December 10, 2018

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, the Law Society explains, 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:

1. the use of electronic signatures to execute documents where there is a statutory requirement that a document must be “signed”; and
2. the electronic execution of deeds, including the requirements of witnessing and attestation and delivery.

The Law Society has provided evidence and opinions to the Commission:

• the Law Society agrees 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;
• the Law Society is 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;
• the Commission should revisit the concept of delivery and deeds and the law in these areas should be brought up to date; and
• the use of electronic signatures has the potential to result in time (and therefore cost) savings. However, the Law Society doubts that this translates into a high saving per transaction.