John Curran (Dublin Mid West, Fianna Fail)
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126. To ask the Tánaiste and Minister for Justice and Equality his plans to amend the Electronic Commerce Act 2000 in order to facilitate the use of a digital signature for deeds of transfer and for sworn affidavits; and if he will make a statement on the matter. [48505/17]

Charles Flanagan (Laois, Fine Gael)
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The position is that section 10(1) of the Electronic Commerce Act 2000 contains the following exclusion from its scope: 

(a) the law governing the creation, execution, amendment, variation or revocation of—

(i) a will, codicil or any other testamentary instrument to which the Succession Act 1965 , applies,

(ii) a trust, or

(iii) an enduring power of attorney,

(b) the law governing the manner in which an interest in real property (including a leasehold interest in such property) may be created, acquired, disposed of or registered, other than contracts (whether or not under seal) for the creation, acquisition or disposal of such interests,

(c) the law governing the making of an affidavit or a statutory or sworn declaration, or requiring or permitting the use of one for any purpose, or

(d) the rules, practices or procedures of a court or tribunal,

except to the extent that regulations under section 3 of the Act may from time to time prescribe.

Subsections (2) and (3) of section 10 provide, however, that the scope of the Act may be extended to excluded areas or subjects by means of regulations made by the Minister concerned where the Minister is of the opinion that: 

(a) technology has advanced to such an extent, and access to it is so widely available, or

(b) adequate procedures and practices have developed in public registration or other services, so as to warrant such action, or

(c) the public interest so requires,

Before doing so, the Minister is required to consult with such Minister or Ministers as in the Minister's opinion has or have a sufficient interest or responsibility in relation to the area or subject concerned.

During Second Stage discussions of the Bill on 23 May 2000, the then Minister for Public Enterprise explained the background as follows:

"Part 2 [of the Bill] provides for equivalence between the electronic and paper world. Section 9 lays down the fundamental principle on which the Bill is founded, that information in electronic form cannot be denied legal effect, validity or enforceability merely on the basis that it is in electronic form. A number of areas of our laws to which it is proposed the Bill will not initially apply are outlined in section 10. Laws governing the registration of immovable property, wills, trusts and enduring powers of attorney are excluded because it is felt the technology and systems are not yet at a stage where they could cope with the execution of such transactions electronically. These areas are excluded only for the time being. Once it is appropriate to extend the legislation to these areas, the Minister of the day has the power to make regulations to extend the application of the legislation to them."

It is clear, therefore, that exclusions from the scope of the Act are not intended to be permanent. However, any extension of the Act to excluded areas or subjects must have regard to the need for safeguards against fraud and impersonation. This applies in particular to situations in which the signature of witnesses is currently required. 

In light of the foregoing, it is clear that any future extension of the scope of the Electronic Commerce Act will necessitate a comprehensive consultation process involving all relevant stakeholders. Responsibility for launching such a process lies, in the first instance, with the relevant Minister and Department, i.e. the Minister and Department of Communications, Climate Act and Environment as the holders of responsibility for the relevant area of the former Minister and Department for Public Enterprise. I can, of course, confirm that my Department is willing to engage in any such consultations. I would also encourage and expect that other important statutory and non-statutory stakeholders, including the Courts Service and the legal and business communities, to contribute to such a consultation process.