Last week, Cardiff University announced that its Law School had hosted a hearing of the Church of England’s Court of Faculties of the Archbishop of Canterbury. The Court is an ancient jurisdiction which historically sat at Doctors Commons until it was disbanded in the 19th century[1] and since 1920 has been at the Faculty Office in Westminster. It is believed that this is the first sitting of the Court outside London and certainly the first ever in Wales. This is one of the little-visited nooks and corners of ecclesiastical law, particularly so in relation to the appointment and regulation of Notaries. On this, the Faculty Office stresses: “a Notary is a secular lawyer and is not otherwise associated with the Archbishop or the Church of England”[2]. In this post we explore its origins and present-day functions[3].

Origins

The Faculty Office has its origins in the Ecclesiastical Licences Act 1533, (a.k.a. “the Act Concerning Peter’s Pence and Dispensations”), which in addition to outlawing the payment of Peter’s Pence and other payments to Rome, transferred certain powers formerly held by the Pope concerning the issue of dispensations, to the Archbishop of Canterbury. Prior to the Reformation, the issue of Special Marriage Licences and the appointment of Notaries Public were undertaken by the Pope or the Papal Legates, and consequently these functions within the Act are sometimes referred to as the “legatine powers”.  Under the canon law of the time, one notary was considered as being equal to two witnesses, and so a statement signed by a notary could not be challenged in a court of law. The1533 Act did not specifically identify the granting of degrees as one of the legatine powers transferred to the Archbishop[4], but it is understood that this power fell within the general term “faculty”[5].

The awarding of the so-called “Lambeth Degrees” allowed the Archbishop “to override the requirements of the only two universities at the time, Oxford and Cambridge, and dispense candidates from residency and, in some cases, examination, at a time when it was difficult to travel to the universities, often because of outbreaks of the plague”. Such an award requires confirmation by the Crown and consequently the degrees are known as “degrees of the realm”, and can only be awarded to those who are capable and willing to take the Oath of Allegiance to the monarch. The 1533 Act also included provisions relating to: the creation of rights as to pews, monuments, and rights of burial places; the grant licenses such as a faculty to erect an organ in a parish church, to level a churchyard; or to exhume bodies buried in a church cemetery.

Present day functions

The Faculty Office of the Archbishop of Canterbury continues three of the functions designated in the 1533 Act: the admission and regulation of Notaries Public in England and Wales; issuing Special Marriage Licences for couples to marry in a particular church building where they could not otherwise obtain the correct legal preliminary to marry; and awarding of “Lambeth degrees”, following examination or thesis or in recognition of distinguished service to the Church. [Frank holds, inter alia, an STh (Lambeth)]. Although the relevant parts of the 1533 Act remain in force, these have been supplemented by more recent enactments.

The Faculty Office is presided over by the Master of the Faculties (the “comissarye” of the 1533 Act), the most senior ecclesiastical judge who is generally a judge of the Supreme Court[6]. Day to day administration is the responsibility of the Registrar (a post currently held jointly), who are assisted by a small team of Clerks and other support staff.

Special Licences and Lambeth Degrees

These provisions relating to special licences and Lambeth Degrees are probably better known than those concerning Notaries Public, below. The Faculty Office’s FAQs explain: “A ‘faculty’ is a technical name for a legal permission or dispensation. A person who is granted a faculty will be able to do something which they would not otherwise be permitted to do. The Faculty Office of … issues three types of faculty: Special Marriage Licences, for couples to marry in a particular church building where they could not otherwise obtain the correct legal preliminary to marry; Lambeth degrees, to award a full degree to a person who has not been awarded that degree by another academic institution; and Notarial faculties to appoint a person as a Notary and to permit them to practise.”

Marriage by Special Licence granted by the Archbishop of Canterbury or any other person by virtue of the Ecclesiastical Licences Act 1533 is permitted under section 5(b) Marriage Act 1949; the Faculty Office provides guidance on marriage; in Church after divorce; in School, College and University Chapels; and in the case of Foreign Nationals / Foreign Domicile. Under Canon C4, an Archbishop’s faculty is also required: for a person who is to be ordained as a member of the clergy, who has been divorced or who is married to a spouse who has been divorced; and for overseas clergy who wish to minister in England, under the Overseas and Other Clergy (Ministry and Ordination) Measure 1967.

The recognition of the Archbishop’s power to award degrees is included in s 216(1) Education Reform Act 1988 and the updated list of recognized bodies in the Education (Recognised Bodies) (England) Order 2010 SI 2618.

Notaries

Despite their regulation through the Archbishop, in 1801 it was necessary to enact the Public Notaries Act 1801, “An Act for the better Regulation of Publick Notaries in England”,  the preamble to which stated: “Whereas it is expedient, for the better prevention of illiterate and inexperienced persons being created to act as or admitted to the faculty of publick notaries, that the said faculty should be regulated in England”. Further statutory measures were passed in 1833 and 1843. Although sections of the 1801 and 1844 Acts remain, the Master of the Faculties jurisdiction over the Notarial Profession was confirmed and enhanced by the Courts and Legal Services Act 1990 and the Legal Services Act 2007, both of which confirmed the Master’s statutory powers to make Rules for the regulation of the profession. Although there are two membership organisations for Notaries, The Notaries Society and The Society of Scrivener Notaries, these have representative functions only and are not part of the Faculty Office.

The Faculty Office web page provides a useful summary of the Notaries Rules & Regulations and also Disciplinary Decisions of the Court of Faculties. The latter notes “Recent decisions of the Court of Faculties will be published on the website from time to time”, the most recent one being the decision of the court on 22 May 2014 In the Matter of Ella Elizabeth Imison, A Notary. The potential implications of such rulings will be evident from the decision of the court on Penalty and Costs: £113,601.95 was awarded to the complainant of which £94,581.12 was payable within six weeks by the Respondent, who was also ordered to pay 75% of the court costs. In addition, she was suspended from acting as a Notary for 4 months and the for following 5 years could only act in partnerships with another Notary or as an employee within a notarial firm.

Footnote

Scottish notaries public are admitted and regulated by the Council of The Law Society of Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

In view of the limited published information in this area, David would appreciate any corrections and additions.

[1] D N Pocklington, “The Continuing Relevance of Doctors’ Commons”, (2011) Hilary/Easter Issue, 116, Law and Justice (The Christian Law Review) 52.

[2] The Society of Scrivener Notaries further explains: “A solicitor is an Officer of the Supreme Court, whilst a Notary is a Public Official. Documents only being used in the UK usually only need solicitor certification. However, if a UK signed or certified copy of the original is being sent to a foreign government or any other overseas institution, it usually requires a notary certification (signature/seal).”

[3] See also Philip Jones’ “Dispensation and Ecclesiastical Law” and “The Break with Rome”.

[4] W Adam Legal Flexibility and the Mission of the Church – Dispensation and Economic in Ecclesiastical Law [2011 Ashgate, Farnham], page 73.

[5] Noel Cox, “Dispensation, Privileges, and the Conferment of Graduate Status: With Special Reference to Lambeth Degrees”, [2002-3] 18 J Law and Religion 101.

[5] The current Master is Charles George QC. Called to the Bar in 1974, he was appointed Queen’s Counsel in 1992. As the most senior ecclesiastical judge in England, he is Dean of the Arches and Auditor of the Chancery Court of York. He is a Deputy High Court Judge, a Recorder of the Crown Court, a Bencher of the Inner Temple, Visiting Lecturer in European Environmental Law and Visiting Fellow of the Centre of European Law, both at King’s College London.