the Scriveners' company. The subsequent Amendments Nos. 192 to 195 standing in my name will amend Schedule 11 so as to repeal references to the monopoly in statute accordingly.
I shall explain some of the background to this, as it may be that not all of us are completely familiar with the intricacies of the notarial profession. 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. However, all notaries who wish to offer notarial services in the City of London or within three miles of its boundaries, must, under the current legislation, belong to the incorporated company, with is a livery company of the City of London. Members of the Scriveners' Company are subject to more specialised training requirements than general notaries, who are mostly solicitors. I understand that there are currently 28 scrivener notaries practising in the City who are the beneficiaries of this monopoly. There are roughly 1,000 non-scrivener general notaries who are only permitted to practise outside the specified area.
This monopoly was placed on a statutory basis by Section 13 of the Public Notaries Act 1801, and confirmed by Section 6 of the Public Notaries Act 1843 and Section 57 of the Courts and Legal Services Act 1990. During the passage through Parliament of the Competition Act 1998, there was pressure to abolish the monopoly, which is understandable, and an amendment to that end was tabled. The amendment was ultimately rejected as being outside the scope of that Act. However, I undertook to review the arguments for and against the monopoly, in order to form a view on the desirability or otherwise of its abolition.
I have now received views from the various notarial associations, the Law Society, the Office of Fair Trading, and the Faculty Office of the Archbishop of Canterbury, which, for historical reasons, regulates the notarial profession. I have come to the clear view that there is no justification for preserving this monopoly. As the Government's policy is generally hostile to the preservation of commercial monopolies, the existence of the Company's monopoly is anomalous. The Office of Fair Trading has advised me that the monopoly is anti-competitive and should be abolished. Concerns have been raised by those who oppose the monopoly that in a large area of central London, ordinary notarial facilities are not sufficiently accessible to members of the public who might need them.
I have considered the arguments from the Incorporated Company of Scriveners--namely, that it offers a specialist service and that standards will be lowered by competition--but I do not find them convincing. There will be nothing to stop notaries from continuing to belong to the Scriveners' company if they wish, and if they offer a higher level of service than other notaries they should have nothing to fear from competition.
I have detailed reasons for marginally preferring the terms of this amendment, which I have brought forward, to that of the noble Lord, Lord Goodhart, but I imagine he would agree that it is unnecessary to go into that kind of detail. I hope that your Lordships and the noble Lord, Lord Goodhart, will be happy to accept my amendment. I beg to move.
10.45 p.m.
Lord Goodhart: My Lords, I welcome Amendment No. 180. When I tabled Amendment No. 181 I was not certain that the noble and learned Lord the Lord Chancellor was going to table Amendment No. 180. Had I known that he was going to do so, I would not have tabled my own amendment. I certainly shall not move it on this occasion.
Notaries are a minor branch of the legal profession in England and Wales. They are of course much more important in other legal systems, particularly in mainland Europe. Many of your Lordships will be familiar with the important role of the notaire in the French legal system. The profession is an ancient one and many of your Lordships will be familiar with the important role which notaries, real or bogus, played in the historical events recorded in the "Marriage of Figaro", "Cosi fan tutte" and "The Barber of Seville".
The Deputy Speaker (Lord Ampthill): Sing!
Lord Goodhart: My Lords, I reject the invitation from my noble friend to sing. Our own legal system could get on perfectly well without notaries but they are, of course, essential where documents which are executed in England and Wales need to be authenticated by a notary for use in other legal systems. I was frankly astonished when a few weeks ago I was told that notaries qualified to practise anywhere else in England and Wales were not allowed to practise in the City of London or within three miles of it, and that in that area the right to practise was reserved to freemen of the Incorporated Company of Scriveners who had passed the company's own examinations and served formal apprenticeships. It is plainly the last remnant of mediaeval guild monopolies. The scriveners say that those who have qualified as freemen of their company offer higher standards of service than other notaries. That may well be true but there is no obvious reason why higher standards are needed in Southwark than in Southampton.
There are a number of professional organisations such as the Chartered Institute of Taxation whose membership is not necessarily a qualification for practice in that profession but is an indication that the members are specialists who have attained high standards in their fields. There is no reason why the scriveners should not enjoy a successful future as an organisation of that kind, but I believe the monopoly must go.
On Question, amendment agreed to.
[Amendment No. 181 not moved.]
Clause 37 [Permission to appeal]:
Lord Falconer of Thoroton moved Amendment No. 181A:
The noble and learned Lord said: My Lords, Amendments Nos. 181A to 181G are drafting amendments, which remove from the Bill definitions which are unnecessary. I should also like to take this opportunity to give notice of our intention to table at
The effect of Section 54(6) (which generally prevents the decision of a single Lord Justice on a leave application from being appealed) will also need to be reinstated and, indeed, extended to cover similar decisions of lower courts acting in an appellate capacity. In the meantime, I urge your Lordships to accept the drafting amendments which are currently before you. I beg to move.
Page 21, line 30, leave out subsection (6).
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