Public Statement

THE NOTARIAL PROFESSION IN THE UNITED KINGDOM

Constitutional structure of the United Kingdom and the legal systems

The United Kingdom is a unitary State comprising England and Wales, Scotland and Northern Ireland.

By virtue of the constitutional establishment of the United Kingdom, the respective legal systems of the constituent countries have been maintained and are enshrined in the Act of Union 1707. The creation of the devolved system of government with the Scottish parliament and the Northern Ireland and Welsh assemblies will enable the separate jurisdictions in the United Kingdom to produce law which is tailored to the needs of the population.

The distinctive nature of the legal systems is well known - England and Wales and Northern Ireland are common law jurisdictions, Scotland is a Roman law based system with common law influences. Separate court structures and legal professions as well as dist inctive laws ensure the preservation of the individual legal traditions.

The legal professions in the United Kingdom

Despite the differences in their legal systems, the legal professions in the United Kingdom follow the same division between their branches which are now briefly described.

Solicitors (in Scotland, also termed as Writers to the Signet) are the most numerous branch of the legal profession throughout the United Kingdom. They are the usual point of first contact for the citizen. Solicitors in Scotland are regulated by the Law Society of Scotland and elsewhere they are regulated by the Solicitors Regulation Authority. Three main areas of legal practice are reserved to them - conveyancing, applications for probate and the conduct of litigation.

Barristers have similar powers to solicitors and, in recent years, have widened the scope of their work. However, they generally deal with solicitors rather than direct with clients and confine their work to advocacy and to offering specialist legal advice. They have rights of audience in the supreme court - this privilege being enjoyed by those solicitors who have acquired further qualifications.

Notaries represent the oldest and smallest branch of the legal profession. They and the areas of legal work reserved to them will be described later.Commissioners for Oaths are frequently encountered. Under statutory authority they may administer oaths for use within the United Kingdom and their aut hority is still occasionally recognised in countries formerly within the British Empire. Solicitors, barristers, notaries, licensed conveyancers and legal executives are all entitled to describe themselves as Commissioners for Oaths.Judges at all levels are appointed by the Lord Chancellor from barristers and solicitors of appropriate seniority. Senior lawyers (usually, but not exclusively, barristers) may be appointed to the rank of Queen's Counsel - an honorary rank which commands considerable practical respect.

Legal Executives are Lawyers who are usually qualified by examination in particular areas of the law. Both Licensed Conveyancers and Legal Executives have the powers of a commissioner for oaths.

Legal work - other than the reserved categories referred to above - may be performed within the United Kingdom freely by any person without any qualification or training. They are subject to the legislation which provides protection for consumers but are otherwise at liberty to compete with lawyers. Thus, for example, the making of wills or the assessment of insurance claims for injury or loss are rout inely handled by unqualified commercial organisations.

The notarial profession in England and Wales

A notary in the 16th Century

The notarial profession in England and Wales is best understood from a historical perspective. Until 1533 notaries were appointed on papal authority by the Archbishop of Canterbury. Following the break from
Rome, appointments continued to be made by the Archbishop of Canterbury - but on the authority of the Crown. The Archbishop's jurisdiction was, and is, exercised through one of the oldest of the English court s - the Court of Faculties, now physically located at the Precinct adjoining Westminster Abbey in London. The Court is presided over by the Master of the Faculties who is the most senior ecclesiastical judge and commonly (and currently) also a judge of the Supreme Court. Since 1801 the appointment and regulation of notaries has been underpinned by statutes enacted by Parliament.

The qualification, appointment and regulation of notaries

The current machinery for t he education and appoint ment of notaries is established under rules made by the Master of the Faculties under powers given to him by the Courts and Legal Services Act 1990. Applicants must hold a university degree, or be qualified as solicitors or barristers (both such professions themselves requiring a university degree as a pre-condition for qualification in all but exceptional circumstances). Thereafter all applicants must obtain a Diploma in Notarial Practice after following a course of study prescribed by the rules and currently offered by Cambridge University. Once the Diploma is obtained, an applicant may petition the Court of Faculties for a 'Faculty' - a formal warrant under the seal of the Archbishop of Canterbury confirming his appointment and powers - enabling the applicant to practise as a notary subject to supervision by an experienced notary for the first two years.

