Examination of Witnesses (Questions 20
WEDNESDAY 4 JUNE 2003
MP, MR CLIVE
20. Being consistent with their Union/US Agreement?
(Mr Regan) Yes. Because of the way the multilateral
one is framedin many places it says: "This only applies
if there is not already a bilateral that goes further"it
was always understood, during the negotiations on the bilateral,
that would it be likely to govern our relations.
21. Yes, I see. Thank you. There has already
been some reference to the problems about scrutiny of the documents
while they remain subject to a confidentiality classification.
What was the position in the United States about this? As I understand
it, treaties and agreements of this sort have to be ratified by
the Congress, or by the Senate, or by some authority?
(Mr Ainsworth) Post-negotiation they have to be ratified
by the Senate.
22. At what point do these agreements get placed
before the Congress for ratification?
(Mr Welsh) After signature.
23. Immediately after signature?
(Mr Regan) Not immediately.
24. Not before signature. Have they been made
public in the US yet?
(Mr Regan) No. The procedure in the United States
is that they are signed and the White House then has to submit
them to the Senate with a detailed Explanatory Memorandum. That
takes several months after signature. So, in this case, neither
of these agreements nor the new bilateral treaty have yet been
deposited with the Senate. Although, because we have made them
public, senators now presumably have access to them, if they are
25. Yes. Do they come into effect on signature,
but subject to being set aside, or not until the ratification?
(Mr Regan) No. They cannot take effect in the United
States until they have secured the "advice and consent",
to the use of technical terms in the constitution, of the Senate.
26. It is the Senate.
(Mr Regan) Yes. They are sent to the Senate. The Senate
can either approve them as they are, reject them, or say: "We
will only accept this with the following modifications".
27. Then it comes back for more negotiations?
(Mr Regan) Yes.
28. There are going to be several months before
these come into effect then?
(Mr Regan) Depending on the view the Senate take.
They could say: "We are happy with them as they are".
29. They will not be placed in front of them
until they have been signed, which is going to be within the next
month or so, yes?
(Mr Welsh) Yes, we would expect so.
(Mr Ainsworth) If we reach agreement on Friday, we
are going to sign them fairly soon, yes, and that is, of course,
different from our own. The Order will come before Parliament
here and can obviously be prayed against, but in that regard it
is different the way they do their business from the way that
we do over here.
30. Apart from the scrutiny process, such as
negotiations, the House of Commons is against it as well. What
is the function of Parliament? Parliament is to ratify it?
(Mr Ainsworth) There will be an Order in Council for
31. There will be an Order in Council and that
gets the usual statutory instrument?
(Mr Ainsworth) That gets the usual statutory instrument
and that can be prayed against.
Chairman: Yes. Thank you very much. Lord Lester?
Lord Lester of Herne Hill
32. So far as the EU Treaty is concerned, there
will be no further opportunity for Parliament to have any scrutiny,
other than the scrutiny by this Committee, in terms of anything
can happen before it creates binding obligations on the European
(Mr Ainsworth) No. The Treaty obligations
do not, do they?
(Mr Welsh) The agreement obligations will only come
into effect for the United Kingdom when we withdraw our declaration,
which we will have to make, to the effect that we can only be
bound by the agreement when we have gone through our constitutional
procedures. There will be some small, we think, pieces of legislation
required in order to be able to put the agreement into effect.
Those pieces of legislation clearly go before Parliament. We would
anticipate that almost all of them will be secondary; personally,
I think all of them will be secondary. Obviously, we are not bound
by the agreement until we withdraw our statement that "we
will not be bound", ie until we have legislated to give effect
33. Right. What I do not quite follow, apart
from the political expediency, given that the United States will
not be in a position to ratify until the Senate has decided one
way or the other some weeks after signature, I do not understand
why there is this tremendous rush for this Friday? Why cannot
there be more time for scrutiny by national parliaments, given
that this is our last opportunity to scrutinise before it creates
binding European obligations?
(Mr Ainsworth) We need to be able to actually start
that process. It is all right saying that the Senate may not ratify
for a couple of months, but until we have actually got signatures
on the documents, then that process is not even going to start.
34. The difference is, is it not, that we can
only scrutinise before signature, whereas the United States is
able to scrutinise between signature and ratification before they
So their legislature has an opportunity, which
we do not have. Therefore, the pre-signing of the scrutiny is
crucial for this country in terms of our own parliamentary interests.
(Mr Ainsworth) Any legislative changes
will, as I say, be approved by Parliament, but you are right,
those treaty obligations that do not require the legislature,
then there is only the scrutiny provision that gives your Lordships
and Parliament, as a whole, input.
35. The Order of Council, to which you referred,
applies only to the bilateral?
(Mr Welsh) Yes, absolutely.
(Mr Ainsworth) Yes, or any other legislative change
that we have to bring in order to enact.
36. Minister, can I now ask you a question or
two about the substantive contents of the agreement. Article 4
tells one what offences are to be extraditable offences, and it
covers every offence punishable under laws by requested States
by imprisonment for a maximum period of more than a year or, of
course, by a more severe penalty. That is a fairly low threshold.
The number of offences, which probably people would not really
regard as that serious in the scale of things, can be punished
by some sentence, is that satisfactory?
(Mr Ainsworth) It has been the case for many years.
We have not changed the threshold. Currently we are prepared to
extradite in all cases of a 12 month threshold, where the maximum
penalty applies to 12 months, that is to the United States, that
is to our European partners as well. So there is nothing new in
that and the agreement has stood since 1870.
37. There has been an executive discretion not
to extradite them, has there not?
(Mr Ainsworth) There remains an executive discretion
with regard to the United States, but a more limited one.
38. A more limited one, yes.
(Mr Regan) Our treaty obligation to extradite to the
United States for offences of 12 months or more is not changed
by either the bilateral or the multilateral agreement. We have
had that obligation to the United States up until now and we will
continue to have it.
Lord Lester of Herne Hill
39. Was there not a traditional safeguard, I
thought in the old days, of a prima facie case to be established
before there could be extradition, and that has now gone?
(Mr Ainsworth) That is the main change.
There was a requirement with regard to the United States' establishment
of a prima facie case.