2014 No. 83

Electronic Communications

The Electronic Documents (Scotland) Regulations 2014

Made

Laid before the Scottish Parliament

Coming into force

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 9B(2)(c), 9C(2) and 9E(1)(d) of the Requirements of Writing (Scotland) Act 19951 and all other powers enabling them to do so.

Citation, commencement and interpretation1

1

These Regulations may be cited as the Electronic Documents (Scotland) Regulations 2014 and come into force on 11th May 2014.

2

In these Regulations—

  • “the 1995 Act” means the Requirements of Writing (Scotland) Act 1995;

  • “the 2002 Regulations” means the Electronic Signatures Regulations 20022;

  • “advanced electronic signature” means an advanced electronic signature as defined in regulation 2 of the 2002 Regulations; and

  • “electronic document” has the meaning given in section 9A of the 1995 Act3.

Requirements of formally valid electronic document2

For an electronic document required by section 1(2) of the 1995 Act4 to be valid the electronic signature of a granter incorporated into or logically associated with that document must be an advanced electronic signature.

Requirements of self-proving electronic document3

For an electronic document to be presumed authenticated by a granter under section 9C of the 1995 Act5 the electronic signature incorporated into or logically associated with that document must be—

a

an advanced electronic signature; and

b

certified by a qualified certificate as defined in regulation 2 of the 2002 Regulations.

Annexations to electronic documents4

For an annexation to an electronic document to be regarded as incorporated in that document it must be—

a

referred to in the document;

b

identified on its face as being the annexation referred to in the document; and

c

annexed to the document before the electronic signature under regulation 2 is incorporated into or logically associated with the document and the annexation.

FERGUS EWINGAuthorised to sign by the Scottish MinistersSt Andrew’s House,Edinburgh
EXPLANATORY NOTE

(This note is not part of the Regulations)

The Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) amends the Requirements of Writing (Scotland) Act 1995 (“the 1995 Act”) to permit electronic documents to have equivalent status and standards of validity and authenticity to paper documents.

Sections 9B and 9C of the 1995 Act inserted by section 97 of the 2012 Act contain powers to prescribe requirements for electronic documents and electronic signatures, including the type of signature required for such documents to be valid or self-proving.

Those provisions are brought into force by the Land Registration etc. (Scotland) Act 2012 (Commencement No. 2 and Transitional Provisions) Order 2014 (S.S.I. 2014/41) except for the purposes of any will, testamentary trust disposition and settlement or codicil. Transitional provisions in that Order also maintain the current arrangements for electronic documents under the Automated Registration of Title to Land (ARTL) system run by Registers of Scotland before the designated day under section 122 of the 2012 Act.

Regulation 2 of these Regulations provides that the relevant electronic documents - contracts, obligations, trusts and conveyances where formal writing is required under section 1(2) of the 1995 Act (including those altering real rights in land) - must have an advanced electronic signature to be valid.

Regulation 3 provides that an electronic signature applied to those electronic documents in order to make the document self-proving must be certified by a qualified certificate.

Regulation 4 makes provision for annexations to electronic documents.

A Business Regulatory Impact Assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from Registers of Scotland, Meadowbank House, 153 London Road, Edinburgh EH8 7AU.