RoS hosted the Future of Conveyancing conference on behalf of the Scottish conveyancing industry in June 2021. This is the second in a series of blogs to continue the discussion that was started at that event. During the conference we asked for your feedback on the practical changes you’d like to see and what challenges may stand in our way. Electronic signatures were highlighted as a topic of interest.

In my recent blog on RoS’s approach to Qualified Electronic Signatures (QES), I set out how RoS envisages introducing digital registration services in the future, and how QES is central to this. However, following some feedback on this article, I thought it may be useful to provide some additional background on what a QES is and how they can be used in relation to registration.

Electronic Signatures in General

An electronic signature is, very simply, a collection of data which, when attached to or associated with an electronic document, is equal in legal status to a wet signature on a traditional (paper) document. The benefits of electronic signatures are numerous, providing increased speed and security to transactions.

A number of different forms of electronic signature exist, the use of which is dependent on the type of document to be signed and specifically, what provision the law makes in respect of how that document can be signed. There are three main types of electronic signature, which are (in increasing order of security):

• Simple electronic signatures – such as typing your name, pasting an image of a wet signature into a document, or ticking a check-box to indicate acceptance of terms and conditions.
• Advanced electronic signatures – a more secure electronic signature which is uniquely linked to the signatory, is capable of identifying the signatory, is created using means that the signatory can maintain under their sole control, and is linked to the data to which it relates in such a manner that any subsequent change to the data is detectable.
• Qualified electronic signatures – the highest standard of electronic signature which is similar to an advanced electronic signature, but with the added requirement that the signatory’s identity must be verified by a qualified trust service provider before the signatory is issued with a QES.

The Position in Scotland

In Scotland, QES is the only type of electronic signature that can enable an electronic document to achieve self-proving status which is, of course, a requirement for deeds to be registered in the Land Register.

Until recently, the only readily available QES has been the Law Society Smartcard, which all Scottish solicitors will be in possession of. However, as the technology has matured, and with the impetus provided by the Covid pandemic, the QES market in Scotland has grown significantly, and there are now a number of commercially viable solutions (such as Adobe and DocuSign) available to firms. In contrast to the Law Society offering, this market offers cloud based signing solutions without the need for physical tokens or cards.

Registration of QES Deeds

It should be noted that the Digital Submission Service (introduced at the start of lockdown) does not permit the submission of electronic documents – only electronic copies of traditional documents are capable of being lodged in this way. As a result, deeds signed by QES cannot currently be submitted for registration in this way.

At present, the law in Scotland only permits the registration of QES deeds where the deed is generated, signed and transmitted within a RoS-controlled system, with the Digital Discharge Service being the only live example of such a service in operation.

However, as indicated in my previous blog, RoS intends to introduce a pilot digital registration service towards the end of this financial year which will enable the wider registration of QES deeds, and it is envisaged that this service will ultimately grow to become the default method of registration in the coming years.

Next Steps

The recent Future of Conveyancing conference made it very clear to me that there is significant interest in QES (and the digital registration services that will stem from this) within the conveyancing profession, with some firms already widely using QES for non-registrable documents. It is also clear to me that there are a number of differing views on how RoS and the profession should move ahead together in this space.

With this in mind, RoS will be hosting an initial meeting with the profession to discuss the topic and agree potential next steps.