April 23, 2010 / Kevin Ramsay
There have always been laws regulating how documents must be executed before they can be enforceable. Case law has also developed to resolve real life situations which were overlooked by the law makers. In Scotland the Requirements of Writing (Scotland) Act 1995 codified the existing law on execution of documents and introduced some new requirements. However, although it could be argued that 1995 was in the digital age, this legislation unfortunately made no mention of electronic signatures.
The EU Directive 93/1999/EU on a Community Framework for Electronic Signatures introduced regulations governing electronic signatures. In the UK the transposition of this Directive was achieved through the Electronic Communications Act 2000. Section 8 and Section 7 of that Act were used by Registers of Scotland when developing its Automated Registration of Title to Land (ARTL) system. ARTL is a fully electronic system for generating land registration applications including digitally signed digital deeds.
Section 8 of the Electronic Communications Act 2000 enables primary legislation to be changed by way of an Order under that section for the purpose of authorising or facilitating the use of electronic communications. This includes changes where existing legislation requires something to be evidenced on paper. Significantly the 2000 Act does not allow such an “e-option” to supersede the statutory process that is set out in the particular piece of primary legislation. It only permits the introduction of an electronic alternative to a paper-based process. Therefore the 2000 Act could be used to permit electronic deeds to be registered in the Land Register as an alternative to paper deeds, but it cannot make electronic deeds mandatory
It is unusual in UK law for primary legislation to be changed except by other primary legislation. By introducing a power to insert additional requirements into primary legislation by a much quicker and simpler secondary legislation process, the 2000 Act has allowed the speedy introduction of electronic deeds within UK law.
Using the 2000 Act the Scottish Parliament introduced the ARTL (Electronic Communications) (Scotland) Order 2006. This amended the Requirements of Writing (Scotland) Act 1995 to enable electronic deeds authenticated by electronic signatures to be created and submitted within the ARTL system. However it was not sufficient simply to permit the use of an electronic signature as there are many forms and standards of electronic signature. Registers of Scotland required a standard for ARTL that would be robust, secure and offered a guarantee that the person adding the electronic signature is who they say they are. This was achieved by amending the 1995 Act by including details from Section 7 of the 2000 Act which itself replicated the tests of what constitutes an advanced electronic signature specified in the EU Directive. The result is that documents submitted to the Land Register through the ARTL system must have an advanced electronic signature. . Such an electronic signature has self proving effect and does not need to be separately witnessed.
It was also necessary to define some technical details of the digital certificate required to create an acceptable form of digital signature. As technical standards continually change and evolve it was considered unwise to commit these to legislation. Therefore the 2006 Order permits Registers of Scotland to issue “Directions” setting out the technical requirements for acceptable digital signatures. These Directions have legal effect upon publication on the Registers of Scotland’s website.
The introduction of a workable framework for the inclusion of high quality digital signatures into Scottish conveyancing deeds has allowed for the successful introduction of the ARTL system. At the time of writing there are around 200 organisations signed up to use the system. Over 16000 applications for registration of deeds (mostly mortgages) have been submitted through ARTL with a total estimated value in excess of €1 billion.