Networking opportunities, Scottish notaries

Solicitors based in and around London are set to have greater opportunities for networking as a popular group supported by the Society gets ready to begin operating in the capital.

Connections Networking Group is a networking organisation which brings together professional advisers and entrepreneurs for high-quality lectures and social events. As a group, they aim to promote and facilitate networking.

At present, they regularly host events in Edinburgh and Glasgow. However, in 2016, they will begin hosting events in London.

The diverse range of events they host provide a platform for attendees to build their professional networks and develop their networking skills whilst exploring a range of interesting topics.

Some of their past events have included sake and cocktails at a Japanese restaurant, sherry tasting at the film festival and events partnered with the Science Festival.

You can find out more about Connections and their events on their website or by info@connectionsnetworkinggroup.com.

Our members based in England and Wales are invited to an event to celebrate the EU's ratification of the Hague Conference Choice of Courts Convention on Friday 13 November 2015.

The convention entered into force for the EU on 1 October 2015. It creates an optional worldwide framework for jurisdiction, recognition and enforcement of judgments in civil and commercial matters.

The convention was originally drawn up by countries and trading blocks, including the EU, the US, Canada, Japan, China and Russia, all of whom are members of the Hague Conference on Private International Law. The United States and Singapore have signed into the convention. The EU's accession, with the exception of Denmark, adds 27 prominent European jurisdictions to the convention. It applies between these European Union member states and Mexico.

According to the EU, the convention has the potential to become a worldwide legal basis for the recognition and enforcement of judgments resulting from a choice of court agreement between the EU and other parties. This promotes international trade and investment by offering greater certainty for parties involved in business-to-business contracts and international litigation, adding greater certainty in recognition and enforcement of judgments in the participating states.

Speakers:

Marta Pertegás, the First Secretary from the Hague Conference on Private International Law

Sarah Garvey, Head of Litigation, PSL Counsel, Allen & Overy, London

Juan Pablo Sainz, Nader, Hayaux & Goebel

The Society is continuing to explore options that would recognise the practice rights of Scottish notaries public in England and Wales.

Talks between the Society and the Faculty Office of the Archbishop of Canterbury – the regulator of notaries in England and Wales – have taken place but no agreement was reached over the rights of Scottish solicitors to practise as notaries south of the border.

The Faculty Office insists that Scottish notaries are prohibited from acting as notaries in England and Wales under the Legal Services Act 2007. It says all practising notaries must be authorised and enrolled by the Faculty Office.

The Society, which has taken legal advice on the issue, believes Scottish notaries are exempt under the Act because it recognises their statutory basis.

The issue was first raised two years ago by the former Council member for England and Wales, Alberto Costa. More than 200 Scottish notaries are currently practising in London alone.

Full details and background:

The issue of Scottish notaries public working in England and Wales and the restrictions applying to them was raised by Council member Alberto Costa in 2013. The Legal Services Act 2007 defines who can practise as a notary in England and Wales and Scottish notaries were considered to have been prohibited from acting under the Act. At Mr Costa’s urging, the Society’s Council decided to obtain the opinion of counsel on the extent to which Scottish notaries can act in England and Wales. The Opinion made a number of points:

1. On the basis that a person holding the office of notary public in Scotland is authorised by or by virtue of an “enactment” other than the Legal Services Act 2007 to carry on "notarial activities" (as that expression is understood in the context of the Legal Services Act 2007: paragraph 7, schedule 2), such a person is an "exempt" person under that Act and may to that extent carry on in England and Wales, without being authorised and enrolled as a public notary by the Master of the Faculties, activities that (i) he or she is authorised to carry on by virtue of being a Scots notary public and that (ii) fall within the concept of "notarial activities" in the Legal Services Act 2007.

2. Otherwise, in order to carry on "notarial activities" in England and Wales, such a person must become authorised as a public notary in England and Wales, in which case, in addition to "notarial activities", he or she would also be able to carry on "reserved instrument activities", "probate activities" and "the administration of oaths" within the meaning of paragraphs 5, 6 and 8 of schedule 2 to the Legal Services Act 2007.

3. In consequence, a person holding the office of notary public in Scotland who is not authorised by the Master of the Faculties to practise as a public notary in England and Wales but who is practising in England and Wales as an exempt person for the purposes of the Legal Services Act 2007 can legitimately do all things (including executing all documents) that English public notaries customarily did before 1 January 2010 (to the extent that those were also things - including the execution of documents - that a Scots notary public is authorised to do) but may not carry on reserved instrument activities, probate activities or administer oaths within the meaning of paragraphs 5, 6 and 8 of schedule 2 to the Legal Services Act 2007.

4. It follows that the restrictions on the ability of a Scots notary public (who is not authorised by the Master of the Faculties) to execute documents arise from the exclusion of reserved instrument activities and probate activities (as defined) from "notarial activities" under the Legal Services Act 2007. Changes to notarial practice would not alter that state of affairs since the restrictions referred to above derive from the Legal Services Act 2007. However, the Lord Chancellor has power under paragraph 9 of schedule 3 to that Act to extend the exemptions in the schedule.

The Faculty Office of the Archbishop of Canterbury (which is the regulator of notaries in England and Wales) then instructed an opinion to respond to the Society's counsel. The Faculty Office do not agree with the Society's counsel's views. Their counsel concludes that the proposition that the word “enactment” in a statute applying only within England and Wales includes statutes applying only within Scotland is incorrect. His view is that had the UK Parliament wished to prejudice the Faculty Office’s jurisdiction as regulator of notaries in England and Wales, it would have expressly stated that and that the UK Parliament could not have intended to intrude into the regulation of notaries public in Scotland without specific provision.

We met with the Faculty Office to discuss the two issues arising from their opinion:

• The issue of the meaning of “enactment”; and
• The private international law implications

We made the point that on the meaning of ‘enactment’, counsel for the Faculty Office mis-directed himself. The Interpretation Act 1978, section 23A applies to Acts of the Scottish Parliament in limited respects. What, however, is of significant importance is section 5 of the Interpretation Act which states that “in any Act, unless the contrary intention appears, words and expressions listed in schedule 1 to this Act are to be construed according to that schedule”. Schedule 1 provides the definition of “enactment”. In schedule 1, enactment is defined as “not including an enactment comprised in or an instrument made under an Act of the Scottish Parliament”. By implication therefore, Acts of the United Kingdom Parliament, such as the Solicitors (Scotland) Act 1980 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, are UK Parliament statutes and therefore fall within the definition of “enactment”. The Legal Services Act 2007 Act is law in England and Wales not in Scotland and that there was no need for there to be a Sewel motion or legislative consent motion before the Scottish Parliament.

As a matter of private international law, under Scottish private international law, the rule referring the execution of contracts simply to the lex loci actus (the law of the place of execution) has been reconsidered. There is Scottish authority to the effect that there are cases where deeds framed according to the law of the country where they are to take effect, will be sustained irrespective of the place of signature.

Furthermore, Scottish notaries could be exempt from the 2007 Act if they perform notarial activities otherwise than for or in expectation of a fee, gain or reward.

Unfortunately, we have not been able to reach agreement with the Faculty Office about practice rights for Scottish notaries public in England. The Faculty Office hold to the view that their interpretation of the law is correct and that Scottish notaries acting in England will do so in contravention of the Legal Services Act 2007 (which may have criminal law consequences). Accordingly, the Society's existing guidance for Scottish notaries practising in England and Wales continues in effect.

The Society is examining other options to come to a resolution and will report when there are further developments.