Letter from Mr Bob Ainsworth MP, Parliamentary
Under Secretary of State, Home Office, to Lord Grenfell, Chairman
of the European Union Committee
Thank you for your letter of 24 March. As requested,
I am writing to provide you with a copy of the draft EU-US Agreements
on mutual legal assistance and extradition. I ask that you treat
this document in confidence given its EU confidential classification.
I am aware that at least one Member State has
already provided this text to its Parliament which has made public
its assessment of the proposal. However, whilst the document retains
its EU confidential status, I take the view that it should not
be subject to the usual public scrutiny arrangements in the UK
and would ask therefore that the Committee respect the classification
in line with agreed arrangements for the handling of sensitive
information. I will deposit the unclassified draft Council Decision
authorising the Presidency to sign the Agreements in due course.
I am advised that it should be available over the Easter period.
It will not however be accompanied by the text of the Agreements.
You may recall that in previous negotiations
for EU third country agreements we have not received an unclassified
version of the text until it has been signed, signature marking
the closure of negotiations with the third country and the start
of internal EU procedures for completion. My officials have nonetheless
emphasised to the Council Secretariat the importance of receiving
an early unclassified version of the text. They have advised that
this may not be possible until after signature, but they will
examine the possibility of preparing a document following discussions
on the Agreements at the May JHA Council. I will keep you informed
on this matter.
The JHA Council on 27-28 February agreed that
negotiations on these Agreements should be suspended in order
to allow Member States to consult national Parliaments on the
text or carry out any constitutional requirements prior to the
adoption of the Council Decision authorising the Presidency to
sign the Agreements. The Presidency may seek such authorisation
at the JHA Council on 8 May, although this could be pushed back
to the JHA Council on 5-6 June given that signature is, at present,
provisionally planned for an EU-US summit on 25 June.
If it would assist the Committee in its consideration
of these proposals, I or my officials would be happy to appear
before the Committee in the coming weeks to provide further explanation
of the substance of the draft Agreements and answer your queries.
Given the confidential nature of the text, this could not however
take place in a public meeting.
Anticipating that proposals of this nature are
usually sifted to Sub-Committee E of the European Union Committee,
I would also ask that it be considered by that Sub-Committee on
2 April given that I understand they will probably not meet again
until 7 May. As I have indicated, the Agreements will be discussed
again at the JHA Council on 8 May and it would be useful to have
the Committee's initial reactions to the text in advance of that
meeting. I appreciate however that the Committee will require
more time in which to undertake a thorough examination of the
The Agreements were proposed as part of the
counter-terrorism package agreed at the extraordinary JHA Council
in September 2001, following the events of 11 September. They
are designed to improve judicial co-operation between the Member
States of the European Union and the United States of America,
including in relation to terrorism and associated offences. The
Agreements supplement existing bi-lateral treaties between individual
Member States and the US, or where no such treaties exist, create
a framework for judicial co-operation. They are based on Articles
24 and 38 of the Treaty establishing the European Union.
The Agreements seek to extend to the US some
judicial co-operation arrangements which have been agreed between
the Member States. In particular, the provisions of the EU Mutual
Legal Assistance Convention 2000, and its Protocol, along with
some extradition provisions deriving from the European Convention
on Extradition, Schengen Convention and the Framework Decision
establishing the European Arrest Warrant. However, none of the
"mutual recognition" provisions, for example the partial
abolition of dual criminality or the recognition of judicial decisions,
in the latter Framework Decision are to be applied to the US.
The United Kingdom has, particularly in comparison
with other EU Member States, effective judicial co-operation mechanisms
with the US. These are based on the MLA Treaty of 1994, as amended,
and the Extradition Treaty of 1972, as amended. The Government
has announced that it is negotiating a revision to the Extradition
The Government's policy in relation to these
Agreements was that they should add value to existing bi-lateral
treaties, for other Member States, even if not for the UK, and
that they should neither inhibit existing bi-lateral co-operation,
nor the conclusion of future bi-lateral Treaties with the US.
The Government is satisfied that the provisions of the draft EU/US
Agreements meet these objectives. Articles 3 (both agreements),
17 (Extradition) or 14 (MLA) and 18 (Extradition) or 17 (MLA)
enable full clarification of the relationship between existing
bi-lateral arrangements and the EU/US agreement. For example,
the provisions of Article 4, especially subsection (2), of the
Extradition Agreement would not apply to the UK because the UK-US
bilateral treaty will apply a sentence threshold, not a list of
offences, to extraditable offences. In addition, the exchange
of designations and notifications will allow further clarification
of the relationship between these Agreements and UK/US bilateral
Similarly the Government wished to ensure that
the Article 38 Agreement, the first with legislative consequences,
did not give rise to excessive interference in UK/US relations.
We are satisfied that neither ECJ jurisdiction, nor infraction
proceedings would apply. The method by which the EU would ensure
UK compliance with the agreement, following the specified consultation
procedures, would be through pressure at JHA Council.
The Government had hoped that more of the key
concerns of the USA could have been covered by these Agreements.
The Agreements do not require the extradition of own nationals,
the abolition of the political offence exception for terrorist
offences or the effective enforcement of US determinate sentences
for nationals returned to other EU Member States. Similarly, discussions
on the application of provisions equivalent to the Council of
Europe Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds of Crime (1990) have been delayed to a possible
In response, the US has negotiated hard to ensure
that there remain some elements of added value. The Presidency
is of the view that further negotiation would be unlikely to produce
any more changes to the text, and might endanger the whole agreement.
