Electronic & Digital Signatures in the United Kingdom

Legislation

The United Kingdom (UK) has enacted two sets of legislation relating to electronic signatures. These are the Electronic Identification and Trust Services for Electronic Transactions Regulations (2016) and the Electronic Communications Act (ECA) of 2000. 

The UK has also adopted the verbiage of the European Union’s (EU) eIDAS Regulation into local law with small changes that reflect the country’s position external to the EU. This is known as the UK eIDAS Regulation. 

English local law follows a liberal approach in defining electronic signatures and does so broadly, stating that ‘an electronic signature is so much of anything in electronic form as is incorporated into or otherwise logically associated with any electronic communication or electronic data and purports to be used by the individual creating it to sign.’

Electronic Signing of Documents in General

The UK eIDAS Regulation makes provision for for the following three types of electronic signatures:

Simple Electronic Signatures

This type of signature is defined as data in electronic form that is either attached to or logically associated with other data in electronic format and used by the signee to sign.

Advanced Electronic Signatures

This type of signature carries the following attributes:

• it is uniquely linked to the signee 

• it can identify this signee 

• it is created by way of e-signature creation data that the signee may use with confidence and under their sole control 

• it is linked to the signed data in such a manner that any amendments to the data after the fact are detectable
  

Qualified Electronic signatures

This type of signature is created by way of a qualified electronic signature creation device, which is based on a qualified certificate for electronic signatures.

Due to the fact that the UK eIDAS Regulation outlines minimal (not maximal) standards for electronic signatures, pre-existing local laws are affected by this regulation in a very limited way, especially since a broad definition of e-signatures had already been adopted in the UK’s ECA. 

Considerations Regarding Electronic & Digital Signatures in the UK

The Law Commission in the UK concluded that with the UK eIDAS Regulation, the ECA of 2000, and case law in combination, an e-signature is capable of meeting a statutory requirement in the case that authentication intention is able to be demonstrated. This view is not limited to a certain type of electronic signature.

Electronic signatures in the UK are also not limited to commercial and consumer documentation, but may also be used to execute both documents and deeds on the proviso that the signee intends to authenticate it and that all formalities of execution are indeed satisfied. 

In transactions with public sector bodies, the use of e-signatures is not mandatory and the public sector body in question can decide whether or not it wants to make use of them. That said, public sector registries are working to modernize their practice and several of these now accept electronically signed documents. 

In regards to witnessing and attesting deeds (for transactions like land transactions, mortgages, powers of attorney, and agreements made without consideration), these may be executed validly with the use of an electronic signature by both individuals and by companies. That said, in the case that a deed should be witnessed, that witness must be physically present alongside the signee when the deed is signed and the witness must also attest to the actual signature. 

When it comes to deeds registered with the HM Land Registry (HMLR), the HMLR accepts electronic signatures on transfers and other deeds that can be registered on the condition that these satisfy the prescriptive practice requirements. In this case, a conveyancer is to establish and control the entire signing process on the Adobe Sign platform, where the conveyancer must provide a certificate to the HMLR to certify that the signing process is compliant with the HMLR practice requirements. 

Documents considered valid with simple electronic signatures (SES) in the UK 

In the UK, electronic signatures may generally be used for the following types of transactions or documents: 

• human resources

• corporate resolutions 

• NDAs

• consumer transactions

• education

• life sciences

• high tech

• insurance

• software licensing

• healthcare

• chattel paper

• procurement 

• documents that need to be recorded or notarized

Documents considered valid with qualified electronic signatures (QES) in the UK

In the UK, even though qualified electronic signatures carry the same status as wet signatures, there are no documents that necessitate the use of qualified electronic signatures. While the use of electronic signatures for the document and transaction examples below are not prohibited, there may be additional considerations or specific requirements attached to each for them to be executed and used successfully. 

• real estate, in the case that the relevant documentation concerns the sale of land or need to be registered with the Land Registry 

• banking, to the extent that the documentation in question relates to real estate transactions

• lending, to the extent that the borrower’s obligations are secured on real estate

• government filings (depending on the government filing in question)

In the case of documents that are signed electronically and the authenticity of the document is challenged, the English courts accept such documents as authentic as prima facie evidence. The burden of proof of inauthenticity in this case is on the individual challenging the given document’s authenticity.  

Documents that should only be signed with a wet signature in the UK 

There are some documents and transactions where it is not appropriate to sign electronically. These are as follows: 

• wills under the Wills Act 1837

• negotiable instruments (like bills of exchange, promissory notes, and chattel mortgages), which must be in physical form

• lasting powers of attorney registered with the Office of the Public Guardian

• documents that require notarization or legalization

• HM Revenue & Customs (HMRC) usually stamps a wet-ink version of a document on which stamp duty should be paid, like a stock transfer form, for example. This has been temporarily suspended due to the COVID-19 pandemic and electronic signatures are accepted while these measures are set in place

  
  

Helpful Resources 

• OneSpan: Are Electronic Signatures Legal in the UK?

This page is intended to communicate general information and does not constitute legal advice. While we have made every effort to ensure that this information is both accurate and up to date, it may not necessarily represent the most recent version of the legal topics in question. No action should be taken based on the information provided herewith and Smallpdf and its employees disclaim all liability relating to any actions that are or are not taken in reliance upon this information to the fullest extent permitted by law. In the case of any questions or uncertainty regarding the legality of electronic and/or digital signatures in your country or area, please consult your local laws or a legal professional for advice.