The Notaries Society
The Notarial Profession
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. 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, although in recent years they have widened the scope of their work, they generally confine their work to advocacy and to offering specialist legal advice.
Commissioners for Oaths may administer oaths for use within the United Kingdom and their authority 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.
Legal Executives are Lawyers who are usually qualified by examination in particular areas of the law.
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.
Some legal work is reserved to the legal professions that have been described above. The Legal Services Act 2007 lists this as:
- the exercise of a right of audience (in Courts)
- the conduct of litigation
- reserved instrument activities (the legal side of conveyancing)
- probate activities
- notarial activities
- the administration of oaths
Other legal work may be performed within the United Kingdom freely by any person without any qualification or training. Thus, for example, the making of wills or the assessment of insurance claims for injury or loss are also routinely handled by unqualified and unregulated commercial organisations
The Notarial Profession in England and Wales
A notary is defined by what he is and what he does. He is a qualified lawyer whose task it is to certify documents and transactions so that they can be effective in countries outside the United Kingdom
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 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 the education and appointment 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 the University of London. 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 appointed, a notary is subject to the rules and disciplinary control 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 membership 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 23 members headed by the President and employs a Secretary to run the organisation.
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 150 notaries, are also qualified as solicitors.. 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. http://www.scrivener-notaries.org.uk/
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 distinctive aspects which formally emphasise the authority of notarial facts.
Until the eighteenth century notaries would authenticate their acts with an individual sign - often extremely elaborate. At the same time the government and corporations authenticated their transactions under seal. Governments still use seals for important transations, and their regular use by companies is only now going out of fashion. The use of seals to authenticate 'deeds' was the normal way of establishing their validity in the courts. Gradually, notaries adopted seals in substitution for their signs and by the nineteenth century it had become established that any notarial act should be affested 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. In addition notarial acts are prepared in established forms which can easily be understood and recognised wherever they are produced, and which may, in many jurisdictions, carry significant weight in courts and registries. Just as notaries certify documents and transactions so they in turn are certified by the legalisation process which is described elsewhere.
Members of the Notaries Society may also incorporate the badge of the society, in their documents and stationery.
A notarial certificate.
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 and 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
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.
A notary may also be called upon to certify the proper execution or signing of any sort of document that is to be used overseas and, if required, to confirm that is binding in English law. After identifying the person or persons concerned and the substance of any fact or event he may issue a certificate confirming such fact or event. This is frequently useful in relation to immigration or emigration matters or issues relating to status, marriage divorce or adoption and many like matters
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 administration of oaths has always been an important function of the notary.
The Notaries Society
As will be seen on other pages on this site the Society, formed in 1882, is the membership organisation of notaries in England and Wales. Among its many functions it maintains contact with the other notaries in the rest of the United Kingdom and Ireland through membership of the United Kingdom and Ireland Notarial Forum, throughout the rest of the world as a founder member of the World Organisation of Notaries (W.O.N.) and through its observer status with the International Union of Latin Notaries and through direct contact with other notarial associations. Despite differing traditions all notaries have shared concerns including the maintenance of trustworthy professional standards.,
The sign of Nicholas Brown de Esyngwald 1361 [An embroidered copy by Judith Wycherley]