Technical Notes 2023, Issue 14 - Elected Members – Signing Duties

1. The purpose of this Technical Note is to advise Members of their signing duties and, in particular, to provide guidance on the types of documentation that Members can and cannot sign.
2. The Criminal Proceedings etc. (Reform) (Scotland) Act 2007, as amended in 2010, identifies the authority for Councillors to countersign documents.  Councillors signing duties consist of taking declarations, authenticating signatures and giving certificates.
3. The Scottish Government published the following document on its website and this provides further details.
4. The 2007 Act authorises Councillors as follows:
   a) A Councillor may authenticate another person's signature, i.e. act as a witness to someone’s signature - in this situation the Councillor is merely witnessing the fact that the person in question signed the document and that the signature is genuine.  The Councillor is not endorsing nor commenting on the content of the document itself.
   
   b) A Councillor may take, and authenticate by their signature, a written declaration - Again this is a matter of the Councillor confirming that the form was signed by the person wishing to make the declaration.  The Councillor is once again not endorsing nor commenting on the declaration itself.  The Councillor should take whatever steps he or she deems necessary to confirm the identity of the applicant and should then ask the applicant to confirm that they wish to make the declaration stated.  The applicant should then sign the document in the presence of the Councillor who then countersigns in the appropriate place adding the words “Member of a Local Authority” after the signature.  Please note this Power relates only to written declarations, some examples of which are noted below.
   Passports

•  
• Where the applicant’s own name has changed
• Where a child’s name has changed
• Where a person is born overseas to British parents
• Where an applicant lacks a birth certificate or marriage certificate.

Births, Deaths and Marriages

•  
• Declaration of parentage by mother or father
• Second marriage ceremony
• Change of name on a birth certificate
• Other declarations to correct minor errors in the Register

c)      A Councillor may sign a document confirming something that the Councillor personally knows to be true e.g. certifying that a passport photograph is a true likeness of the person or that a document is a true copy of the original – in relation to passport photographs, the Councillor must personally know the applicant in such cases.  Councillors should not sign if related to the applicant and it should be noted that the signature confirms that the facts on the form are correct and that the photograph is a true likeness of the applicant.  In certifying a copy of a document as a true copy, the Councillor is only certifying that the copy matches the original, not that the original is genuine and is not endorsing or commenting on the content.  A copy is usually certified by using wording such as:-

          “This is a true copy of the document that was shown to me today on (date).”

          (signature)

          (name of Councillor) “Member of a Local Authority”

(name of Council)
Obviously the Councillor requires to see the original document and ensure that the details on the copy are identical before signing.

d) A Councillor may sign a document expressing the Councillor's opinion e.g. that someone is fit to hold a position - this category deals with opinion as opposed to facts.  It is most commonly in the form of confirming that in the Councillor’s opinion an applicant is a fit and proper person to be granted a particular licence (such as a firearms or shotgun licence) or to hold a particular office.  It is effectively a character reference and so the Councillor should ensure that he or she is satisfied that they know the individual sufficiently well to offer such an opinion.

When a Councillor exercises their signing functions they must write "Member of a Local Authority" next to their signature for the document to be valid.  This does not require to be affixed by stamp – a handwritten statement will suffice.

5. There are two types of document that cannot be signed by a Member. 
   A Councillor may not take a sworn statement – these tend to be Affidavits or depositions which require the person making a statement to be placed on oath, something which Councillor is not empowered to do.
   A Councillor may not grant a Warrant – these require to be signed by a Judge
    
6. It may sometimes be difficult for a Member to work out if a document may be signed in the capacity of Councillor.  Few, if any, documents will state explicitly that a Councillor may sign.  Others may say inappropriately say so.  Members should exercise judgement and discretion in deciding whether or not they are entitled to sign a particular document.  If in doubt about whether you may sign a particular document, you should consult Legal & Democratic Services.  Also, where you are unsure whether you may sign a particular document, you should decline to do so until you have obtained proper advice.
    
7. In terms of best practice, Members should use the following checklist before signing any document
8. Do I know what the document is and do I understand its purpose?
9. Am I entitled to sign this type of document?
10. Am I confident of the applicant's identity?
11. Is the applicant entitled to ask me to sign this type of document?
12. Do I know the applicant, and, if not, does it matter?
13. Am I simply acting as a witness to the applicant's signature?
14. Am I making a statement from my own knowledge?
15. Is the document fully completed, or are there gaps that must be completed or scored through?
16. Are there any alterations that must be initialled?
17. Do I have enough information to sign?
18. Write "Member of a Local Authority" in full beside your signature.
19. Make and keep a record of all signed documents – who, what, where, when & why

8. Members are reminded that they are under no obligation to sign any document and you should not sign it if you feel uncomfortable about doing so.  If in doubt please contact an officer from Legal & Democratic Services.  Members should also be aware that their signature can be interpreted as providing legitimacy – i.e. an endorsement/ approval, which emphasises the need for caution and certainty before signing.

9. Members are advised that where they do decide that it is appropriate to sign a document or form, a “Council Stamp” is not required.  It is only necessary for a Member to write “Member of a Local Authority” beside the signature.  The old “Council Stamp” carries no legal or binding effect and does not impact on the legitimacy of the signature.

10. A frequent example of where Members are asked to sign documentation is a request made to some Members to sign & stamp a “Proof of Life” certificate.  This usually relates to certain constituents who are resident in East Dunbartonshire but have a pension based in another country following time spent working in Europe, and require to provide Proof of Life in order to continue to access their pension.  These document usually include a translation to English and often state that the document requires a signature and stamp from a local authority – the wording usually states that it requires to be signed and stamped at the town hall, embassy or consulate.  This document has no regard to the Scottish legislation which governs what Members can and cannot sign.  It remains the advice of the Chief Solicitor & Monitoring Officer that these documents should not be signed by Members unless it is someone that the Member knows well (outwith attendance at a surgery etc.) and has known for some considerable time.  Otherwise, the constituent should be referred to their own solicitor / notary public or to the relevant embassy / consulate.  Should any Member decide to sign these documents, then the checklist set out above should be rigorously applied, particularly in regard to the identity of the individual.