Electronic Signature Laws & Regulations - Scotland

Note:

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 was 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

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.

UK eIDAS creates a hierarchy 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 Sign product is regarded as a simple electronic signature.

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

This guide is complementary to the Law Society of Scotland’s Guide on the use of Electronic Signatures  (https://www.lawscot.org.uk/media/370280/lss-electronic-signatures-guide-january-2021-v2-002.pdf) (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 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. It also provides that electronic signatures are admissible in evidence in legal proceedings.

Section 7 of the 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; and
  • “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 relevant question when assessing the value of a document that is signed electronically. The RWSA draws a distinction between documents that are valid and those which 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 (e.g. self-proving). 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.

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. A simple electronic signature is generally a valid form of execution for these documents.

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

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 that require a handwritten signature

  • wills and codicils
  • real estate documents (including security documents) that are to be registered in the Land Register of Scotland, the Register of Sasines or the Books of Council and Session;
  • 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);
  • 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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