Electronic Signature Laws & Regulations - England, Wales & Northern Ireland

Note:

Brexit

The United Kingdom left the European Union on 31 January 2020. This led to a transition period, during which time the UK and the EU negotiated the future UK-EU trade relationship, and the UK was generally treated as if it were still an EU Member State. The transition period ended on 31 December 2020 and the UK is now regarded as a “third country” when applying and interpreting EU law.

Prior to the UK’s withdrawal from the EU, Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS) had direct effect in the UK. eIDAS established an EU-wide legal framework for electronic signatures and other trust services.

On 31 December 2020, eIDAS was incorporated (with minor amendments) into UK domestic law in accordance with section 3 of the European Union (Withdrawal) Act 2018 (UK eIDAS). UK eIDAS largely mirrors eIDAS save for those provisions which the UK government has deemed “inappropriate or redundant”. Amendments include the removal of references to “Member States” and the repeal of the interoperability framework for national electronic ID (e-ID) schemes. This means that the UK’s national e-ID scheme, GOV.UK Verify, is no longer a participant in the EU interoperability framework for national e-ID schemes under eIDAS.

A detailed analysis of the impact of Brexit on UK electronic signature law and practice is laid out in an Adobe white paper, co-authored with CMS, available here: https://helpx.adobe.com/content/dam/help/en/sign/Brexit%20briefing%20-%20What%20is%20the%20impact%20on%20electronic%20signature%20laws%20in%20the%20UK.pdf.


Overview

This guide examines the electronic signature laws of England, Wales and Northern Ireland (English law). There is a separate statutory regime for electronic signatures in Scotland. Adobe has published a guide to Scots law which can be found at: (https://helpx.adobe.com/sign/using/legality-scotland.html).

In addition to UK eIDAS, electronic signatures are regulated by the Electronic Communications Act (ECA 2000), the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016, and case law.

Like eIDAS, UK eIDAS also recognises two types of digital signatures which are produced using public key cryptography: advanced electronic signatures (AdES) and qualified electronic signatures (QES). AdES and QES are rarely mandated for English law transactions (but see ‘Deeds that are registered with HMLR’ below). English law is generally conducive to executing documents with an electronic signature and does not require a digital signature. The use of QES is generally reserved for cross-border transactions or other transactions where the parties desire a higher degree of ID verification.

For more information about AdES and QES, please visit the European Union legality page (https://helpx.adobe.com/sign/using/legality-european-union.html).

This guide focuses on transactions governed by English law. Our guidance on using electronic and digital signatures in cross-border transactions is available at: https://helpx.adobe.com/sign/using/eu-uk-cross-border-transactions.html.

 

Admissibility and legal validity of electronic signatures

Article 25 of UK eIDAS provides that an electronic signature cannot be denied legal effectiveness solely because of its electronic nature.

The statute also provides that electronic signatures are admissible as evidence in legal proceedings. Section 7(1) of the ECA mirrors the admissibility provision in UK eIDAS:

“In any legal proceedings, an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and the certification by any person of such a signature, shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data."

The ECA 2000 does not expressly provide for the legal validity of electronic signatures. This gap has been filled by case law. Recent judgments from the Court of Appeal and the High Court have decided that electronic methods of signing, such as a typed name in an email and clicking on an “I Accept” button, do satisfy a statutory requirement for a valid signature. This is subject to the signatory demonstrating an “intention to authenticate” the document and satisfying any formalities relating to execution of that document (for example, formalities that a signature be witnessed, or the document be executed as a deed).

The Law Commission was concerned that legal uncertainties were impeding the use of electronic signatures and e-signing platforms. In September 2019, following a lengthy consultation period, the Law Commission published a report on the electronic execution of documents (https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2019/09/Electronic-Execution-Report.pdf) (2019 Report). The findings in the Report were endorsed by the UK government in March 2020.

The Law Commission concluded that the combination of UK eIDAS, ECA 2000 and case law means that an electronic signature is capable of meeting a statutory requirement for a signature if an authenticating intention can be demonstrated. This view is not limited to a particular type of electronic signature: English law is flexible. The Law Commission observed in paragraph 3.16 of the 2019 Report that, “English courts have treated electronic signatures as capable of binding parties in the same way as a handwritten signature, provided that there is an intention to authenticate.”

The 2019 Report also set out a “statement of law” articulating the Law Commission’s high-level conclusions on the validity of electronic signatures under English law. The statement of law has broad application and is not restricted to commercial and consumer documents. It confirms that electronic signatures may be used to execute documents (and deeds) provided that the person signing the document intends to authenticate it; and (ii) any execution formalities are satisfied.

