One consequence of the blocking is that electronic contracts are the new normal. Agreements are likely to be made some distance away for some time as companies recognize the practical and operational benefits of electronic contracting. However, certain aspects of electronic signatures are regulated in EU law. What will happen to it after the transition period after Brexit?
Regulation 910/2014 on electronic identification, authentication and trust services (eIDAS) sets the framework for the legality of electronic signatures in the EU. In particular, eIDAS defines and regulates the use of qualified electronic signatures (QES) and offers a uniform set of rules across the EU. QES is the highest standard for electronic signatures and offers the highest level of security.
According to eIDAS, QES are only recognized if the electronic signature is an extended electronic signature for which there is a certificate issued by a qualified trust service provider in accordance with eIDAS. The Commission maintains a list of registered fiduciary services in each Member State.
Under Scottish law, certain electronic documents are only valid if they are authenticated with a QES and a document signed with a QES is considered to be self-proving by law.
Many of the qualified trust service providers that offer services in the UK are based in the EU Member States.
Will eIDAS continue to be used in the UK?
In short, yes.
Subject to some changes, eIDAS will become part of UK domestic law under EU law (Withdrawal) 2018. However, UK law will not fully reflect eIDAS – it changes or omits provisions that are no longer required, such as: B. Terminology changes.
Will the UK continue to recognize QES issued by qualified EU-registered trusted service providers?
British law will continue to recognize EU-registered qualified trust service providers, which means that British organizations can continue to use EU-based trust services. The approved trust providers that are listed in the eIDAS trust list immediately before the end of the transition period will be transferred.
After that there will be a body appointed by the Foreign Minister who is responsible for maintaining and publishing the trusted list. The trusted list contains information about qualified trust service providers and the qualified trust services they provide.
What happens to qualified trusted service providers registered in the UK?
Qualified trust service providers registered in the UK who are on the eIDAS list will be transferred to the UK approved list.
The Foreign Minister must provide a body that is responsible for maintaining and publishing the trusted list. The trusted list may contain information about UK-based non-qualified trust service providers, and the list must clearly state that they are not qualified. The ICO will continue to be the UK Trust Service oversight body.
However, the EU will end the recognition of qualified UK trust service providers. This means that electronic signatures issued by these qualified trust service providers are not treated as QES under EU law. This can have consequences for the recognition of these electronic signatures and the validity of documents in EU member states.
What about electronic identification systems under eIDAS?
Provisions on mutual recognition and interoperability of electronic identity systems between EU Member States are repealed. This means that the UK's electronic identification system, Verify.gov.uk, is no longer recognized by EU Member States.
The Department of Digital, Culture, Media and Sports published a call for evidence last year on how the UK government can help improve identity verification, development and secure use of digital identities. The answer was expected in spring 2020, but is still expected.
The practical impact on UK organizations' use of eSignature platforms is likely to be minimal, as companies can continue to use them as normal even when using QES to authenticate documents. This is also the case if a QES is used that has been issued by a qualified trust service provider in another EU member state.
However, there may be problems where a QES issued by a UK trust service provider is used for a document that needs to be recognized by another EU Member State.
After the transition ends, it will be up to the body selected by the Secretary of State to review and approve new qualified trust service providers, and we can certainly see changes in the market as interest grows.
If you would like to discuss the use of electronic signatures or have questions about the electronic signature, please contact Martin Sloan.