Justice Committee

Meeting date: Tuesday, September 26, 2017

Official Report 543KB pdf

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Subordinate Legislation

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International Organisations (Immunities and Privileges) (Scotland) Amendment (No 2) Order 2017 [Draft]

Good morning. Welcome to the Justice Committee’s 28th meeting in 2017. There are no apologies.

Agenda item 1 is consideration of the draft International Organisations (Immunities and Privileges) (Scotland) Amendment (No 2) Order 2017, which is an affirmative instrument. I welcome the Minister for Community Safety and Legal Affairs, Annabelle Ewing; Walter Drummond-Murray from the civil law and legal system division of the Scottish Government; and Greig Walker, who is a solicitor in the Scottish Government’s directorate for legal services.

Members will have a chance to put questions to the minister and her officials about any points on the draft order on which they seek clarification before we formally dispose of the motion on the draft order. I refer members to paper 1, which is a note by the clerk and invite the minister to make a short opening statement.

Thank you, convener. Good morning.

The order will confer various legal immunities and privileges on the unified patent court, which is an international judicial body that is supported by 25 European Union member states, including the United Kingdom.

On 19 February 2013, the UK Government signed the intergovernmental agreement to provide for a unified patent court in the participating European Union countries. The “Protocol on Privileges and Immunities of the Unified Patent Court” was signed in Brussels on 29 June 2016.

The order fulfils Scotland’s part of the obligations that such international agreements entail. Equivalent provision in respect of reserved matters and in respect of devolved matters in the rest of the UK is being conferred by legislation at Westminster. To the extent that the privileges and immunities relate to devolved matters in Scotland, conferral rightly falls to the Scottish Parliament. When their respective parliamentary passages are complete, both orders will go before the Privy Council.

Although the order is limited to the issue of privileges and immunities, it might be helpful to say a little about the background to the UPC. The unified patent court will be common to the contracting member states and thus part of their judicial systems. It will have exclusive competence in respect of European patents and European patents with unitary effect. “Unitary effect” means that the patent will not need to be validated in each of the contracting states; instead, it will provide uniform protection in up to 26 EU countries. The UPC’s rulings will have effect in the territories of the contracting member states after they have ratified the agreement at the given time. The UPC will not have any competence with regard to domestic patents.

The preparatory committee of the UPC, which is a committee of representatives from signatory states that is tasked with bringing the UPC into being, has stated its aim of bringing the agreement into force in the spring of 2018. To meet that deadline, the United Kingdom and Germany must deposit their instruments of ratification in late 2017. The decision to sign up to the international obligations that provide for the UPC falls within the reserved responsibilities of the UK Government and the Parliament at Westminster.

Many stakeholders have welcomed the establishment of the UPC. For example, the Law Society of Scotland said:

“It is strongly recommended that the UK should try to ensure that the UPC Agreement does enter into force, and that the UK can continue to participate fully in the Agreement.”

To enable the UPC to fulfil its purposes and carry out its functions, certain privileges and immunities must apply by virtue of the protocol to which I referred earlier. The conferral of immunities and privileges is, in effect, a condition of membership and is necessary to enable the court to function as an international organisation in the UK.

The specific purpose of the order is to provide immunities and privileges to the UPC and its officials in the course of official activities in Scotland in order to reflect the equivalent Westminster order and the terms of the “Protocol on Privileges and Immunities of the Unified Patent Court”. The order provides that judges, the registrar and the deputy registrar shall have immunity from suit and legal process in respect of things that are done or omitted to be done in the course of the performance of official duties. That immunity can be waived by the presidium of the court. The court officers whom I mentioned shall also be exempt from devolved and local taxes in respect of salaries, wages and emoluments that are paid to them by the court. No individuals are exempt from the council tax. Representatives of a state that is party to the agreement will also enjoy immunity from legal process when, in their official capacity, they attend meetings of committees that have been set up under the agreement. That immunity can also be waived by the presidium of the court.

The immunity does not apply to a British citizen, or to any person who, at the time of taking up functions with the court, is a permanent resident of the United Kingdom.

In the case of motor vehicle incidents, the court has no civil or criminal immunity where the vehicle belongs to, or is operated on behalf of, the court. Immunities and privileges are, therefore, limited, in that they apply only to official actions and can be waived. They do not give an individual carte blanche to commit criminal activity. An assault, for example, could still be prosecuted in the normal way.

The immunity is, therefore, analogous to, but more limited than, that which has been for generations conferred upon diplomats working in foreign jurisdictions. As with diplomatic immunity, all individuals benefiting from privileges and immunities in Scotland are expected to respect Scots law—both the criminal and the civil law.

In conclusion, the order will help the UK to fulfil its international obligations in respect of Scotland, and it is the duty of the Scottish Government to bring it forward to the Parliament.

I hope that that rather long summary was useful, and I invite any questions that members may have.

Thank you for that comprehensive opening statement, which was very helpful.

Thank you for the statement, minister.

You will be aware that I have a keen interest in this matter, as does my party. It seems to be a worthy organisation. Where is the location of its premises in Scotland?

The structure of the court at the moment is that there will be no local division of the court in Scotland. However, I have corresponded with the UK Government and have secured the undertaking that the matter will be reviewed, based on future demand.

In terms of physical presence in the initial year of the operation of the court, there could be a sitting of the local division in Scotland, depending on the needs of any particular case.

If that were to happen, any premises used would be considered to be occasional or temporary premises, to which the inviolability provision does not apply.

That is correct.

Why is that?

I will ask officials to give chapter and verse on the legal reasoning.

