23 Sep 2013

Electronic Documents

Electronic Documents

Richard Street, Partner, outlines the proposed framework for implementation of electronic signatures under the Electronic Documents (Scotland) Regulations 2013.

Richard Street, Partner, outlines the proposed framework for implementation of electronic signatures under the Electronic Documents (Scotland) Regulations 2013.

Electronic Documents (Scotland) Regulations

As well as paving the way for an overhaul of the Land Registration system in Scotland, The Land Registration etc (Scotland) Act 2012 also provides a framework for the legal status of digital or electronic signatures in Scotland. With the introduction of the Electronic Documents (Scotland) Regulations 2013 it is envisaged that a broad array of legal documents, to which the Requirements of Writing (Scotland) Act 1995 applies, will be able to be legally signed electronically.

Whilst such a change appears at first to be a significant one, the true position is that this is formalising and indeed extending the operation of electronic or digital signatures already in use by Registers of Scotland in the Automated Registration of Title to Land (“ARTL”) system, all as set out in The ARTL (Electronic Communications) (Scotland) Order 2006.

ARTL compatible Standard Securities are currently “signed” electronically by solicitors on behalf of their clients on a regular basis. Such securities, once accepted by Registers of Scotland, are as valid and enforceable as paper documents containing borrowers’ “wet signatures”.

The electronic signature is regulated by an ARTL Mandate, being a formal authority document physically signed by the borrower giving specific authority to the solicitor to sign on their behalf.

The process at present is that Registers of Scotland will only process a transaction by ARTL if the physical mandate is presented to them for Registration. Registers of Scotland maintain a register of ARTL Mandates. Each solicitor seeking to electronically sign documents within ARTL will possess a Smart Card, which contains the Digital Signature Data (conform to the specific PKI Digital Signature Policy) - these are closely monitored and have dual layer authentication by way of two distinct passwords.

Moving forward, it is envisaged that such a system of physical Mandates and PKI Smart Cards will continue to be sufficient evidence of the validity of an electronic signature ensuring that all electronically signed documents hold the same legal status and validity as those signed directly by borrowers.


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