Brexit and the Electronic Execution of Documents
On 3rd September 2019, the Law Commission of England and Wales issued a seminal report on the "Electronic Execution of Documents".
This is a subject that animates lawyers because of the vagaries in the current law - although it is a subject that may incline the public at large to tell lawyers "to get a life!".
The report is a comprehensive review of English and Welsh law on the subject and proposes certain options for reform.
The report runs to some 137 pages and 2 of those pages (comprising paragraphs 2.72 to 2.74) contain the heading "UK Exit from the EU".
It may be a matter of regret to some that paragraph 2.74 of the report concludes:-
"At this point , it is not easy to predict whether there will be additional uncertainties or difficulties relating to the enforceability of electronic signatures as a result of the UK leaving the EU".
This statement is made , notwithstanding that "eiDAS" (EU Regulation No.910/2014 on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market) is already incorporated into English law by virtue of the UK's current membership of the EU and would remain so post-Brexit with suitable on-shoring modifications (as a result of the UK European Union (Withdrawal) Act 2018 section 3(1) and a related UK Statutory Instrument , the Electronic Identification and Trust Services for Electronic Transactions (Amendment etc) (EU Exit) regulations 2019 (SI 89/2019)).
The difficulty is that whilst the UK and the EU would be subject to similar legislation on the validity of electronic signatures post-Brexit , there is nothing ( in the absence of an appropriate withdrawal deal or a new treaty) to ensure that these laws would be recognised in the other's jurisdiction.
This is a most unsatisfactory situation, given that it goes to the very heart of the way in which international systems for the recognition of documents and transactions should operate, and it is be hoped that any gaps in the system will be quickly filled.
