Law Commission consultation on electronic execution of documents - Law Society response
As part of their 13th Programme of Law Reform, the Law Commission launched a project looking at how to make it easier to execute documents electronically.
The purpose of the project is to address any uncertainty as to the formalities around the electronic execution of documents and to ensure that the law governing these formalities is sufficiently certain and flexible to remain competitive in a post-Brexit environment.
The project focuses on two aspects of the electronic execution of documents:
- the use of electronic signatures to execute documents where there is a statutory requirement that a document must be 'signed', and
- the electronic execution of deeds, including the requirements of witnessing and attestation and delivery.
We have provided evidence and opinions to the Commission on the matter. Our main recommendations are:
- We agree with the Law Commission's views about the validity of electronic execution.
- To the extent others have doubts about the validity of electronic execution, the best way to remove those would be through legislation. The law should be enabling but not prescriptive.
- The proposed industry working group would be the best place to provide electronic execution solutions that are feasible in light of current and future technology.
- We are sceptical that the practice of witnessing an electronic signature via video link will become widespread as the current practice of 'in person' witnessing is not considered to be onerous.
- It is for specific legislation, regulation or regulators to formulate provisions for industry/area documents (for example, to protect vulnerable parties, particularly for lasting powers of attorney).
- The Commission should revisit the concept of delivery and deeds and the law in these areas should be brought up-to-date.
- The use of electronic signatures has the potential to result in time (and therefore cost) savings. We doubt that this translates into a high saving per transaction.