Schedule B - Appointment of Notaries
England and Wales
All notaries in England are appointed by the Court of Faculties of the Archbishop of Canterbury, in the exercise of the powers conferred by the Ecclesiastical Licences Act 1533. The Legal Services Act 2007 preserves the jurisdiction of the Court of Faculties over notaries and, in particular, empowers the Master of the Faculties to make rules for the education and training qualifications that prospective notaries must satisfy before admission. He will, however, be subject (in common with other legal professions) to the overarching regulatory supervision of the Legal Services Board established by the 2007 Act.
Notaries are established in all parts of England and Wales and their number and distribution is designed to meet public demand. A notary, once appointed, may practice without territorial restriction throughout England and Wales. Demand for notarial services is necessarily limited by the restricted, but nonetheless important, role which notaries play in the English legal system. However, the need for notarial services is rising and it is expected that, as English law develops towards harmonisation with European law and the profession of the English or Welsh notary approximates more closely with the notarial professions of other Member States, demand will increase further. As that demand grows there is likely to be an increase in the number of notaries who will practise only as notaries.
All notaries in Scotland are admitted by the Court of Session under the Solicitors (Scotland) Act 1980. No person may be admitted as a notary public unless he has been admitted and enrolled as a solicitor, although under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 admission as a solicitor and as a notary public may be simultaneous. Any solicitor may apply to the Court of Session to be admitted as a notary public. The 1990 Act provides that the offices and functions of the Clerk to the Admission of Notaries Public and the Keeper of the Register of Notaries Public are transferred to the Council of the Law Society of Scotland.
The Law Society of Scotland is the regulatory body for solicitors and notaries in Scotland established under the Solicitors (Scotland) Act 1980. Since November 2007 only solicitors/notaries in possession of a practising certificate can act as notaries in Scotland: Legal Profession and Legal Aid (Scotland) Act 2007 Section 62.
Notaries in Northern Ireland are appointed by the Lord Chief Justice of Northern Ireland. Such appointments are made by virtue of the powers vested in him under the Judicature (Northern Ireland) Act 1978 to appoint persons to act as notaries public in Northern Ireland subject to such conditions and to such limits as to territory, duration or purpose as he may specify in the appointment and in accordance with the procedure prescribed by Order 107 of the Rules of the Supreme Court of Northern Ireland.
Appointment to the office of notary public must be preceded by six years' practice as a solicitor. Application for such appointment is in the form of a Memorial which shows: a) that the applicant is a solicitor of the Supreme Court of Northern Ireland; b) the place at which the applicant has practised as a solicitor and for how long; c) the number of practising notaries in Northern Ireland; d) reasons why such appointment would be in the public interest. The Memorial is accompanied by a certificate in support of the statements in the Memorial and confirming the fitness of the applicant, signed by magistrates, traders and residents in the district in which the applicant practises as a solicitor. A copy is served on all notaries public practising in Northern Ireland, any of whom may object to the proposed appointment.
The Memorial concludes with the request that the applicant be appointed “to practise throughout Northern Ireland”. Although the Lord Chief Justice has the power to appoint notaries subject to such conditions and to such limits as to territory, duration and purpose as he may deem appropriate, a notary, whether appointed prior to the Judicature Act 1978 or pursuant to it, may as a general rule practise anywhere in Northern Ireland.
The appointment of a notary in Northern Ireland is revocable and subject to modification at the discretion of the Lord Chief Justice. When a solicitor who is a notary ceases to practise as a solicitor, he must also give up his notarial practice.
(With acknowledgement to Brooke's Notary 13th edition 2009 and Sweet and Maxwell)
Republic of Ireland
In Ireland, under the provisions of the Courts (Supplemental Provisions) Act, 1961, to power to appoint notaries public is vested in and exercisable by the Chief Justice sitting in open court. Application is by Petition supported by affidavit of the applicant exhibiting a certificate of examination and competency issued to the applicant by the Faculty of Notaries Public in Ireland and based on the results of the Faculty examination, a certificate of suitability and fitness signed by at least six solicitors practising in the area or district for which the applicant seeks to be appointed, and a similar certificate signed by at least six persons representative of the business community in the area or district concerned. The Faculty of Notaries Public and the Law Society of Ireland are notice parties to the hearing of the petition and may raise objections on appropriate grounds.
Pursuant to the Notaries Public Examination Regulations 2007, as amended, eligibility to sit the notarial examination of the Faculty is confined to a solicitor or barrister having not less than five years continuous post-qualification experience in the practice of the law.
A person applying to be appointed a notary public is required to include in the papers lodged in the Supreme Court Office, an undertaking to observe, if appointed, the Code of Conduct for Notaries Public of November 1986. On being admitted to membership of the Faculty of Notaries Public, the appointee becomes bound by the constitution of the Faculty and the Professional Practice Regulations for the time being in force.