An electronic signature is therefore capable of satisfying a requirement under English law to be in writing and/or signed and/or made under hand.

Note:

QES under UK eIDAS.

EU Member States have the obligation under eIDAS to establish, maintain and publish trusted lists of Qualified Trust Service Providers (QTSPs) and the qualified trust services provided by them. A QTSP certified in any EU Member State will be recognized as a QTSP by all other Member States and, under UK eIDAS, by the UK. Accordingly, no EU Member State nor the UK may question the qualified status once a QTSP has been added to the trusted list by the supervisory authority of another Member State. 

The Information Commissioner’s Office (ICO) is the supervisory body for QTSPs in the UK. At the current time (April 2021), there are no QTSPs supervised by ICO or admitted to the UK trusted list administered by tScheme.

Although UK eIDAS continues to recognise QES and other qualified trust services from QTSPs established in EU Member States, no reciprocal agreement currently exists. This means that if a QTSP were to be supervised by ICO and admitted to the UK trusted list, their QES and other qualified trust services would not be automatically recognised and accepted as equivalent in EU Member States.


Special considerations

Transacting with public sector bodies

The 2019 Report states that the use of electronic signatures should not be mandatory, and a public sector body may decide whether it wishes to utilize them.

It is notable that public registries are striving to modernise their registration practice. HM Land Registry, Companies House, the Intellectual Property Office, the Civil Aviation Authority and the UK Ship Register now generally accept documents bearing an electronic signature.

 

Witnessing and attesting deeds

Deeds are a type of document with more stringent formality requirements. There are relatively few transactions which must be made by deed rather than by simple contract. Notable examples include land transactions, mortgages, powers of attorney and agreements made without consideration.

Deeds may be validly executed with an electronic signature by an individual (under section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989) and by a company (under section 44 and section 46 of the Companies Act 2006).

The 2019 Report gave a clear signal that where a deed must be witnessed, the witness must be “physically present” with the signatory when the deed is signed. The witness must also attest to the signature. The First-Tier Tribunal (Property Chamber) has subsequently followed this lead and held that a deed may not have been validly executed if the witness was not physically present when the signatory signed the deed Man Ching Yuen v Landy Chet Kin Wong First Tier Tribunal (Property Chamber), 2020 (ref 2016/1089)).

It is therefore possible to validly execute a deed using an electronic signature under English law and satisfy any requirements to witness, attest and deliver the deed. The Law Commission has recommended that an industry working group be convened to advise on the “practical and technical obstacles to video witnessing of electronic signatures on deeds and attestation.”

See our guide on How to execute deeds on Adobe Acrobat Sign for further information.

 

Deeds that are registered with HM Land Registry

In July 2020, HM Land Registry (HMLR) announced that it would accept electronic signatures on transfers and other registrable deeds on condition that they satisfied HMLR’s practice requirements. HMLR’s requirements are very prescriptive. A conveyancer must set up and control the signing process on the Adobe Acrobat Sign platforms. The conveyancer is obliged to provide a certificate to HMLR which certifies that the signing process complies with HMLR’s practice requirements. Conveyancers who use the Acrobat Sign platforms for the execution of any deeds lodged with HMLR should review our guidance on HMLR Requirements (https://helpx.adobe.com/sign/using/adobesign-hmlr-requirements.html).

HMLR will also permit QES for electronic dispositions under section 91 of the Land Registration Act 2002. The implementation date for QES will be announced shortly. QES will remove the need for witnessing and attesting deeds, but the signing process will have to meet HMLR’s own practice requirements.

 

Use cases that require a handwritten signature

Despite the Law Commission’s 2019 Report and its strong endorsement of e-signing, there are use cases where it may not be appropriate to use electronic signatures:

  • wills under the Wills Act 1837;
  • negotiable instruments (such as bills of exchange, promissory notes and chattel mortgages) must exist in “physical form”;
  • lasting powers of attorney registered with the Office of the Public Guardian;
  • documents requiring notarisation or legalisation; and
  • HM Revenue & Customs (HMRC) normally stamps a wet-ink version of a document on which stamp duty is payable, such as a stock transfer form. But in response to the COVID-19 pandemic, HMRC has temporarily suspended its rules and will accept electronic signatures whilst the COVID-19 measures remain in place.
Note:

Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures. However, Adobe cannot provide legal advice. You should consult an attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Adobe provides this material on an "as-is" basis. Adobe disclaims and makes no representation or warranty of any kind with respect to this material, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, or accuracy.

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