Current project status
The current status of this project is: Analysis of responses.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
Making it easier to execute documents electronically. This project is ongoing.
The law relating to signatures and other formal documentary requirements has a history spanning centuries.
In today’s world, individuals, consumers and businesses demand modern, convenient methods for entering into binding transactions. Technological developments have changed the ways in which these transactions are made.
Can the law of England and Wales keep up?
Our common law system is flexible and contracts can be created in many ways. Most transactions are not required to be executed in a particular manner. Electronic signatures are validly used instead of handwritten signatures in transactions every day.
However, the law subjects, particular types of documents to certain procedures, such as signing or witnessing.
We have been told that issues around the electronic execution of documents, including uncertainty around the legal status of electronic signatures, are inhibiting the use of new technology where legislation requires a document to be “signed” or executed as a deed.
This project came out of our 13th Programme of Law Reform and started in January 2018.
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.
This project is linked to our planned project on Smart Contracts, on which the Law Commission has now started work.
In August 2018, we published our consultation paper, setting out our provisional conclusions and potential options for reform.
Following our analysis of the law, our provisional conclusion was that an electronic signature is capable in general of meeting a statutory requirement for a signature. We do not consider that legislative reform is necessary. We asked whether consultees agree.
Additionally, we sought views on whether:
- the government should set up a group of industry experts to monitor the use of electronic signatures and advise on potential changes which could help businesses as new technology emerges
- webcam or video links could be used instead of a physical witness for documents which require witnessed signatures
- there should be a move away from traditional witnessing in person to:
- a signing platform alone, where the signatory and witness are logged onto the same programme from different locations; or
- the ability of a person to “acknowledge” that they applied an electronic signature to a witness after the event
- there should be a further project on whether the concept of deeds is fit for purpose in the 21st century
Our public consultation on this project closed on 23 November 2018.
We are currently analysing the responses we have received and developing our final policy.
Area of law
Commercial and common law