The Electronic Documents (Scotland) Regulations 2014

Made: 25th March 2014

Laid before the Scottish Parliament: 27th March 2014

Coming into force: 11th May 2014

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 1995[^f00001] and all other powers enabling them to do so.

Citation, commencement and interpretation

1

• (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;

• ...

• “advanced electronic signature” means an advanced electronic signature within the meaning given in Article 3(11) of Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market;

• ...

• “digital registration document” means a document created as an electronic communication within the digital registration system;

• “digital certificate” means an electronic document in a standardised format which proves ownership of a “public key”, includes information about its owner’s identity and is digitally signed by the organisation that has verified the certificate’s contents are correct and issued the certificate;

• “digital registration system” means a computer system managed and controlled by the Keeper in accordance with section 99(1) of the Land Registration etc. (Scotland) Act 2012;

• “electronic document” has the meaning given in section 9A of the 1995 Act[^f00003].

• “the Keeper” means the Keeper of the Registers of Scotland;

• “public key” is one of a pair of mathematical keys that are used in the authentication of electronic documents, which is intrinsically linked with the private key (although it is computationally infeasible to determine one key from knowledge of the other key) and is made public and forms part of the digital certificate;

• “private key” is one of a pair of mathematical keys that are used in the authentication of electronic documents, which is intrinsically linked with the public key (although it is computationally infeasible to determine one key from knowledge of the other key) and is kept private to be used, in combination with data from an electronic document, to create a digital signature which is uniquely linked to both the signer of the document and the document itself;

• “qualified electronic signature” means a qualified electronic signature as defined in Article 3(12) of Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market.

• “electronic signature creation data” has the meaning given in Article 3(13) of Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market;

Requirements of formally valid electronic document

2

For an electronic document required by section 1(2) of the 1995 Act[^f00004] 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 document

3

For an electronic document to be presumed authenticated by a granter under section 9C of the 1995 Act[^f00005] the electronic signature incorporated into or logically associated with that document must be a qualified electronic signature.

Annexations to electronic documents

4

• (1) Subject to paragraphs (2) and (3) and except where an enactment expressly otherwise provides, any annexation to an electronic document is to be regarded as incorporated in the document if it is—

• (a) referred to in the document, and

• (b) identified on its face as being the annexation referred to in the document,

without the annexation having to be authenticated.

• (2) Where writing is required under section 1(2) of the 1995 Act for an electronic document, an annexation to it is to be regarded as incorporated in the document if and only if it is—

• (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 an electronic signature under regulation 2 or 3 is incorporated into or logically associated with the document and the annexation.

• (3) Where writing is not required under section 1(2) of the 1995 Act for an electronic document which relates to land and an annexation to it describes or shows all or any part of the land to which the document relates, the annexation is to be regarded as incorporated in the document if and only if it—

• (a) is referred to in the document,

• (b) is identified on its face as being the annexation referred to in the document, and

• (c) meets one of the conditions in paragraph (4)(a) or (b).

• (4) Those conditions are that—

• (a) the annexation is annexed to the document before an advanced electronic signature or a qualified electronic signature is incorporated into or logically associated with the document and the annexation, or

• (b) the annexation is authenticated with an electronic signature which is neither an advanced electronic signature nor a qualified electronic signature, on—

• (i) each page, where it is a plan, drawing, photograph or other representation, or

• (ii) the last page, where it is an inventory, appendix, schedule or other writing.

• (5) In respect of any annexation referred to in paragraph (4)(b)—

• (a) if it bears to have been authenticated by a granter of the document it is presumed to have been authenticated by the person who authenticated the document as that granter,

• (b) it is competent to sign it at any time before the document is founded on in legal proceedings,

• (c) where there is more than one granter, the requirement under paragraph (4)(b)(ii) of signing on the last page is complied with (provided that at least one granter signs at the end of the last page) if any other granter signs on an additional page.

Signed

FERGUS EWING — Authorised to sign by the Scottish Ministers — 25th March 2014

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

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.

