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| Confused about UK legislative process?The IKat is here to help |
Preliminary (clarifying) point
There had been previously a lot of confusion as to the legislative steps required to ratify an international agreement. The process in the UK when ratifying international treaties is essentially three-step:
(i) Give Parliament an opportunity to object to the treaty: Lay the international treaty (be it the UPC Agreement or the Protocol on Privileges & Immunities) before Parliament for 21 sitting days. Both Houses have an opportunity during this time to pass a motion saying that the UK should not sign up to this treaty. Essentially this is a "shout if you disagree" stage. If nothing happens - like it did with the UPC Agreement and PPI, we move on to the next step.
(ii) Incorporate the treaty obligations into national law. The UK's policy has been to implement their international treaty obligations into national law (if they did not they would be bound only by international law). At this stage we have seen last year's Patents Order (which flowed from the UPCA) and now this week's Order on Privileges & Immunities (flowing form the PPI).
(ii) Formal ratification: Once the Order on Privileges & Immunities is passed (see more below), the final stage is that Government uses its powers derived from the Monarch (primarily exercised by the PM and Foreign Sectary) to deposit the final letter/instruments of ratification.Final steps required for UK ratification of the UPC
Step 1 - Pass scrutiny
Having been laid before Parliament, the Order on Privileges & Immunities ("the Order") now needs to go through the scrutiny process. The scrutiny committee responsible for the Order is the Joint Committee on Statutory Instruments (JCSI). The JCSI, made up of peers and MPs, scrutinzes the legislation, essentially checking to see of the powers to create the secondary legislation (the Order) have been used correctly. If they have any questions, they may ask the IPO or Parliamentary lawyers. They will prepare a report for the House of Commons and House of Lords summarizing their review and setting out any remaining questions that should be debated. The AmeriKat understands that JCSI's remit is narrowly defined to more legalistic issues, not policy issues.
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| Where Steps 1 and 2 take place |
Once passed through the JCSI, the Order goes on to be debated in each House - Commons and Lords. The debate is normally held in a special committee that is set up in each House - a delegated legislative committee - with the task of reviewing Statutory Instruments. The composition reflects the parties in the House - which will be a different makeup than in previous years given the lack of majority following the recent elections. The length of the debate can depend on how many wish to speak.
Usually in the debates, a minister will introduce the legislation. The opposition will then have a chance to respond, then other members have an opportunity to speak. The minister then wraps up the position in a closing speech. It then goes to vote. The vote is a simple majority. The Chair of the Committee then declares whether the order stands or falls (unlike primary legislation, statutory instruments stand or fall in tact - there is no possibility for amendments).
The selection of the members for these committees will be done by a committee and is expected to be confirmed approximately 2 weeks before the vote. There may be legalistic questions, as well as some policy debate about the Order and the UPC (generally), in both Houses.Step 3 - Privy Council approval
If the Order is passed in both Houses, it will then go to the Privy Council for approval. The Privy Council is able to approve it as the Queen gives them powers to do so. The Privy Council meets once a month – usually around third week of the month.Step 4 - Ratification
The Order is then "made". The UK can then ratify the UPCA and PPI. This requires a formal letter drawn up by the Foreign Secretary and an instrument of ratification which states that the UK agrees to be bound by the UPC Agreement and the PPI. These documents are then deposited with the depository which is the Secretariat of the EU Council. This process can take a few weeks.Timing
None of the above will be happening until Parliament sits again on 5 September. This is because Step 1 cannot happen until the JCSI is formed. Following the recent election, it has not yet been reformed and will not be until September. If there are no further delays or unexpected hurdles, based on her research it may be that the UK may have ratified the UPC by end of November/early December 2017. This means there could be an early 2018 sunrise period with the Court opening in late spring 2018. Of course, this does not take into account the matter of Germany (see below).
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| IP Minister Jo's brother - Foreign Secretary Boris Johnson |
The Order is UK wide, but there are certain matters covered which touch on devolved matters so have to be dealt with by the Scottish Parliament with a separate order soon to be laid before them. The process is similar to the above - they will go through the scrutiny, debate, Privy Council process but have time limits (minimum 40 days).
Next Steps
Of course none of this means that the UPC will be up and running soon after, of course, as there is the matter of Germany's constitutional challenge. The German ratification delay was today dealt with in this message from Alexander Ramsey (Chair of the UPC Preparatory Committee). He stated that another "layer of complexity has been added" which had "unfortunately...brought a pause to the German ratification of the UPCA and the Protocol on Provisional Application". He continued:
"It is difficult to get a clear understanding of what is the status of the suit and what it is about, since there is not much information publicly available. The complaint has not been notified to the German Government or the Parliament. According to publicly available information an unnamed individual has lodged a complaint against the bill regarding the German ratification of the UPCA and has also submitted a request for preliminary/emergency measures ordering the suspension of the ratification until the Court has decided on the merits of the case. The Court seems to have informed the President of the Republic informally and as seems to be the usual practice in Germany, the President has decided not to proceed with the ratification until the Court has decided on the request for preliminary measures.
Under the current circumstances it is difficult to maintain a definitive starting date for the period of provisional application. However, I am hopeful the situation regarding the constitutional complaint in Germany will be resolved rather quickly and therefore I am hopeful that the period of provisional application can start during the autumn 2017 which would mean that the sunrise period for the opt out procedure would start early 2018 followed by the entry into force of the UPCA and the UPC becoming operational.As ever, the IPKat will keep readers updated as to the progress in the UK and Germany.
A more detailed timetable will be communicated on this website as soon as the picture is clearer."
