There is uncertainty surrounding the legal validity of documents and deeds which have been executed electronically because there is no statutory provision in our law which specifically stipulates that electronic signatures are as valid as handwritten signatures. The aim of the Law Commission’s recent report is to provide an accessible explanation of the law on electronic signatures.
The report states that our current law (through a combination of legislation and case law) already provides for electronic signatures. An electronic signature is capable of satisfying a statutory requirement for a signature. However, issues may arise where documents or deeds have an additional necessity for the signatory’s signature to be witnessed.
The Law Commission’s view is that an electronic signature can be witnessed by a person who is physically present when the signatory affixes their electronic signature to the document. They have further considered whether or not an electronic signature can be witnessed by a person who is not physically present when the document is being signed by the signatory and they have concluded that they cannot be certain that our current law does allow for remote or virtual witnessing.
Their provisional view is that it should be acceptable for the witness to observe the electronic signature being made by the signatory via a video link and then to attest the execution by affixing their own electronic signature to the same document. They have recommended that the Government consider legislative reform to allow for remote witnessing by video link.
Inevitably, there will be practical and technical implications to the use of electronic signatures which will need to be ironed out, for example, security, reliability, identity, fraud and the operation of electronic signature systems and platforms. The Law Commission has therefore recommended that that working industry groups be set up on tackle these issues.
It should be noted that the Law Commission report does not cover the electronic execution of land registration documents which are governed by the Land Registration Act 2002. The Land Registry will deal with it under its own project on electronic conveyancing and registration. Currently, the Land Registry take the view that it is not possible for an electronic signature to be physically witnessed in the way that a pen and ink signature can, so any documents with a requirement for the signatory’s signature to be witnessed will only be accepted by the Land Registry with a “wet ink” signature. Overall, the Law Commission report and its efforts to provide clarity to the legal community will be welcomed by many, however, we have yet to see if the same approach will be assumed when dealing with documents relating to the registration of land.