Last month, the MoJ’s Industry Working Group (IWG) on Electronic Execution of Documents published its final report. This supplements an interim report which appeared in February 2022. The IWG was overseen by Lord Justice Bliss and comprised experts drawn from the legal, business and technology sectors. Their terms of reference included:
- considering the security and reliability of different technologies used to sign documents electronically.
- producing best practice guidance for the use of electronic signatures in commercial transactions.
- considering solutions to the practical and technical obstacles to video witnessing of electronic signatures on deeds.
- making recommendations to government on legal reforms.
In this article I cast a critical eye over the IWG’s main recommendations for reform and tell you what they have got right; and, more importantly, what they have got wrong.
- Permit the use of qualified electronic signatures (QESs) to sign deeds. The formalities for signing a deed under English law are more complex than they are for signing a simple contract. A simple contract is sufficient for most use cases. But we need a deed to execute many significant transactions including transfers of land, mortgages and powers of attorney.
Section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 is the key legislation. It provides that a document is validly signed as a deed by an individual if, and only if, he does so “in the presence of a witness who attests the signature, and it is delivered as a deed.”
When using an e-signing platform such as DocuSign or Adobe Acrobat Sign, the witness must be physically present and observe the signatory sign the deed electronically. The witness then attests the signature by inserting their electronic signature in an attestation clause.
There is no hiding the truth: witnessing and attesting deeds on e-signing platforms is cumbersome. The IWG’s solution is to allow signatories to use the gold standard of cryptographic electronic signatures – QES – and sidestep the current requirement to witness and attest deeds.
This is a sensible recommendation on two counts.
First, I question the value of witnessing. As the Law Commission has opined, “a witness need not be independent, need not read the document, need not know the signatory, need not take steps to identify the signatory, and does not even vouch for the identity of the signatory.”
Second, QES is a more secure and sophisticated type of electronic signature. It requires proper verification of a signatory’s identity by a third-party qualified trust service provider (QTSP) registered in either the UK Trusted List or EU Trusted List. The QTSP issues a “qualified certificate” to the signatory which meets technical and security requirements set out in Annex I of the UK eIDAS Regulations or the EU eIDAS Regulation. This provides reliable proof that the signatory is who he claims to be. I therefore concur with the IWG’s view that our current law should be amended to allow the signing of deeds with QES and dispense with witnessing and attestation.
Nevertheless, whilst I support the IWG’s recommendation, I find flaws in their reasoning. In paragraph 167 of the interim report, they link the use of QES with “a regulated digital identities trust framework, such as that proposed by DCMS (now DSIT).” Now you might think this sounds like a good idea. But identity providers certified against the DSIT trust framework are not able to issue qualified certificates for QES. Only a QTSP which is audited and supervised under the UK eIDAS Regulations or the EU eIDAS Regulation can issue a qualified certificate. And here’s the rub: only one QTSP has qualified status in the UK to provide qualified trust services. Overseas platforms like DocuSign, Adobe Acrobat Sign and Dropbox Sign are totally dependent on integrations with EU QTSPs. The leading UK platform, Yoti, does not even offer QES.
The DSIT trust framework is very welcome, but it has no bearing on QES at present. Instead, certified IDSPs – notably Digidentity and OneID – have integrated with e-signing platforms to provide more rigorous authentication of signatories using electronic signatures.
2. Remote or video witnessing of deeds. The IWG’s preoccupation with QES meant that it skipped over the question of whether to allow video witnessing of electronic signatures. I find this perplexing. The Law Commission Report (which defined the terms of reference for the IWG) clarified that English law requires physical witnessing. But the Law Commission also expressed its view that video witnessing was “sufficiently similar to witnessing in the physical presence of the signatory that it should be permitted.” It went on to say that “We recommend the Government should consider using section 8 of the ECA 2000 to allow for video witnessing, after consideration of the practical, technical issues by the industry working group.”
I defer to no man in my evangelism for QES and I want to see it adopted more widely in the UK. But users of e-signing platforms would have been better served if the IWG had stuck more closely to the brief. DocuSign has an integration with Zoom. Adobe has a promising integration in development with MS Teams. The technology already enables signing ceremonies to be conducted using a video conferencing platform. But this is still dependent on reforming the law to expressly allow video witnessing (and attestation) of deeds.
I had expected this to be the key recommendation from the IWG. I also anticipated some analysis of the mechanics of video witnessing and attestation of deeds, alongside the benefits. These benefits include a simplified workflow and the ability to incorporate the video recording into the platform’s digital audit trail.
Although the IWG recommends the use of QES to sign deeds electronically, it does at least acknowledge that “there is no reason why video witnessing of signatures is something that should not be widely adopted or legally permitted.”
My hope is that the government will invoke section 8 of the Electronic Communications Act 2000 and bring e-signing into the digital age by permitting video witnessing of electronic signatures. This will have a more immediate upside for users of e-signing platforms than any QES reforms.
3. Certification of e-signing platforms. One contentious subject which divided members of the IWG was whether to recommend certification of e-signing platforms by the ICO or National Cyber Security Centre. This was also put out for consultation. In the end, such was the divergence of views among members (and respondents to the consultation) that the IWG felt unable to make any unanimous recommendation.
My personal view is that any form of certification is unwarranted and do more harm than good. An e-signing platform should not be treated differently from other SaaS platforms. A user’s trust in DocuSign is not going to be boosted by a new, UK-specific certification scheme. Trust derives from DocuSign warranting that its signatures are compliant with the trust service framework set out in the EU eIDAS Regulation (and mirrored in the UK eIDAS Regulations), as well as the technical standards which underpin the framework laid down by ETSI, CEN and other standard-setting bodies. Trust also depends on DocuSign adhering to international standards on information security management such as ISO/IEC 27001 and SOC 2 Type 2, and demonstrating how it encrypts users’ data in transit and at rest in its data centres.
Certification is not the answer. It will not solve the real problem: a failure by regulators to clarify how the UK/EU trust services framework for electronic signatures interacts with global technical standards set by ETSI, CEN, ISO, NIST and other bodies.
4. Wholesale adoption by UK government of electronic signatures for all government or official purposes. This is certainly a positive step to engender public confidence and encourage use of electronic signatures in consumer and commercial transactions too.
I also expect the new GOV.UK One Login service to spur adoption of electronic signatures by public authorities.
5. Law Commission to consider the reform of the law relating to deeds. I agree that the Law Commission should review and consider abolishing some of the execution formalities for deeds, and modernise English law. Moreover, as the IWG rightly points out, “in a comparative international context, the need for physical witnessing and attestation makes English law somewhat anomalous.” But we must hope that a government decision on allowing video witnessing on e-signing platforms is not deferred until the Law Commission has undertaken its review of the law relating to deeds. As I explained in section 2 above, leading e-signing platforms have already integrated video-conferencing technology and are waiting for English law to catch up.
In the next article of this two-part series, I will take a look at the IWG’s proposals for addressing the challenge of using electronic signatures in cross-border transactions.
Richard Oliphant specialises in electronic and digital signature law and practice, and in digital identity schemes. He advises private and public sector clients.
