NOTARIES IN ENGLAND AND WALES
AN ARTICLE BY
PROF. GISELA SHAW
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THE
OLDEST LEGAL PROFESSION IN ENGLAND (1)
The profession of notary, the roots of which go back to
ancient Rome, is arguably the oldest legal profession in
England. With the spread in the Middle Ages of Roman civil
law to countries north of the Alps, notaries found a place
in continental Europe’s non-contentious
jurisdictions. Their licences to practise, granted by the
Pope or by the Holy Roman Emperor respectively, were not
restricted to specific territories, and their instruments
freely crossed national frontiers. A number of notaries,
both ecclesiastical and imperial, also reached England.
Since 1279, it has been the
Archbishop of Canterbury
who has appointed notaries in England, initially by
authorisation of the Pope and the Emperor respectively,
then, from 1533, by authorisation of the English Crown. A
Court of Faculties, one of the oldest of the English courts
(now located next to Westminster Abbey in London), was set
up by the Crown and attached to the Archbishop of
Canterbury, to deal with the practice of such appointments.
The Court is presided over by the
Master of the Faculties
who is the most senior ecclesiastical judge and commonly
also a judge of the Supreme Court. This system has been in
place for almost 500 years.
In England, notaries never attained the same prominence as
they did in the continental European jurisdictions based on
Roman law. As common law, with its preference for lay
judges and oral testimony over trained lawyers and
documentary evidence, increasingly replaced Roman law, the
need for notaries began to diminish. The last major blow
came in the 19th century with the transfer to the common
law courts of the bulk of the business of the last two
courts to apply Roman law, i.e. the Court of the Admiralty
and the ecclesiastical courts. Nevertheless, notaries in
England and Wales have survived to this day as a separate
legal profession. They even survived repeated take-over
bids on the part of the
Law Society,
the last of these in 1884, thanks to the lobby of the
powerful group of London Scrivener notaries (in 1884, 33
of a total of 48), then as now members of the
London
Worshipful Company of Scriveners
founded in 1373. In contrast to their colleagues outside
London whose notarial workload was not sufficient to enable
them to practise exclusively as notaries, the London
Scrivener notaries had established a strong position in the
City of London’s commerce and banking and shipping
industries. A geographically defined monopoly in and around
the City of London shielded them from competition by
general (solicitor) notaries from across the rest of the
country, and was repeatedly reaffirmed by Parliament, most
recently in 1990.
THE PROFESSION TODAY (2)
Between the middle of the 19th and the latter part of the
20th century, nothing much changed for notaries in England
and Wales. The world at large, including the world of
politics and law, had totally forgotten that they existed.
Change began with the
Courts and Legal Services Act of
1990.
A watershed for the legal professions in England and
Wales generally, the Act actually contained a brief
reference to notaries - the first since the Bills of
Exchange Act of 1882. Its
section 57
removed two barriers to competition amongst notaries
outside London: first, notaries ceased to be appointed to
practise only within particular districts in England or
Wales and were now able to settle and practise anywhere
outside London; secondly, the apprenticeship system for
notaries practising outside London was abolished, to be
replaced by a meritocratic system based on national
training qualifications, the details to be defined by the
Master of the Faculties. At the same time, however, the Act
expressly re-affirmed the geographical monopoly accorded to
the Scrivener notaries in London, as well as their power to
control their own separate system of training and access to
their branch of the profession. Having once again escaped
state interference, the Scriveners in London continued to
keep themselves at some distance from their provincial
colleagues in England and Wales, while strengthening their
bonds with notaries in the civil-law world, and only they
enjoyed full membership in the
International Union of Latin Notaries
(UINL).
Eventually,
even the Scriveners were caught up in the
government’s campaign to liberalise the legal
services market. In a first step, they lost their autonomy
over training and access to their branch of the profession,
when in 1998 the Public Notaries (Qualification) Rules of
1991 for notaries outside London were replaced by more
comprehensive and detailed
Notaries (Qualification) Rules
encompassing the profession as a whole. The second step
came in the form of
section 53 of the Access to Justice Act of
1999,
and since then, the Scriveners have been subject to the
same professional regulations as their colleagues across
England and Wales (3).
