The impact of Brexit on electronic signature laws in the UK

The eIDAS Regulation (No 910/2014) (EU eIDAS) came into force in 2016. It created a Europe-wide legal framework for electronic signatures.

Upon the UK leaving the EU, the European Union (Withdrawal) Act 2018 converted EU eIDAS into UK law (UK eIDAS) and modified some of the provisions via a Brexit statutory instrument (eIDAS SI).

• UK eIDAS retains many important features of EU eIDAS, but also introduces several important modifications that impact the legal treatment of electronic signatures. Key points include:
• UK eIDAS preserves the mutual recognition of electronic signatures and other trust services by allowing the technical standards and specifications in UK eIDAS to mirror those in EU eIDAS. This means that e-signing platforms (and trust service providers) established in the EU can continue to provide their trust services to UK customers.
• Under EU eIDAS, only a ‘qualified electronic signature’ (QES) has the equivalent legal standing of a handwritten signature as it provides more security and a higher level of authentication than a standard electronic signature. The elevated status of the QES is maintained by UK eIDAS. QES will therefore play a significant role in helping organisations manage some of the legal challenges associated with cross-border transactions between UK and EU.
• The UK-EU Trade and Cooperation Agreement 2020 (TCA) includes a guarantee that neither the UK nor the EU may discriminate against electronic signatures and electronic documents solely on the grounds that they are in an electronic form. However, the TCA has adopted a new definition of electronic signature that diverges from the common definition in EU eIDAS and UK eIDAS, and introduces a strict requirement for ‘data integrity’. Adobe confirms that all electronic (and digital) signatures generated on the Adobe Acrobat Sign platform satisfy this requirement.
• Although the TCA excludes certain categories of contract (including real estate contracts, wills and notarial documents), it broadly aligns the future development of UK and EU laws in relation to the type of electronic and digital signatures available on the Adobe Acrobat Sign platform. This is reassuring to UK customers, especially for cross-border transactions with EU parties.
• Overall, the combination of UK eIDAS, the Electronic Communications Act 2000 and case law supports the continued use of electronic signatures to execute domestic transactions (under English law).
• Because EU and UK eIDAS left some discretion to EU member states to prohibit electronic signatures or to require a particular type of electronic signature such as a QES, for cross-border transactions, a UK party must always consider on a case-by-case basis whether an electronic signature will be recognised, and the document be registrable and enforceable, in every jurisdiction relevant to the transaction. See our separate guide to EU/UK Cross-border transactions and eIDAS
• For a more comprehensive overview of the laws governing electronic signatures in the UK, refer to Electronic Signature Laws & Regulations - England & Wales and Electronic Signature Laws & Regulations - Scotland
  
• For a fuller treatment of the impact of Brexit on electronic signature laws in the UK, see the joint paper published with law firm CMS and Adobe. Brexit briefing: What is the impact on electronic signature laws in the UK?

Additional Resources:

• Electronic Signature Laws & Regulations - England & Wales
• Electronic Signature Laws & Regulations - Scotland
• EU/UK Cross-border transactions and eIDAS
• Meeting the HMLR requirements for deeds signed electronically
• Brexit briefing: What is the impact on electronic signature laws in the UK?