Draft Unified Patent Court (Immunities and Privileges) Order 2017

Angela Eagle Excerpts

Wednesday 29th November 2017 General Committees

[Ms Angela Eagle (Wallasey) (Lab)]

It is a pleasure to serve with you in the Chair, Mr Bailey; I do not think I have done so for a while.

Will the Minister say a little bit more about how the arrangements will work in future? Clearly, it is a very important and good thing if we can deal with the fragmentation of patents, particularly across the European single market, but his Government are now determined to leave that market. Although this new institution is not an institution of the European Union, we agreed to come on board and become involved in it while we were in the EU, well before the vote to leave had even been thought of, except on the far fringes of the Conservative party, much less the subsequent referendum.

I am interested in the Minister’s observations on that, because the court will have to put into place the new unified directive on patents, which the European Union is in the process of putting into law and with which we are associated at the moment. However, we probably will not be if we leave the customs union and the single market at some time in future.

We are in quite an unfortunate situation: just as we are attempting to stop the fragmentation of patent law and requirements, particularly their jurisdiction in the European Union, we are fragmenting ourselves from the institution that is meant to co-ordinate that. If the last few weeks are anything to go by, we are not exactly leaving in good odour—or order—judging by the way things are going at the moment. I suspect that that may have some implications for the way in which such a pragmatic and important issue will be dealt with in future. Will the Minister give us the benefit of his observations on that and its implications?

I also note that there are experts who feel that the UK will need to take several steps to remain within the ambit of this institution after Brexit, including entering into new international agreements with the other signatories of the agreement on the unified patent court. Those signatories will all, of course, remain in the single market and the EU.

We are in the middle of trying to set up this institution, which is what the order is about, just as we are leaving the EU. Does the Minister think that we need to come back to this, and change the law and international agreements so that we can proceed smoothly with what we all agree is a desirable outcome? Would that hold up the implementation of what is a wholly good thing?

I also note that there are some issues in Germany that are holding up the final ratification of the court. Does the Minister feel that events in Germany will assist us in getting the timing right regarding our desire to enter into new international agreements, or does he think that they will slow down this wholly welcome development? If we do need new international agreements to move forward in the event of our coming out of the European Union by 2019, is his Department geared up to negotiate them? Has it done any planning on ensuring that our legal arrangements enable us to go on with, and not disrupt, the setting up of this extremely important institution as we leave the European Union?

Finally, can the Minister give us a definite guarantee? His Government do not believe in the jurisdiction of the European Court, but areas of patent law, particularly in the directives, are currently subject to that jurisdiction. Can the Minister explain to us how on earth we are going to be part of this institution, but not subject to the oversight of the European Court? For the life of me, I cannot work out how that would work.

--- Later in debate ---

[Joseph Johnson]

Through the passage of the order and completing all the necessary legislative steps in Parliament, we want to ensure that we are in a position to ratify the UPC and our membership of it, thus enabling it to come into existence. As the hon. Gentleman and Members know, under the terms of the international treaty, UK ratification is required for the UPC to come into existence, and we want the court to come into existence. We have been supporters of it from the outset, and we think it will play an important role in enabling businesses to enforce their intellectual property rights at the lowest possible cost, or certainly at a much lower cost than many companies find to be the case at the moment. We are supportive of it, and we want to continue to play a facilitating role in setting it up.

After we leave the European Union in March 2019, we understand that we will have to negotiate a new relationship with the UPC. We want to do that as seamlessly as possible so that businesses can continue to take advantage of the provisions that the UPC makes possible. Our expectation is that the long-term relationship we will have to establish after March 2019 will be subject to some negotiation. I and the Government as a whole do not want to go into the detail of exactly what that relationship will be at this point.

[Ms Angela Eagle]

We all agree that the court should be set up. Because of the delay in Germany it is unlikely to be up and running much before the middle of next year, if things go well with the constitutional court there. That leaves us less than a year to get the institution up and running before we have to have a major renegotiation of our relationship with it.

In response to one of my initial questions, the Minister said that he is not in a position to give us any particular view on that because he, his Department and the whole Government will be much too busy concentrating on the bigger Brexit things. Is he of the view that the court and, much more importantly, our participation in it can continue without the legal changes we will clearly have to negotiate to remain a member once we are outside the European Union?

[The Chair]

Order. I remind Members that the order is essentially about the privileges of the key figures of the court. While I have allowed the debate to range to other issues around it, it would be helpful if we could focus on the order and if the Minister could relate his reply to the specific issues relevant to the order and the hon. Lady’s comments.

[Joseph Johnson]

Thank you, Mr Bailey, I will try to do that. Returning to the hon. Lady’s question, the order is made under the International Organisations Act 1968. It does not relate to EU legislation, nor does it rely on the European Communities Act 1972. The order will therefore not need to be preserved by the EU (Withdrawal) Bill at exit to remain UK law, so it will continue. As the hon. Lady knows, the UPC agreement is an international treaty, not an EU treaty. It will not need to be converted into UK law by the EU (Withdrawal) Bill for it to continue to apply.

To summarise all the points on Brexit, whatever the UK’s future relationship with the UPC, we will need to negotiate with our European partners to reflect the change to the UK’s status when we leave the EU. We want the court to come into existence. That is why we are facilitating it by putting ourselves in a position where we can ratify it. We understand that there are issues in other countries whose ratification is necessary; we hope that they can be overcome so that this court can come into existence and do the job we all want it to do.

[Ms Angela Eagle]

The privileges issue is clearly important. We cannot have the court without this order, which is why we all support it, but I hope the Minister will reassure me that we can continue to use this court with all its privileges if we are out of the European Union. The House of Commons Library note on this issue includes some worrying or at least alarming views from European law experts who say that we will not be able to remain in the court appropriately after Brexit before we have changed the law—we will not be able to just carry on having the court run. That might mean that people in our country cannot have access to its benefits until the Government ensure that they have entered into new legal agreements with the other signatories. Would he confirm that that is the case and say something about whether the order ensures that we will continue to have access to the court’s benefits, which we all want, without Parliament having to come back—

[The Chair]

Order. That is an incredibly long intervention.

[Ms Angela Eagle]

Well, it is a question.

[The Chair]

The points have been packaged up as questions. We have the drift of it, so will the Minister now respond?