E-notarisation and e-apostilles are now available. Let’s have a look at what they are and how they differ from the traditional paper-based documents notaries in England and Wales have always produced.
Firstly, e-notarisation is a fairly new concept, especially when you consider that the first notaries in England and Wales date back to the 11th and 12th centuries! Some overseas jurisdictions have been using variations of e-notarisation for some time now, but as working patterns and methods have changed, so too has English and Welsh notarisation and apostilles. It is worth pointing out that electronic (digital) and remote (from a distance) notarisations are different, you can have one without the other. Everything can be done completely online or handled in a face-to-face meeting with all documents produced digitally when conducted as an e-notarisation. Sometimes only the notary will sign the document and on other occasions will forward the documents on to have one, or multiple clients sign them too. I use NotarySign, which is a new platform using DocuSign, IDNow and Zoom to manage the entire system. The importance of ensuring all documents, whether digital or paper are useable, secure and reliable is paramount. I will use this opportunity to reflect on what is needed to do this.
We must first identify our clients, whether this be a person or a company. Traditionally this has been done by physical appearance and the client will present their original identity document such as a passport or driving licence. Now, people are starting to use NFC chip reading apps and websites to perform identity checks. I personally use Credas and DocuSign, and if you need a remote notarisation, I will send you a link to complete your identity check this way, as well as providing scans or photographs of these documents. You will also need to have the originals with you when we have our signing meeting. Companies can be checked using the appropriate registers and documents.
Notaries in England and Wales must ensure our notarisations are completed in this jurisdiction, which isn’t a problem when conducted face-to-face, but must be done remotely too. It is worth noting that not all documents can be completed remotely. Affidavits, oaths and declarations are among those that need to be done in-person, we can produce them digitally during the course of a meeting. However, there are some documents that we cannot reproduce electronically, in particular those that are subject to Crown Copyright, for example birth, marriage or death certificates and DBS certificates.
Once the documents have been drafted and agreed, I will prepare a single pdf document to be signed digitally. This can either be with a signature that you already have electronically, using a stylus or typing your name into the relevant box. The document will record when you signed too. The import thing we need to note about signatures is that we will be using Qualified Electronic Signatures (QES). QES add security and traceability, and NotarySign signatures will all be produced in accordance with EU regulations to ensure that they are widely accepted. Simple Electronic Signatures (SES) are just not suitable as they offer no certification. To ensure that the correct person has signed the document (and their device hasn’t been used by someone else) I will be hosting a simultaneous video call. This is where the traditional notarial element comes in. Notaries, not only confirm that the right person has signed the document, but also that there is capacity, the absence of duress and compliance, all ensuring that the document is legal and valid. If at any point, any of these elements or others are called into question, the process will be stopped, and a face-to-face meeting will be required. This notarial element cannot be done by DocuSign themselves or other similar providers, we, as a profession will be bringing our experience and expertise to the digital service. Once everyone that needs to have signed it, or in the case of a notarial certificate that only I sign, I will attach my signature and seal in the relevant places and download the full document ready to be emailed.
Sometimes you may need an apostille on your document. This is a further level of verification issued by the Foreign, Commonwealth and Development Office (FCDO), and is often required on documents. For now, it is only the signatures of notaries and solicitors that will be apostilled and apostilles won’t be attached to HMRC or court documents for example. When the FCDO issue an apostille, they will create a cover sheet to which they attach the apostille and the notarial document. This is because they cannot add a page when using the QES system. Sometimes documents also need to be sent to the relevant embassy, but at this time, I do not know which embassies will accept this new format, and we need to find this out before undertaking a digital format if you need consular legalisation. The FCDO currently have processing times of 20 working days for paper apostilles, and in September we were informed that this is significantly faster for digital ones.
We will, as ever, need to ensure that the documents produced are usable by the recipient, and some jurisdictions, firms and others will just not accept them at this time. I will of course, work with you to ensure that whatever is produced, whether digital, paper or both is usable, enforceable, secure and effective.