There are two variations to this qualification pattern. First, the diocesan bishops each have a legal officer (a solicitor or barrister) who, for historical reasons must also be a notary. These ecclesiastical notaries have no responsibilities beyond their work within the Church of England and are appointed by the Court of Faculties without any requirement for additional qualification or training. Secondly, a notary may take additional qualifications in foreign law (as prescribed by the rules) and may then apply to become a freeman of the Worshipful Company of Scriveners (one of the City of London livery companies) which carries the right to practise as a 'scrivener notary'.
Once appoint ed, a notary is subject to the rules and disciplinary cont rol exercised by the Master through the Court of Faculties. Scrivener notaries are subject also to regulation by the Worshipful Company of Scriveners.

The organisation of notaries

There are approximately 1,000 notaries in England and Wales. Of these, about 800 are members of the Notaries Society - the professional body which represents the interests of notaries. (Many of those who are not members of the Society are thought to practise in larger firms where one partner is a member, but the others do not feel that it is necessary to join as well.) The work of the Notaries Society is wide ranging but includes education, international representation and the development of professional standards. The Society is run by a Council of 15 members headed by the President and employs a Secretary to run the organisat ion.
The Secretary is Mr C.J. Vaughan and may be contacted at Old Church Chambers 23 Sandhill Road St James Northampton NN5 5LH.

Throughout England and Wales, all, save about 70 notaries, are also qualified as solicitors. Within the area of Greater London, about 50 notaries (mostly also solicitors) belong to the Association of Solicitor Notaries of greater London as well as to the Notaries Society. A further 30 scrivener notaries belong to the Society of Scrivener Notaries. The scrivener notaries are not solicitors - although there is no reason why this should not change over time - and, for historical reasons (which again may change with time), are concentrated within central London. Until new legislation came into force in 1999, only scrivener notaries were allowed to practise within central London and had acquired a distinctive international reputation and profile which culminated in their separate membership of the UINL. While many notaries may have knowledge of foreign languages or foreign jurisdictions, the scrivener notaries are all able to work in at least one language other than English and to have a detailed knowledge of at least one other legal system. This historical identity and additional qualification is recognised by their separate membership of the UK Notarial Forum. Their Secretary is and may be contacted at

Within England and Wales a notary is authorised to carry out all legal work other than the conduct of litigation. The authority of a notary is derived both from statute and from the Faculty granted to him by the Court of Faculties. The Faculty enables a notary to perform notarial acts in the public (or authentic) form recognised in civil law jurisdictions as well as in the private form which is accepted in England and Wales and other common law jurisdictions. A notarial Faculty states that full force and effect should be given to all instruments (including acts in both the public or private form) made by a notary. Notaries who are also solicitors carry out most of this domestic work (including litigation) in their capacity as solicitors and are subject to regulation by the Law Society.

This introduction to the notarial profession is not the place for a detailed study of notarial work. However there are two distinctive aspects which require comment. Until the eighteenth century notaries would authenticate their acts with an individual sign - often extremely elaborate. At the same time government and corporations authenticated their transactions under seal. The use of seals to authenticate 'deeds' was the normal way of establishing their validity in the court s. Gradually, notaries adopted seals in substitution for their signs and by the nineteenth century it had become established that any notarial act should be att ested by a notary's signature supported by his individual seal. All notaries now have such a distinctive seal - often illustrated with professional or historical signs.

Seal of Mr C.M.F. Langdon

Members of the Notaries Society may incorporate the badge of the Society.