With regard to the enabling powers for the orders under the International Organisations Act 1968, neither the Scottish Government nor the UK Government can go any further than the protocol enables them to go. The protocol does not require immunities in relation to temporary premises, so we could not confer them; further, there is no policy reason to confer them in those circumstances. The order has been past the Foreign Office and I understand that the people who are preparing for the UPC are aware of this work, which is all in order.

Paragraph 9 of the covering note says:

“Paragraph 4 provides the Court shall have like inviolability of premises, which means that agents of the state such as the Police cannot enter without permission”.

If premises are termed “occasional” or “temporary”, could the police enter them?

The UPC would not have inviolability in the circumstances that we foresee in the initial years, in which the court would not have a physical presence in Scotland—although we have asked about that and the matter is under advisement. There could be a sitting of the court in Scotland, depending on the needs of a particular case; in those circumstances, the inviolability of premises is not required by the policy direction and it has not been provided for in the order.

It is good to hear that you are chasing work in the area. Would the division be termed local or regional if it were to be sited in Scotland?

If it were to be sited in Scotland in due course—which we will continue to press for and which the Law Society of Scotland supports—I understand that it would be a local division.

Paragraph 12 of the covering note says:

“They shall also be exempt from devolved and local taxes in respect of salaries, wages and emoluments paid to them by the Court.”

Have the figures been quantified in that regard? Do we know the numbers?

I suppose that they would be quite difficult to quantify because the numbers would vary, and we do not know how many officials in Scotland such exemptions could apply to.

The important point—which I hope that I stressed in my opening statement—is that the immunity relates to those who are acting in their official capacity and is concerned primarily with income tax. As I told members at a previous meeting of the committee, the reasons for that relate to the integrity of the operations of the international organisation. In addition, those in senior positions in the UPC will all pay the same rate of tax, as set by the organisation’s rules.

It is not an exemption from council tax, for example, and the exemption for senior officials vis-à-vis income tax will not apply with regard to tax on pensions. It is not an absolute blank cheque. Particular heads of categories are involved and, within that, there is a different approach to income tax or tax and pensions, for example, for more senior officials of the court.

With respect, minister, if we do not know the numbers and we do not know the sum, we do not know the value of the cheque.

As no business regulatory impact assessment will be undertaken, I am not sure how you can reach the conclusion that there will be no financial effects on the Scottish Government, local government or businesses.

The fact is that there is no direct impact at this time. The order extends the conferral of privileges and immunities as far as any potential devolved activity is concerned. We are required to do that in order to secure the UK Government’s ability to implement its international obligations.

As far as we are aware, the UK Government proceeded with a fairly extensive impact assessment process in terms of the underlying principal piece of legislation on joining the UPC. That process carried out the engagement and looked at the impacts. I am asking the committee today to consider the order favourably. The order extends the conferral of privileges and immunities to Scotland as far as devolved matters are concerned.

To clarify, is it the case that most or all of the officials will be domiciled in London?

That remains to be seen.

Certainly, there are different categories. The senior judges will have a particular regime with regard to income tax. General members of staff are the next level down. If they are British citizens or permanently resident in the UK—which they well may be—and are deemed to be members of the UPC staff, they will not be able to benefit from the immunity and privilege regime as far as income tax is concerned. It is a wee bit complicated because different categories of individuals are concerned.

Are you able to provide an aggregate number? You might recall that the last time we discussed this issue, there was some dubiety about numbers. Even if you could write to the committee on that, it would be helpful.

I am happy to ask officials to look into the matter further. I think that it would be very difficult, at this stage, to anticipate exactly the number of people that you are talking about as far as devolved issues in Scotland are concerned, but I am happy to ask officials to look into it.

Are people able to submit patents in Gaelic? If not, could you chase up an obligation that would allow that to happen?

I would be delighted to proceed with that. I am afraid that off the top of my head I do not know the answer.

To pick up on the issue of the inviolability of premises, I take it that the fact that not all premises are inviolable—for example, temporary premises are not—in no way cuts across the provision that the official archives and papers of the court are inviolable. That is, will they remain inviolable even if they are in temporary premises, which are not themselves inviolable?

They will remain inviolable, according to general international principles.

I am wholly supportive of the order, but I will pick up on John Finnie’s question on the impact assessment. Like him, I was struck by what was set out in the policy note at paragraph 16 and, in particular, paragraph 17, which talks about there being no impact at all.

You fairly pointed to the work that was undertaken by the UK Government, where responsibility for much of the matter resides. If we are looking at such instruments in future, it might be helpful if the detail and findings from any impact assessment were fleshed out a little more and shared, even if the assessment was not undertaken directly by the Scottish Government.

Absolutely—I would be happy to do that. It is a very good point.

10:15  

If there are no further questions, we move to agenda item 2, which is formal consideration of the motion in relation to the affirmative instrument.

The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has no comment on it.

If the minister does not wish to make any further comments, I ask her to move motion S5M-07771.

Motion moved,

That the Justice Committee recommends that the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 [draft] be approved.—[Annabelle Ewing.]

The question is, that motion S5M-07771 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Corry, Maurice (West Scotland) (Con)
Fee, Mary (West Scotland) (Lab)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Against

Finnie, John (Highlands and Islands) (Green)

The result of the division is: For 10, Against 1, Abstentions 0.

Motion agreed to.

That concludes consideration of the affirmative instrument. The committee’s report will note and confirm the outcome of the debate. Is the committee content to delegate authority to me, as convener, to clear the final draft of the report?

Members: Yes.

Minister, I thank you and your officials for attending.

10:16 Meeting suspended.  

10:18 On resuming—