Before the UK is able to ratify the Unified Patents Court Agreement, statutory instruments establishing the Unified Patents Court as a corporate entity in the UK and granting it certain privileges and immunities (such as inviolability of its records and premises) must be approved both by the Westminster and Scottish parliaments. With the passing of the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 (the “Scottish SI”) by the Scottish Parliament yesterday, the UK has reached the first of these two key remaining milestones on the road towards ratification of the Unified Patents Court Agreement.

All that now remains before the UK may proceed to ratify is for the Westminster parliament to pass an equivalent instrument. The procedural steps required to effect this are set out below, along with an update as to the current status.

Westminster Statutory Instrument

The draft Unified Patents Court (Immunities and Privileges) Order 2017 (the “Westminster SI”) was laid before the House of Commons on 26 June 2017, and has been included as future business on each and every Order Paper published since parliament returned from its recess at the beginning of September.

The Westminster SI is following the “affirmative resolution procedure”, which means that it must be approved by votes of both chambers of the Westminster parliament: the House of Commons and the House of Lords. Before it may be voted upon, however, it must pass through three committees:

Approval by the Joint Committee on Statutory Instruments

The Joint Committee on Statutory Instruments (the “JCSI”) is a cross-party committee composed of members of both the House of Commons and House of Lords, which scrutinises statutory instruments proposed by ministers. The JCSI does not consider the merits of a draft instrument, but is responsible instead only for ensuring that a Minister’s powers are being carried out in accordance with the provisions of the enabling Act (in this case, the Foreign Secretary’s powers delegated by the International Organisations Act 1968). The JCSI was dissolved prior to the general election in June, and has not yet been re-appointed.

Consideration by the Secondary Legislation Scrutiny Committee (House of Lords)

This is a cross-party House of Lords committee which considers the merits of every draft instrument brought before the House. The committee’s role is to review each draft instrument and determine whether or not the special attention of the House should be drawn to it in advance of the debate. The grounds upon which an instrument may be drawn to the House’s attention are as follows:

  • That it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House;
  • That it may be inappropriate in view of changed circumstances since the enactment of the parent Act;
  • That the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation; and
  • That there appear to be inadequacies in the consultation process which relates to the instrument.

The Westminster SI has already been considered by the SLSC, which decided not to draw special attention to it. This step has therefore been completed.

Debate by a Delegated Legislation Committee (House of Commons)

A Delegated Legislation Committee (a “DLC”) will be specially appointed for a particular statutory instrument or a series of related instruments, and will stand as a proxy for debate in the House of Commons. DLCs are commonly composed of seventeen Members of Parliament, but there can be as many as fifty. Any Member of Parliament may attend and speak at the meeting, but only the members of the DLC are entitled to vote. If they approve the instrument, it goes to a full vote of the House of Commons without further debate. No DLC has yet been appointed for the Westminster SI.

What remains to be done?

The steps required for the passing of the Westminster SI are set out in the below flow chart:

Click here to view enlarged image

The passing of the Scottish SI is significant, and represents a crucial step forward in the progress towards ratification. The Scottish and Westminster SIs were laid before their respective parliaments at similar times, but whilst the former has sailed through in quick time, the latter is lagging behind. Whilst progress in Westminster is frustratingly slow and incremental, proponents of the Unitary Patent can take solace from the fact that contrary to popular belief progress is in fact being made. The reasons for the delay are entirely procedural, endemic perhaps of a Westminster parliament with greater matters of state on its mind than mundane consideration of delegated legislation, rather than of any specific or targeted objection to the UPC. Successive government ministers have affirmed and re-affirmed the UK’s commitment to the Unitary Patent and its intention to ratify the Unified Patents Court Agreement and we have no reason to believe that this has changed, but it is fair to say that this commitment has failed to manifest itself as any meaningful spur to the progress of the Westminster SI. UPC observers must patiently stand by, as they have become accustomed to doing, watching as the machinery of government rumbles slowly onwards.

With all of the above having been said, it remains to be seen whether the UPC Agreement will in fact be signed once these steps are completed or whether it will instead become a bargaining chip in the ongoing Brexit negotiations. On that question, only time will tell.