The badge of the Notaries Society

Where a notarial act is for use overseas, it is commonly a requirement that a notary's execution of the act is further witnessed by HM Government through the Foreign and Commonwealth Office who will add an 'apostille' or certificate confirming the authenticity of the notary's signature seal - both of which are registered with the Foreign and Commonwealth Office. The process is called 'legalisation' and may be further authenticated by the consulate of the receiving jurisdiction also providing similar confirmation.

The notarial profession in Scotland

Sixteenth century legislation provided important roles for the notary in relation to writs dealing with heritable property. The Subscription of Deeds Act 1540 required the subscription of a notary to a deed and the Deeds Act 1579 provided that "all writs importing heritable title or other bonds of obligations of great importance should be subscribed and sealed by the principal..." or "twa famous notars", whilst the Subscription of Deeds Act 1681 provided that the witnesses should hear the party give warrant to the not aries and in evidence thereof touch their pens.

After a long period of decline during the nineteenth century, the late twentieth century has seen a resurgence in a requirement for the notary's services, Affidavits in the affidavit divorce procedure are sworn before a notary. Furthermore, the terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, certain declarations under that Act require to be formal affidavits sworn before a notary.

One of the most frequent notarial functions is the attestation or authentication of powers of attorney for use abroad. Many foreign legal systems require powers of attorney or factories and commissions to be executed before a notary.

Notaries are also required to note and draw protests in maritime matters and to protest bills of exchange. Other functions include the drawing for repayments of bonds of debenture, the completion of documentation for the registration of a company in different parts of the Commonwealth or overseas and sometimes for the entry of a person to overseas territories.

The administrat ion of oaths has always been an important function of the notary. The Solicitors (Scotland) Act 1980 provided that in any case where the administration of an oath or the receipt of an affidavit or solemn affirmation to be authorised by or under any enactment it shall be lawful for the oath to be administered or, as the case may be, for the affidavit or affirmation to be received by a notary public. The affidavit should not relate to any matter in respect of the preservation of the peace, a prosecution, trial or punishment of an offence, or any proceedings before either House of Parliament or any Committee thereof.

All notaries in Scotland are solicitors regulated by the Law Society of Scotland under the Solicitors (Scotland) Act 1980.

The UK Notarial Forum

In 1992 the notarial professions in the United Kingdom agreed to form the United Kingdom Notarial Forum, a body for discussion and co-operation in this important area of legal pract ice. The members of the Forum are currently:

1	the Notaries Society
2	the Society of Scrivener Notaries
3	the Law Society of Scotland (representing all notaries in Scotland)
4	the College of Notaries of Northern Ireland (representing all notaries in Northern Ireland).

Observer status has been granted to notarial bodies in Jersey, Guernsey, the Isle of Man and the Republic of Ireland.

The objectives of the Forum are:

1	to enhance the role and status of notaries within the system of civil justice and in the context of personal and commercial transactions of an international nature;
2	to elaborate standards for the worldwide performance of the notarial function and, where necessary, advocate and seek legislative change;
3	to provide information, encouragement and assistance to members and other notariats on a mutual and reciprocal basis;
4	to represent and advance the interests of the profession of notary (but not individual notaries) with official bodies, such as administrators of justice, law societies, government departments, professional associations whether based in the United Kingdom or overseas,

The members of the Forum have adopted the principle of subsidiarity so that its deliberations and opinions are not directly binding on its members.

A practical example of the work of the Forum is in making available practitioners for continuing education lectures and seminars.

The Forum has considered the European Parliament Report on the State and Organisation of the Profession of Notary in Europe, commonly known as the Marinho Report. The const ituent members of the Forum made representat ions to the relevant European Parliamentary Committee concerning the situation in the United Kingdom and submitted a memorandum for the consideration of the UINL (Union Internationale du Notariat Latin), the world organisation for civil law notaries.

The sign of Nicholas Brown de Esyngwald 1361 [An embroidered copy by Judith Wycherley]