Signing powers for councillors: guidance

Chapter 1

Introduction

The signing duties of Councillors consist of taking declarations, authenticating signatures and giving certificates. This information manual on Councillors' signing duties has been produced to assist Councillors in completing the many and varied forms which they may be asked to sign.

Chapter 1, this introductory chapter, describes the manual, outlines the extent of Councillors' signing powers and offers some general guidance on the approach to signing any document.

Chapter 2 deals with signing duties where the Councillor has personal knowledge of the individual making an application or of the contents of a document or of events that have happened. In this personal capacity the Councillor is making a statement of matters within their personal knowledge and is responsible for the accuracy of this statement.

Chapter 3 deals with taking written declarations, where the Councillor is confirming, by his signature, that the declaration has been made. The Councillor, however, is not required to exercise judgement, discretion or personal knowledge and the Councillor takes no responsibility for the accuracy of the contents of the document signed (declared) before them, but simply confirms that it was made in the correct way.

The appendices contain examples of the styles of some of the many and varied forms which a Councillor may be asked to sign. Appendix A contains examples of documents corresponding to Chapter 2. Appendix B contains examples of documents corresponding to Chapter 3. The styles to be found in appendices A and B are not prescriptive: in some cases there may be local variations or more recent versions. The appendices are arranged in the same order as the guidance notes and are cross referenced to the relevant sections.

It is important that Councillors take care when signing a document. A disputed document could end up as the basis of legal proceedings. The validity of a document signed by a Councillor may form the basis of a civil court action. Criminal proceedings may result if the person offering a document to a Councillor for authentication was trying to perpetrate some type of fraud.

1.1 Councillors' Signing Powers

1.1.1 Statutory Authority

The authority for Councillors to countersign documents is new. It is effective from 10 December 2007. It has been granted by the Criminal Proceedings etc. (Reform)(Scotland) Act 2007. The relevant provisions of the Act are section 76 and subsection 62(6). Section 76 states:

76 (1) ...

(2) A member of a local authority, despite not being a JP, may exercise signing functions in the same manner as a JP.

(3) Where a member of a local authority exercises a signing function, the document, declaration or certificate has effect

(a) as if that function were exercised by a JP,

(b) even where that document, declaration or certificate requires (or bears to require) to be signed, authenticated or given by a JP,

if the words "member of a local authority" appear on it adjacent to the member's signature.

(4) ...

(5) A JP, stipendiary magistrate or member of a local authority may not charge a fee for exercising signing functions.

(6) In this Part, "signing functions" are

(a) signing any document for the purpose of authenticating another person's signature,

(b) taking and authenticating by signature any written declaration,

(c) giving a signed certificate of

(i) facts within the giver's knowledge, or

(ii) the giver's opinion as to any matter.

This section gives Councillors the power to sign certain documents that may be signed by a JP and defines the nature and extent of that power.

Subsection 62(6) states:

62 (6) A JP or stipendiary magistrate may exercise signing functions at any place in Scotland.

This subsection, read with subsection 76(2), defines where a Councillor may perform their signing functions.

1.1.2 Documents That A Councillor May Sign

The circumstances where a Councillor may sign a document are defined in subsection 76(6) of the Act (above).

• A Councillor may authenticate another person's signature. This is acting as a witness to the fact that the other person signed the document.
• A Councillor may take, and authenticate by their signature, a written declaration. Usually, this involves circumstances where a person has to make a Statutory Declaration in terms of the Statutory Declarations Act 1835.
• A Councillor may sign a document confirming something that the Councillor personally knows to be true. This includes certifying that the photographs to accompany a passport application are a true likeness of the applicant or that a document is a true copy of an original.
• A Councillor may sign a document expressing the Councillor's opinion. This includes certifying that, in the Councillor's personal opinion, the applicant is a fit and proper person to hold some office or to be granted a licence or certificate.

It may sometimes be difficult to work out if a document may be signed by a Councillor. Councillors' signing powers are new. Few, if any, documents will state explicitly that a Councillor may sign.