As the European market and the opportunities it offered
have become ever more real, both groups within the
profession have increasingly focused their ambition on
narrowing the gap that separated them from their colleagues
in the civil-law world. In particular, the
Notaries’ Society
has developed its keen interest in and commitment to the
reform of notarial training within the framework of the new
Notaries Qualification Rules, as well as to the promotion
amongst its members of professionalism, solidarity,
corporate identity and awareness of developments in the
other Member States of the European Union. In 1991, the
Society set up a magazine, "The Notary", as a first channel
of communication, information and discussion amongst its
membership. In 1999, this was complemented by an e-mail
discussion group “Notary Talk”, created by one
of its members. Since 1992, the UK Notarial Forum has
provided representatives of notarial organisations in
England and Wales, Scotland and Northern Ireland with an
opportunity for regular meetings and exchange of views. In
1998, the Notaries’ Society’s efforts were
rewarded by its being granted observer status with the
International Union of Latin Notariats (UINL).
A part-time distance-learning
Diploma Course in Notarial
Practice
has been offered since 1999 by the University of Cambridge.
After 5 years of operation, 74 awards had been made. A
critical review conducted in 2004 resulted in major
adjustments, most of them aimed at ensuring greater
academic rigour and respectability. The programme was
raised to postgraduate level and the range of modules
offered reduced to the 3 core subjects (Roman law,
international private law, and notarial practice),
therefore requiring all successful applicants to hold a
degree in law. Assessment regulations were tightened and
the maximum period allowed for completion reduced from 5 to
2 years. The training for all newly qualifying notaries in
England and Wales has thereby broadly been put on a par
with that for other lawyers within England and for the
legal professions (including notaries) within the European
Union at large.
THE FUTURE
Prospects for members of the profession who are not
Scriveners (currently a total of around 800) are better now
than they have been for a long time. Rising demand for
their services results in an improvement of their income as
notaries rather than as solicitors, with some 60 of them
having already taken the decision to work as notaries-only.
The first ever survey of the profession of notaries in
England and Wales, which was commissioned in 2002 by the
Notaries’ Society, clearly reflects this trend. It
also shows that numbers are falling due to a significant
retirement element, presenting the prospect of significant
changes in the profession’s age and qualification
profiles, as well as benefits in terms of experience and
incomes for those remaining in the profession.
Two major challenges are facing the profession as a whole,
one national, the other international. First, there is the
possible effect of the report by Sir David Clementi
following his Review of the Regulatory Framework for Legal
Services in England and Wales. The
Clementi Report,
submitted in December 2004, acknowledged that the
notarial profession already distinguishes between
regulatory and representative functions (a distinction
lacking in the case of the Law Society), but proposes a
transfer of regulatory powers from the Archbishop of
Canterbury to an overarching Legal Services Board (LSB).
Should the government decide to implement this proposal,
this would spell not only the loss of the last symbol of
notaries’ historical exclusivity, but may also
bring about the end of their separate and distinct
existence as a profession.
The second major challenge stems from the European
Commission’s campaign to liberalise and harmonise the
liberal professions within the European Union. While
notaries in England and Wales, being already as liberalised
as far as is possible, have themselves nothing directly to
fear, their assessment of the situation differs markedly,
depending on their own professional aspirations. There are
those who voice concern that a weakening of the status of
civil-law notaries on the Continent could indirectly damage
their status within England and Wales, and there are others
intent on lobbying in Strasbourg and Brussels in favour of
the abolition of monopolies enjoyed by notaries in EU
civil-law jurisdictions, most specifically resulting from
the nationality requirement imposed by many Member States
(4).
It is unlikely that, in the short- and even mid-term, the
bulk of notaries in England and Wales will find themselves
personally and directly affected by these wider
developments around them. What is likely to undergo
significant change, however, is the shape and feel of the
profession as a whole and its standing in the national and
international communities of lawyers.
FOOTNOTES
:
1. C. W. Brooks, R. H. Helmholz, P. G. Stein, Notaries
Public in England and Wales since the Reformation, Norwich:
Erskine Press, 1991; N. P. Ready (ed.), Brooke’s
Notary, 11th ed., London: Sweet & Maxwell, 1992 (first
ed. by Richard Brooke in 1839).
2. Gisela Shaw, ‘Notaries in England and Wales:
modernising a profession frozen in time’,
International Journal of the Legal Profession. Vol. 7, no.
2, 000, 141-155.
3. For a detailed account of the background to these
changes, see Mark Kober-Smith, "Legal Lobbying. How to Make
Your Voice Heard", London, Sydney: Cavendish Publishing,
2000.
4. Only Italy, Spain and Portugal promised to withdraw the
nationality requirement to avoid being caught up in the
formal warning issued by the EU Commission in November
2000. – Gisela Shaw, ‘The German notariat and
the European challenge’, International Journal of the
Legal Profession, vol. 10, no. 1, 2003, 37-54.
Gisela Shaw
Visiting Professor
University of the West of England, Bristol
E-mail:
gisela@giselashaw.com
Website :
www.giselashaw.com