Footnotes

[^f00001]: 1995 c.7, amended by the Petroleum Act 1998 (c.17), Schedule 5, Part 1, paragraph 1, the Scotland Act 1998 (c.46), Schedule 8, paragraph 31, S.I. 1999/1820, Schedule 2, Part 1, paragraph 118, the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5), schedule 12, Part 1, paragraph 58, S.I. 2000/2040, Schedule, Part 1, paragraph 17, the Housing (Scotland) Act 2001 (asp 10), schedule 10, paragraph 22, S.S.I. 2001/128, Schedule 4, paragraphs 4 and 5, the Title Conditions (Scotland) Act 2003 (asp 9), schedule 15, paragraph 1, S.S.I. 2006/491, article 3, the Companies Act 2006 (c.46), Schedule 16, paragraph 1, the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), sections 48(1) and 222(2) and (3), S.I. 2008/948, Schedule 1, Part 2, paragraph 199, S.I. 2009/1941, Schedule 1, paragraph 151 and the Land Registration etc. (Scotland) Act 2012 (asp 5) (“the 2012 Act”), sections 96, 97 and 98 and schedule 3. Sections 9B(2)(c), 9C(2) and 9E(1)(d) are inserted by section 97 of the 2012 Act for limited purposes by, and subject to transitional provision for Automated Registration of Title to Land (“ARTL”) documents in article 3(2) of, S.S.I. 2014/41.

[^f00003]: Section 9A is inserted by the 2012 Act, section 97 for limited purposes by, and subject to transitional provision for ARTL documents in article 3(2) of, S.S.I. 2014/41.

[^f00004]: Section 1(2) is amended by the 2012 Act, section 96(2)(a) for limited purposes by, and subject to transitional provision for ARTL documents in article 3(2) of, S.S.I. 2014/41.

[^f00005]: Section 9C is inserted by the 2012 Act, section 97, for limited purposes by, and subject to transitional provision for ARTL documents in article 3(2) of, S.S.I. 2014/41.

Editorial notes

[^key-6d55b145f067013cbee1c7993df2d58d]: Reg. 1 in force at 11.5.2014, see reg. 1(1)

[^key-7d81e7eb9b93137e617125501b705d02]: Reg. 3 in force at 11.5.2014, see reg. 1(1)

[^key-229b3e65804402effe56c8800bb41045]: Reg. 2 in force at 11.5.2014, see reg. 1(1)

[^key-43f4a534f919ad0044f7d820d6633745]: Regs. 5-7 inserted (8.12.2014) by The Land Register of Scotland (Automated Registration) etc. Regulations 2014 (S.S.I. 2014/347), regs. 1(1), 9(3)

[^key-7520b5a473c6caeef8e2a8f22f4dfeee]: Words in reg. 1(2) inserted (8.12.2014) by The Land Register of Scotland (Automated Registration) etc. Regulations 2014 (S.S.I. 2014/347), regs. 1(1), 9(2)(a)

[^key-328e5ec87522f693061f1848a1025f4b]: Words in reg. 1(2) inserted (8.12.2014) by The Land Register of Scotland (Automated Registration) etc. Regulations 2014 (S.S.I. 2014/347), regs. 1(1), 9(2)(b)

[^key-85dc96eeacf9a1900acfff8fbb905023]: Words in reg. 1(2) omitted (22.7.2016) by virtue of The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696), reg. 1, Sch. 3 para. 12(1)(a)

[^key-398346a562d8bc9d5f0be188c491a828]: Words in reg. 1(2) substituted (22.7.2016) by The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696), reg. 1, Sch. 3 para. 12(1)(b)

[^key-f2d9fabe9a4e497d6c1e8cf63af1a7be]: Words in reg. 1(2) substituted (22.7.2016) by The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696), reg. 1, Sch. 3 para. 12(1)(c)

[^key-6be546022b34cc17537ee4f51a890597]: Words in reg. 6(b) substituted (22.7.2016) by The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696), reg. 1, Sch. 3 para. 12(3)(a)

[^key-6453635cba5eac305d53b470ca8e986b]: Words in reg. 6(c) inserted (22.7.2016) by The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696), reg. 1, Sch. 3 para. 12(3)(b)

[^key-d12fc079c547c957755c8625dc1ce85a]: Words in reg. 1(2) omitted (12.3.2018) by virtue of The Registers of Scotland (Digital Registration, etc.) Regulations 2018 (S.S.I. 2018/72), regs. 1(1), 8(2)(a)

[^key-751344c17723bb25356d6e23fcb130b4]: Words in reg. 1(2) substituted (12.3.2018) by The Registers of Scotland (Digital Registration, etc.) Regulations 2018 (S.S.I. 2018/72), regs. 1(1), 8(2)(b)(i)

[^key-2453f04fd7462a62cb94715e41a09540]: Words in reg. 1(2) substituted (12.3.2018) by The Registers of Scotland (Digital Registration, etc.) Regulations 2018 (S.S.I. 2018/72), regs. 1(1), 8(2)(b)(ii)