Generally, Councillors are likely to be asked to sign documents which say that a JP may sign. But not all documents that a JP can sign may be signed by a Councillor. This manual contains examples of types of document that Councillors may sign. It does not, however, contain an exhaustive list of such documents.

Councillors should exercise their judgement and discretion in deciding whether or not they are entitled to sign a particular document. If in doubt about whether they may sign a particular document, a Councillor should consult a their Council Solicitor or a legally qualified member of staff in the Legal Department of their Council. If a Councillor is unsure whether they may sign a particular document they should decline to do so until they have obtained proper advice.

Councillors may exercise their signing functions anywhere in Scotland. They do not have to be within the boundary of their local authority area when they exercise their signing functions.

Councillors may not accept payment for the discharge of their signing duties.

Foreign Documents

The office of Justice of the Peace exists in many overseas countries, particularly members of the Commonwealth. JPs are therefore internationally recognised and are often identified as a class of person who can countersign documents overseas. For example, a document countersigned by a JP in New Zealand will usually be accepted in Scotland and a document countersigned by a Scottish JP will usually be accepted in New Zealand.

The new signing powers of Councillors have been created by Scottish legislation. This means that Councillors may sign appropriate British documents that say that a JP may sign. However, it is not clear what the position is in respect of documents from overseas countries. A document from an overseas country that says that JP may sign might not be regarded being valid in that overseas country if it is signed by a Councillor. A Councillor who is asked to sign such a document should check that it will be accepted in that overseas country.

1.1.3 Documents That A Councillor May NOT Sign

A document wrongly signed by a Councillor will be invalid. That could have substantial legal consequences.

There are two types of document which a JP can sign that a Councillor may not sign. Both of these require the applicant to be placed on oath. These are sworn statements and court orders. Councillors may not administer an oath or affirmation.

Sworn Statements

A sworn statement, sometimes called an affidavit, is a written record of oral testimony (something said on oath). An affidavit takes the form of a document that is signed by the person making the statement and countersigned by a JP or other person empowered to administer oaths. However, it is, formally, a record of spoken testimony. Therefore, Councillors cannot sign affidavits because Councillors are only empowered to take written declarations and may not administer oaths.

Sworn statements can usually be identified by the words used. If a document is described as an affidavit or deposition or if it contains any of the words, "oath", "affirmation" "sworn", "deponed" (which means stated on oath) or "compeared" (which means appeared or was represented in legal proceedings) then it is a sworn statement.

Court Orders

There are two types of court order that JPs are commonly asked to sign. These are warrants and Emergency Child Protection Orders.

A warrant is a court order. It can only be granted by a judge. JPs are judges in either the District Court or the Justice of the Peace Court. Councillors are not judges of these courts. Therefore, Councillors may not sign warrants.

Examples include warrants to search for stolen goods, warrants to search for drugs, warrants to enter premises to inspect or disconnect gas or electricity supplies, warrants to enter premises to stop statutory nuisances (e.g. water leaks) and warrants to enter premises to facilitate the treatment of persons who are mentally ill.

An Emergency Child Protection Order is a court order. Like a warrant, it can only be granted by a JP. Councillors may not sign Emergency Child Protection Orders.

1.2 Checklist for Any Document

1. Do I know what the document is and do I understand its purpose?
2. Am I entitled to sign this type of document?
3. Am I confident of the applicant's identity?
4. Is the applicant entitled to ask me to sign this type of document?
5. Do I know the applicant, and, if not, does it matter?
6. Am I simply acting as a witness to the applicant's signature?
7. Am I making a statement from my own knowledge?
8. Is the document fully completed, or are there gaps that must be scored through?
9. Are there any alterations that must be initialled?
10. Do I have enough information to sign?
11. Write "Member of a Local Authority" in full beside your signature.
12. Make a record.

