A draft of the remaining piece of secondary legislation required to enable the UK to ratify the UPC Agreement was published today: The Unified Patent Court (Immunities and Privileges) Order 2017 (with explanatory memorandum) was laid before the UK Parliament. The UK Intellectual Property Office also announced that a separate piece of legislation on privileges and immunities will be laid in the Scottish Parliament in due course. These drafts were expected to be laid shortly after the Easter recess but were delayed due to the UK general election. The Orders in Council (Statutory Instruments) 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 Court 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 in the form of a Command paper (with an explanatory memorandum) having been laid in the UK Parliament on 20 January 2017. (The UPC Agreement has also met those constitutional requirements for ratification.) However, this secondary legislation is 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 Court legal personality in the UK and confer privileges and immunities on the Court and its staff as per the PPI; whereas the Order laid in the UK Parliament today covers the UK, separate legislation needs to be approved in the Scottish Parliament in order to cover Scotland in respect of certain devolved matters.
The Order is subject to the ‘affirmative procedure’ for Statutory Instruments and therefore must be passed by the Parliament, the draft first having been considered by a committee in each of the House of Commons and the House of Lords. The Order will also require Privy Council approval.