Commissioner for Oaths

In the past, the Secretariat has been advised that non –practicing barristers could not act as Commissioners for Oaths. This advice was challenged recently and an opinion sought from George Leggatt QC. He has concluded that non –practicing barristers can in fact, act as Commissioners for Oaths. Section 113 of the Courts and Legal Services Act 1990 provides that every “authorised person” shall have the right to use the title “Commissioner for Oaths”. An “authorised person” is defined as “any authorised advocate or authorised litigator”.

An “authorised advocate” is defined in section 119 as “any person (including a barrister or solicitor) who has a right of audience granted by an authorised body in accordance with the provision of this Act”. Section 311 of the Act provides that “every barrister shall be deemed to have been granted by the General Council of the Bar a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the General Council of the Bar)”.

A distinction is therefore drawn between having a right of audience and being entitled to exercise it. Every barrister has a right of audience but whether he or she is entitled to exercise that right depends on the qualification regulations. This distinction is further reflected in the Code of Conduct at paragraph 203.1.

Since the right to use the title “ Commissioner for Oaths” depends only on having a right of audience granted by the Bar Council and not on being entitled to exercise that right, it follows that any barrister, whether practicing or not, may act as a Commissioner for Oaths. It therefore follows that a non-practicing barrister has the right to act as such and is not prevented from doing so by the Bar’s rules of conduct.