Are electronic signatures legally binding in Scotland?

 

Why does Scotland have different rules?

Scotland has its own legal system, and always has. It was never merged with the English one, so contract law, property law and the rules on signing documents all developed separately.

This means a page about UK electronic signature law is usually describing England and Wales. Most of the well-known rules, including the requirement for two witnesses on a will and the way deeds are executed, are English rules that do not apply north of the border. For the position in England and Wales, see Are electronic signatures legally binding in the UK?.

Do most contracts need to be signed?

No. In Scotland most contracts do not have to be in writing. If two parties agree, the agreement can be valid whether it was made in person, by email or on paper. Any electronic signature will do for these.

So for the everyday business of a Scottish company, sales agreements, terms of business, employment contracts, an ordinary electronic signature is fine.

The special rules apply to a short list of documents set out in section 1(2) of the 1995 Act. These are the ones that must be in writing. The main ones are any document creating or transferring an interest in land, a promise made without anything given in return, a declaration of trust where someone makes themselves the sole trustee of their own property, and a will.

What does self-proving mean?

This is the idea that makes Scots law different. Scots law asks two questions. Is the document valid? And can the document prove its own validity without anyone giving evidence?

A document is valid if the person signs it at the end. Lawyers call this subscribing. That makes the document effective, but if someone later disputes the signature, you would have to prove it was genuine.

A document is self-proving, or probative, if it carries its own proof. A court will presume the signature is genuine unless someone shows otherwise. On paper, this is achieved by having one witness watch the signing and then sign as well, adding their full name and address.

Self-proving status is not optional for everything. Documents that go into the Land Register have to be self-proving, so for property transactions it is a requirement.

What level of electronic signature do you need?

For the documents covered by the 1995 Act, an ordinary electronic signature is not enough. An advanced electronic signature is needed for the document to be valid. A qualified electronic signature is needed for it to be self-proving. For what these terms mean, see What is eIDAS? and What is a qualified electronic signature?.

The practical effect is that any Scottish document which has to be registered, and therefore has to be self-proving, needs a qualified electronic signature if it is going to be signed electronically at all.

Can a witness make an electronic document self-proving?

No, and this is the point that most surprises people who know the English rules.

On paper, a witness is exactly how a Scottish document becomes self-proving. One witness watches the signing, signs, and adds their name and address. For an electronic document, that route is not available. Only a qualified electronic signature gives self-proving status.

This is a real difference from England and Wales, where a witness who is physically present can attest an electronic signature, and HM Land Registry accepts property deeds signed that way. See Can an electronic signature be witnessed? for how that works south of the border. It does not work the same way in Scotland.

How does Scotland compare with England and Wales?

What about property transactions?

Documents going into the Land Register of Scotland must be self-proving. Combined with the rule above, that means an electronically signed property document needs a qualified electronic signature.

This is a higher bar than England and Wales, where HM Land Registry accepts deeds signed electronically and witnessed by someone physically present, provided a conveyancer certifies the process. That route does not exist in Scotland.

A practical consequence for firms working on both sides of the border is that the signing process that satisfies HM Land Registry will not satisfy the Keeper of the Registers of Scotland.

What cannot be signed electronically in Scotland?

Wills, testamentary trust dispositions, settlements and codicils cannot be executed electronically in Scotland. As in England and Wales, they need to be on paper.

Beyond that, the restriction is less about categories of document and more about the level of signature required. Most things can be signed electronically if you use the right level.

How do companies sign in Scotland?

In Scotland, a company can be signed for by a director, the company secretary, or any person the board has authorised.

An English company executing a deed generally needs two directors, or a director and the company secretary.

For a document to be self-proving, a company signature needs either a witness, or a second authorised signatory.