Meeting of the Parliament

Meeting date: Wednesday, October 25, 2017

Official Report 929KB pdf

Parliamentary Bureau Motion

The next item of business is consideration of a parliamentary bureau motion. I ask Joe FitzPatrick, on behalf of the Parliamentary Bureau, to move motion S5M-08097, on approval of a Scottish statutory instrument.

Motion moved,

That the Parliament agrees that the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2017 [draft] be approved.—[Joe FitzPatrick]

With regard to this issue, we have been here before with an organisation called the Asian Infrastructure Investment Bank and most recently with an organisation called the European Organisation for Astronomical Research in the Southern Hemisphere. This instrument relates to a body called the unified patent court.

The minister will tell us that this is about the Vienna convention, but I am more interested in the parliamentary convention of Government ministers not requesting that any body, anyone or any premises not be subject to Scots law. We know from the information provided to the Justice Committee that the people in question

“shall also be exempt from devolved and local taxes in respect of salaries, wages and emoluments”—[Official Report, Justice Committee, 26 September 2017; c 3.]

The minister said that we do not know the number of officials in Scotland to whom this exemption could apply, but we have subsequently learned—and I am grateful to the minister for this—that, according to the current forecast, it will apply to six part-time judges who might, on occasion, operate in Scotland.

However, I am interested in the cumulative effect of these various statutory instruments. We have been told, for example, that there will be no financial effect on the Scottish Government or local government. Clearly that is incorrect, and perhaps at some point we will learn the cumulative effect as well as the number of people involved.

What we did learn, which may be a pointer to the future, is that temporary premises of the organisation would not be inviolate. Police officers could enter those premises without a warrant. That is a welcome reduction of one privilege for the organisation. I hope that that is a model for the orders that will inevitably be brought to the Parliament in future.

Finally, on a lighter note, I thank the minister for clarification of another point, which is that the European Patent Office will not accept a patent that is filed in Gaelic. I sense another campaign coming on there.

I ask members to reflect on the message that supporting the proposal would send to our constituents and to vote against it at decision time.

The draft International Organisations (Immunities and Privileges) (Scotland) Amendment (No 2) Order 2017 confers various legal immunities and privileges on the unified patent court, or UPC. The UPC is an international judicial body that is supported by 25 EU member states, including the United Kingdom.

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

The order that is before the Parliament fulfils Scotland’s part of the obligations that entail from those international agreements. 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. 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, I would like 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 system. It will have exclusive competence in respect of European patents and European patents with unitary effect. Unitary effect means that a patent does not need to be validated in each country where the holder wants patent protection; instead, the patent will provide uniform protection in up to 25 EU countries.

The preparatory committee of the UPC has stated its aim of bringing the agreement into force in the spring of 2018. To meet that deadline, the UK 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.

The specific purpose of the order is to provide immunities and privileges on 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 the course of performance of official duties. That immunity can be waived by the presidium of the court. Immunities and privileges are therefore limited in that they apply only to official actions, and they 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.

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.

The question on the motion will be put at decision time.