In particular the USA was anxious to retain Article 10(2) of the
Extradition Agreement and to avoid specific references to the
International Criminal Court or the Special Courts (Military Tribunals)
which could be used to try some terrorism cases. The Government
is satisfied that the text of the Agreement would not inhibit
the UK from giving ICC requests priority, or from refusing extradition
to face a Military Tribunal which did not meet the fair trial
requirements of the ECHR or Human Rights Act.
Whilst there are elements of the text which
are not ideally drafted from a UK perspective, the Government
agrees with the Presidency's assessment that further negotiations
with the US are unlikely to be productive. The text reflects the
differing concerns of the 15 Member States and the USA. However,
the Government is satisfied that explanatory notes are sufficient
for it to determine the extent of its obligations under the Agreement.
In particular, that Article 8 of the MLA Agreement does not impose
an obligation to provide information to administrative bodies
which have no criminal investigation function, because that would
go beyond the competence of an Article 38 Agreement. It is therefore
consistent with both the UK/US bilateral (Article 7 refers to
administrative hearings), and Section 4 of the Criminal Justice
(International Co-operation) Act of 1990.
The Extradition Agreement provides for some
administrative procedures to be changed, which will speed up the
process of delivering extradition requests. The UK/US Treaty already
provides for most other provisions. The current Extradition Bill
provides for others and, as I have already indicated, the UK and
US are in the process of revising its bi-lateral extradition Treaty.
Thus the Extradition Agreement has little added value for the
UK, but has more impact on extradition between some other Member
States and the US.
Article 4 of the MLA Agreement, in effect, extends
the provisions of the Protocol to the EU Mutual Legal Assistance
Convention of 2000, to the USA. Subsection (4)(b) is required
for those Member States which either have no bilateral MLA Treaty,
or where those treaties do not already provide for account identification
assistance, or where the Member State has not criminalised the
laundering of the proceeds of the offender's own crime, including
terrorist financing. The UK already provides assistance on banking
account identification for a wide range of offences.
The joint investigation team provisions at Article
5 of the MLA Agreement will require legislation in the UK to extend
existing provisions and those in the Crime (International Co-operation)
Bill to the USA. The Government is currently considering whether
the best means of delivering this provision would be by means
of primary or secondary legislation under Section 88 of the Police
Act, 1996 (as amended by Sec. 103 of Police Reform Act, 2002).
Secondary legislation might be possible either by virtue of this
Agreement, or as the result of a separate bi-lateral Treaty (supplementary
to the UK/US MLA Treaty). The provisions in clauses 16 and 18
can be brought into effect in relation to the USA only if we designate
under section 88 of the Police Act 1996. Officials have commenced
discussions with their opposite numbers in the USA in order to
explore this possibility.
Article 9 of the draft MLA Agreement has sufficient
flexibility as to enable the UK to indicate that evidence provided
may only be used in relation to the case for which it was provided.
The provisions of Article 14 of the draft Extradition
Agreement are already common practice in UK/US extradition cases,
where either side has concerns about the public disclosure of
sensitive information (for example relating to sources of intelligence
or identifying potentially vulnerable witnesses).
The provisions in Article 9 of the draft Extradition
Agreement on temporary surrender reflect those for EU countries
in the Extradition Bill currently before Parliament. The Government
is currently considering whether primary legislation will be needed
to enable UK authorities to request the temporary surrender of
fugitives in custody in the USA, in the light of the requirement
to keep that fugitive in custody once transferred to the United
Kingdom. This would not prevent the UK from meeting its obligations
under the Agreement, though pending any necessary legislation,
it is unlikely that the UK would be able to make the successful
request, the temporary surrender of a fugitive from the US.
Other provisions in that draft Agreement are
either contained in the Extradition Bill, or require administrative
changes in relation to, for example Articles 5 and 6.
The provisions of most Articles, except Article
5, of the Mutual Legal Assistance (MLA) Agreement are either already
in place or reflect those in the Crime (International Co-operation)
Bill. Article 4 provisions would be provided by a combination
of measures. The Crime (IC) Bill's provision for secondary legislation,
at Section 52(2), would enable the US to be designated. The planned
secondary legislation under Part 11 of the Proceeds of Crime Act
2002 will generally enhance international co-operation, including
with the US, against money laundering. The provisions of Part
1-3 of the Anti-Terrorism Security and Crime Act 2001 deals with
Unlike normal conventions, there is not a ratification
procedure before the conclusion of the Agreement. Member States
will be expected to put in place any necessary legislation after
the Presidency's signature and before conclusion under Articles
24/38 TEU. It would be possible for the Council to conclude the
agreement, at a future date, without all Member States having
completed their constitutional procedures. But those Member States
would have to declare that they would, in the interim, not be
bound by the Agreement. The Agreement, in those circumstances,
would be provisionally applied to those Member States that had
legislated, pending legislation in those Member States which had
made a declaration. We anticipate the majority of Member States,
including the UK, will declare when authorising signature of the
Agreements, that the Agreements will not be binding on them until
they have complied with their internal constitutional procedures.
Such a declaration is permitted under Article 24 TEU.
Following signature of the agreement, the Government
would seek to introduce the necessary legislation, which would
enable it to agree to the conclusion of the agreement by means
of a future Council Decision. We understand that a number of Member
States are considering the legislative process that would be required
to bring the Agreement into force. At present, the indications
are that the Presidency hopes that this process could be completed
before the end of 2003.
27 March 2003