1.2.1 Do I know what the document is, and do I understand its purpose?

Give some thought to this as it will help you to decide if you are being asked for information from your own store of knowledge -or merely being asked to formalise the giving of a statement by another. " I state that this information about this man is true" as opposed to "this man states, in my presence, that this information is true".

Remember, you are under no obligation to sign any document and you should not sign it if you feel uncomfortable about doing so.

1.2.2 Does it say on the form that a JP or Councillor may sign?

It usually will say somewhere, perhaps in notes which have been detached. Ask the applicant to bring the notes along with the form, or the letter from the solicitor or company which suggests signature in front of a Councillor or JP. Don't hesitate to contact your council Legal Department to make sure that you are entitled to sign.

1.2.3 Am I confident of the applicant's identity?

You may know the applicant personally, but often the applicant will be a stranger. You should make reasonable enquiries to confirm that the applicant is who they say they are. Identity fraud is common and official documents signed by a Councillor might be used to strengthen a false identity or to abuse the rights of someone who is being impersonated. If possible, ask the applicant for photographic proof of their identity, such as a passport or photocard driving licence. If they do not have such a document, other evidence of their identity should be asked for. Examples might include two or more of the following: a recent utility bill, a lease or mortgage statement, a recent bank statement, a benefit book or similar official document. Some applicants it may have difficulty producing proof of their identity, for example they may have no driving licence or passport and everything else may be in the name of their spouse. Decide what is reasonable in the circumstances. If you are not satisfied that the applicant is who they say they are then refuse to sign and if you think they are impersonating someone else consider notifying the police.

1.2.4 Is the applicant entitled to ask me to sign this type of document?

The form, or the accompanying notes, should say who is entitled to make the application. Legal advice on the competence of the application should only be a phone call to the Legal Department of your Council away, if you are in doubt.

1.2.5 Do I know the applicant, if not, does it matter?

The type of form will dictate this. If someone is signing a declaration or document in front of you then you do not need to know them personally. If it is you who is making the statement then you do need to know them personally, generally for a minimum of two years. If you have not known them personally for the required period then their bringing some form of identification is of no help.

1.2.6 Am I simply acting as a witness to the applicant's signature?

Get them to acknowledge that they understand the contents of what they are signing, and that they understand the seriousness of signing something which is not true. Sometimes the document will have been signed before they come and is not, therefore, signed in front of you. If you are completely confident of the applicant's identity, they should be asked to acknowledge that the signature is theirs. Otherwise, you should ask them to sign the document again in your presence.

1.2.7 Am I making a statement from my own knowledge?

This is where a person or authority is relying on your specific knowledge. Make sure you can honestly answer the questions and are satisfied with those answers.

1.2.8 Is the document fully completed, or are there gaps that must be scored through?

A form should not be capable of being added to or altered after it has been signed. For example, where there is a large space for text but only a little bit used, put a diagonal line through the space.

Where there are sections not used, put a diagonal line through them. Make sure all "Delete where applicable" bits are completed.

1.2.9 Are there alterations that must be initialled?

These should be initialled by you as well as by all parties involved in the application. Documents should be clear and unambiguous. Make sure all the writing is legible and is not open to interpretation.

1.2.10 Do I have sufficient information to sign?

Ask all the questions you need. The applicant must justify their entitlement to make the statement or declaration. However, you should not carry out your own independent investigations. You are not responsible for checking the truth of a declaration or statement made by the applicant. You are only responsible for confirming that the declaration or statement was signed by the applicant in your presence. Of course, if it is you who is making the statement, you must be sure that it is accurate.

1.2.11 Make a record.

Who, what, where, and when. You need to make a record in case the document is challenged in the future. Your record should include the essentials of the application. Record the type of document and the essentials of its content. Record where you were when you signed (e.g. "Edinburgh"). Record the date and time when you signed. Record who applied (their name and address, e.g. "John Smith of 123 Main Street, Anytown"). You may wish to use a hardback notebook to keep your records so that you can answer any enquiry about a document you have signed, perhaps several years later.