The final piece of draft secondary legislation that must be passed before the UK can ratify the Unified Patent Court (UPC) Agreement is The Unified Patent Court (Immunities and Privileges) Order 2017, which is subject to the ‘affirmative procedure’ for Statutory Instruments and therefore must be approved by both Houses of Parliament. The Order will also require Privy Council approval. The draft Order (with explanatory memorandum) was laid before the UK Parliament on 26 June 2017 and is currently awaiting examination by the UK Parliament’s Joint Committee on Statutory Instruments (JCSI). The JCSI comprises members of both the House of Commons and the House of Lords, and these have now been appointed (here).
As reported here, last week the Scottish Parliament approved The International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017. The UK and the Scottish Orders together will allow the UK to ratify the Protocol on Privileges and Immunities of the UPC (PPI) and also the UPC Agreement. The PPI, which will give legal personality to the UPC and provide the Court and its judges, Registrar and other staff with various privileges and immunities, has already met the UK’s constitutional requirements for ratification of an international treaty (under the Constitutional Reform and Governance Act 2010), a copy having been laid in the UK Parliament on 20 January 2017. (The UPC Agreement has also met those constitutional requirements for ratification.) However, these Orders are required because the UPC forms a separate jurisdiction to national court systems and the UK will be hosting (in Aldgate Tower, London) both a section of the Court’s central division (dealing with chemistry, life science and pharmaceutical cases) and a local division. The Orders (made under the International Organisations Act 1968) will give the UPC legal personality in the UK and confer privileges and immunities on the Court and its staff as per the PPI; whereas the Order currently passing through the UK Parliament covers the UK, the Scottish Order covers certain devolved matters.
The JCSI will not consider the merits of the draft Order, but will report on any excessive, unusual or unexpected use of the powers under the enabling Act, defective drafting or if further explanation might be required.