Electronic Signature Laws & Regulations - Scotland

UK eIDAS applies to the whole of the UK. However, Scotland also has its own separate statutory regime for electronic signatures which sets it apart from England, Wales and Northern Ireland. Our guide to e-signature laws and regulations in England, Wales and Northern Ireland is available here.

Types of Electronic Signatures

UK eIDAS creates a hierarchy of 3 types of electronic signatures.

Article 3(10) defines a simple electronic signature as “any data in electronic form that is attached to or logically associated with other data in electronic form, and which is used by a natural person to sign.” The standard Adobe Acrobat Sign product creates a simple electronic signature.

UK eIDAS also recognises two types of digital signature which are produced using public key cryptography and provide a higher level of identity assurance: an advanced electronic signature (AdES) and a qualified electronic signature (QES).

In contrast to English law (which is generally conducive to executing documents with a simple electronic signature), Scots law ascribes more importance to AdES and QES.

AdES is defined in Article 26 and QES is defined in Article 3(12) of UK eIDAS. For a general overview of the legal and technical characteristics of AdES and QES, please visit the European Union legality page.

This guide is complementary to the Law Society of Scotland’s Guide on the use of Electronic Signatures here (LSS Guide). The LSS Guide aims to assist the legal profession with the use of electronic and digital signatures in commercial contracts, and to suggest best practice in this area.This guide focuses on transactions governed by Scots law.

Our guide to using electronic and digital signatures in cross-border transactions is available here. The cross-border guide may be helpful in circumstances where a party to a Scots law transaction is incorporated or located overseas, or if a party contemplates enforcement of the transaction outside of Scotland.

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.

It also provides that electronic signatures are admissible in evidence in legal proceedings. Section 7 of the UK Electronic Communications Act 2000 (ECA 2000) 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. But electronic signatures are generally valid under Scots law. This is because under the Requirements of Writing (Scotland) Act 1995 (RWSA), most documents do not need to be made in writing and do not legally require a signature.

In 2012, Scotland amended the RWSA. The amended RWSA allows documents which must be made “in writing” under section 1(2) of the RWSA to be signed electronically and have an equivalent status to a “traditional” (paper) document.

Section 1(2) documents include:

• documents relating to land (such as missives, dispositions and leases)
• gratuitous unilateral obligations, except those undertaken in the course of business
• “truster as trustee” trusts

Section 1(2) documents must be signed or “authenticated” with an AdES (Regulation 2 of the Electronic Documents (Scotland) Regulations 2014 (2014 Regulations)) to be valid.

Self-proving or probative status of electronic documents

Whether an electronic document is valid is not the only question when assessing the value of a document that is signed electronically. The RWSA draws a distinction between documents that are valid and those that are “probative”. An electronic document may be valid but may not be probative. A probative document is one which is presumed to be validly authenticated based on its appearance (self-proving) and no further evidence is required to prove valid execution. For an electronic document to be self-proving, the electronic signature must be a QES (Regulation 3 of the 2014 Regulations). An electronic document authenticated with a QES has the equivalent standing of a traditional document signed in the presence of a witness.

Neither a simple electronic signature nor an AdES can be self-proving under Scots law. Though note that, as discussed above, they are still admissible in legal proceedings (section 7 of the ECA).

Unless there is a specific statute covering a particular type of document, there is no statutory requirement as to how documents that fall outside section 1(2) of the RWSA should be executed. Thus, a simple electronic signature is generally a valid form of execution for these documents.

Special considerations

Transacting with public sector bodies
A public sector body may decide whether to permit the use of electronic signatures. It is notable that public registries are striving to modernise their registration practice. Companies House, the Intellectual Property Office, the Civil Aviation Authority and the UK Ship Register now generally accept documents bearing an electronic signature.

Documents submitted to Registers of Scotland
To register an electronic document in any registers maintained by the Keeper of the Registers of Scotland, the document must have probative (self-proving) status. This means the electronic signature must be a QES.
At the time of writing, it is not yet possible to register electronic documents in the Land Register of Scotland or the Register of Sasines. However, the Register of Deeds (in the Books of Council and Session) accepts electronic documents signed with QES (https://kb.ros.gov.uk/other-registration-types/register-of-deeds/qualified-electronic-signatures/qes-guide).

Use cases that generally require a traditional signature

• Wills and codicils
• Real estate documents (including security documents) that are to be registered in the Land Register of Scotland or the Register of Sasines
• Assignations of, or grants of security over, patents under section 31(6) of the Patents Act 1977
• Negotiable instruments (such as bills of exchange, promissory notes and chattel mortgages) must exist in “physical form”
• Powers of attorney registered with the Office of the Public Guardian (Scotland)
• Any Scots law documents requiring notarisation or legalization for use in overseas jurisdictions
• HM Revenue & Customs (HMRC) accepts electronic signatures on documents on which stamp duty is payable such as stock transfer forms; but certain documents submitted to HMRC still require a handwritten signature on a paper document