Having spent many hours signing my name on different documents as either party or witness and fielded yet more queries about why we need to courier documents backwards and forwards, how inconvenient it is to gather together in the same room to sign, how anyone will know if he/she signed/didn't sign as well as the unnecessary death of trees, I read the Law Commissions consultation with some interest. The conclusion is that most documents could take legal effect with an electronic signature without any change in the law provided that an authenticating intention can be demonstrated. As the Law Commission's opinion is not the law, a test case is being considered to obtain an authoritative high court ruling.
Changes to the law will be required in certain specific circumstances such as the execution of a Will under the Wills Act 1837. The technology for e-signatures and virtual witnessing of documents certainly exists; however changes suggested in the past have led to debate and ultimately no action so this is one to watch with interest.
"most documents could take legal effect with an electronic signature without any change in the law provided that an authenticating intention can be demonstrated"
Some stakeholders also raised concerns about "digital poverty", particularly in relation to older or vulnerable individuals. These are significant concerns. It is already clear that the elderly and those with special needs or who are particularly vulnerable can be deprived of access to services and information that most people take for granted. They can be exploited and manipulated. So it is disappointing that the Law Commission decided that it is not for the general law of execution of documents to address consumer protection matters, although it noted that where necessary, specific legislation can and does provide additional protections for vulnerable parties.
This consultation paper is "technology neutral" and an "electronic signatures" could cover everything from a scanned manuscript signature that is added to documents to digital signatures and Public Key Infrastructure. What is required is an intention to link an identifiable person to information held in electronic form. The various technological approaches have differing degrees of trustworthiness of the information and the identity of the person signing the information.
Whilst an electronic signature may satisfy a statutory requirement that a document must be "signed", parties will need to consider the evidential weight which may be given to such a signature if there is a dispute about who in fact signed the document, or about the content of the document that was signed.