Explanatory Memorandum submitted by the
Home Office on draft Agreements on Judicial Cooperation with the
USA (8296/03 CATS 21 USA 30)
This Explanatory Memorandum (EM) covers a note
regarding the procedure and timetable for adoption of a Council
Decision to sign draft Agreements between the EU and US on mutual
legal assistance and extradition. A draft of the Council Decision
is annexed to the document.
This is the first document to be deposited on
this proposal. However, Bob Ainsworth has written to the Committee
Chairmen on three occasions regarding the negotiations between
the EU and US for judicial cooperation Agreements: on 29 May 2002,
30 January 2003 and 27 March 2003.
The Home Secretary has responsibility for policy
matters relating to the criminal law (except in Scotland) and
takes the lead on judicial co-operation with other EU Member States
within the framework of Title VI of the Treaty on European Union.
Scottish Executive Ministers also have an interest.
(i) Legal Basis
The Council Decision authorising the Presidency
to sign the draft Agreements is based on Articles 24 and 38 TEU.
No issues of subsidiarity arise here. The measure
is one which can only be taken at EU level. The Agreements to
which it refers will supplement existing Treaties between individual
Member States and the US. They do not preclude the negotiation
of more favourable UK/US bi-lateral arrangements.
Due to the confidential nature of negotiations
for EU third country agreements, the Government has not consulted
with outside interests on the draft Agreements. The Council Decision
authorising signature is not a measure on which the Government
would consult with outside interests.
8296/03 sets out the process for concluding
negotiations between the EU and US on negotiations for Agreements
on mutual legal assistance and extradition. Annexed to the document
is the draft Council Decision to sign the Agreements, which will
have to be adopted as part of that process.
As the note explains, in order to bring the
Agreements into force, the Council must take two decisions:
the first will authorise the Presidency
to sign on behalf of the EU the Agreements as negotiated between
the EU and US over the last year;
the second will conclude the Agreements
under Article 24 TEU.
As already explained, Member States may declare
when authorising signature that the Agreements will not be binding
upon them until they have complied with their own constitutional
procedures. The Government intends to make such a declaration
in order to safeguard Parliament's right to scrutinise the draft
Agreements. It is also likely that the Agreements will require
legislation in the UK before they can be implemented.
I am writing separately regarding the draft
Agreements themselves given that, as document 8296/03 indicates,
they remain subject to an EU confidential marking. As the document
explains, should the JHA Council on 8 May reach a general approach
on the Council Decision authorising signature, the Presidency
will put in motion the necessary steps to have the Agreements
de-classified. This will require a decision by EU Ambassadors
(COREPER) and the agreement of the US.
No financial implications arise as a result
of the Council Decision to sign the Agreements.
The note sets out the timetable for the conclusion
of the negotiations between the EU and US. The Council Decision
to sign the Agreements will be put to the JHA Council on 8 May
for a general approach and then prepared for adoption at the JHA
Council on 5-6 June. The Council Decision to conclude the Agreements
will then be prepared and put to the JHA Council once Member States
have completed the necessary parliamentary and constitutional
procedures to implement the Agreements.
28 April 2003