The Notarial Profession
Notaries represent the oldest and smallest branch of the legal profession in England & Wales. (Notaries in Scotland are regulated separately like the other Scottish legal professions). Some legal work is reserved to the various legal professions. The Legal Services Act 2007 lists these 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
The Notarial Profession in England and Wales
A notary is defined by what s/he is and what s/he does. A notary is a qualified lawyer whose task it is to authenticate documents and transactions so that they can be effective in countries outside England & Wales
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 courts - 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 will generally hold a university degree, or be qualified as solicitors or barristers. All applicants must also 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 their appointment as a Notary Public and enabling them to practise as a Notary Public subject to supervision by an experienced Notary for the first two years.
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 Public 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 775 notaries in England and Wales. Of these, about 725 are members of the Notaries Society - the membership body which represents the interests of notaries. 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 organisation.
The Secretary is Mr C.J. Vaughan and may be contacted at P O Box 1023 Ipswich IP1 9XB.
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.
Within England and Wales a Notary Public 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 the notary 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 Solicitors Regulation Authority.
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 acts.
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 transactions, 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 attested by a notary's signature supported by his individual seal. All Notaries Public 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.
Where a notarial act is for use overseas, it is commonly a requirement that a notary's execution of the act is further attested by HM Government through the Foreign Commonwealth and Development Office who will attach to the document an 'Apostille' or certificate confirming the authenticity of the notary's signature and seal - both of which are registered with the Foreign Commonwealth and Development Office. The process is called 'legalisation'. Some countries require further authentication 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 to be executed before a notary.
A Notary Public 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 it 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
Other functions include 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
The Society is the membership organisation for Notaries Public 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 Common Law Association of Notaries (C.L.A.N.) and through direct contact with other notarial associations. Despite differing traditions all Notaries have shared concerns including the maintenance of trustworthy professional standards.