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Lord Goodhart: The reference that the noble Lord, Lord Stoddart, made to my noble friend Lady Ludford shows that there are aspects of the agreement with which my party is concerned. So far as the debate we have just been having is concerned, I do not think that now is the appropriate occasion to have what could be described as a free-standing debate on the agreement recently signed between the EU and the USA. However, it would be helpful and important if the Minister could tell us what implications that agreement may have for the contents of this Bill. In addition, I should be interested to know how far the provisions of this Bill have been drafted in order to align the UK extradition law with the EU agreement, which was at that stage not signed but must have been at a fairly advanced stage of negotiation.

Lord Filkin: First, I thank the noble Baroness, Lady Anelay, for her very generous congratulations to me on my new role. I suggest that she does not quite too prematurely rejoice at my imminent departure because the tentacles of the Home Office are long and strong at times—so I may be having further days on this Bill and it will be a pleasure to work with Members of the Committee.

I agree with the noble Lord, Lord Stoddart. Some of these issues are complex and it is right and fair that he should raise his question. I shall go as far as I can today in trying to explain—in part from memory—these issues from my role in negotiating in a dark and secret place, to paraphrase what he said about this issue. I shall go further than that because this issue justifies a fairly full response in writing from the Government to the Committee and any others who are interested. To what extent is there an intersect between this measure and this Bill? We believe that there is virtually none. Nevertheless, Members of the Committee are entitled to have that set out clearly.

The noble Lord, Lord Stoddart, is right. There has been an agreement between the EU and the US on extradition, which has been negotiated. The United Kingdom, exercising its Crown prerogative, has indicated its agreement for the EU to sign the agreement as an EU-US treaty. The measure has cleared scrutiny in both Houses of Parliament before the EU indicated its willingness to sign up to it. We believe that the agreement will have virtually no impact on our existing extradition law or on the new treaty because the provisions are essentially between the EU and the US. Our own agreements with the US go beyond and further than this. To put it at its

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simplest: no parliamentary action will be required to bring United Kingdom law into compliance with the EU-US treaty because our existing law and agreements with the US already comply in full.

The noble Lord, Lord Stoddart, also asked a perfectly legitimate question about why there was the urge to reach such an agreement. One should never rush an agreement unless its merits themselves justify it, but it sits against the background of September 11th and the recognition that the EU, as well as the US, wants to have in place effective measures against terrorism. This was part of the intent of responding to the more serious circumstances of which we are aware in the light of September 11th.

The reason why the EU signed first and why the early signature was important is because the US Senate could not consider it until it had been signed. All our relationships with other category 2 countries will remain unchanged by this agreement. Not only that, but our relationship with the US—to re-emphasise the point—will be governed by our own domestic legislation and our own new bilateral treaty with the US. The agreement makes it clear that it does not apply where there are bilateral provisions which go further.

The noble Lord, Lord Stoddart, also raised a number of questions about how scrutiny operates in this place. I shall not go into detail because it is not the time. Again, I shall touch on that in the letter. Members of the Committee know well the general principles. It is a system of pre-scrutiny of agreements rather than post facto scrutiny. The area of challenge is always when there are effectively confidential negotiations in process, which is a particularly difficult area. Therefore, what happened was that at a certain point it was agreed that the cloak of confidentiality, which normally covers such negotiations, could and should be lifted to allow for relevant member states to have proper scrutiny of that. Both my noble friend Lord Wedderburn and the noble Lord, Lord Stoddart, referred to that process.

Indeed, I shall look at the letter from the noble and learned Lord, Lord Scott of Foscote, on the website and will attach it to the letter that I have promised to write so that other Members of the Committee will not have to search the web. I agree with the noble Lord, Lord Goodhart, that perhaps we do not need now to go into this in full. Clearly, it is open to Members in another place if they think our extradition relationship with the US should be considered. Clearly, the Government will respond to such a request. The noble Lord asked to what extent we had been crafting this Bill to make ourselves compliant with the EU-US agreement. The answer to that is not at all.

Lord Stoddart of Swindon: Before the noble Lord sits down—although in Committee presumably we can go on discussing this ad infinitum—I am not quite clear about the position in relation to the agreement we already have with the United States on extradition matters. The noble Lord said that the EU agreement, which we have signed, does not apply. There are no measures to be taken to bring it into law because we are

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in compliance with it. Let us suppose that government and Parliament decide that they want to alter the present position, and in altering it it ceased to be compliant with the EU-US agreement. What would happen then? Would we be in breach if we then implemented what the Government and Parliament wanted to implement? Could we be brought before the European Court because we refuse to implement something? It is feasible that at a future date we could very much disagree with something in the agreement.

The other point which concerns me and which the noble Lord, Lord Filkin, did not answer, was the assertion by Mr Vitorino that this set a precedent. Does it? If it sets a precedent, it means that the EU has taken it upon itself to define or to interpret its powers as being able to make agreements with third countries on behalf of this country, whether it is in compliance with our Act—when it becomes an Act—or not. Again, that is a very serious matter. We need assurances about it.

I appreciate that the noble Lord, Lord Filkin, cannot answer all these questions today or even tomorrow. But perhaps he could write to Members of the Committee in the light of what he said, and in the light of what I have further said, and put that explanation on paper. I should be most grateful if he could.

Lord Filkin: I shall have an initial stab at answering the question because I believe that we should give as direct and immediate a response as we can. No doubt it will benefit from being added to the letter that I have already promised to write. I suspect that the noble Lord, Lord Stoddart, is well aware, in a sense, of the nature of inter-governmental treaties. If our Government, using the Crown prerogative, make an agreement, that is an agreement with another state. It therefore places a responsibility on the Government, if they wish to ensure that they can honour such an agreement, to put it into legislative effect if it is necessary to do so through Parliament.

On these measures, we often have a debate at the beginning of Bills as to what would be the consequences should Parliament say no, and whether Parliament has the right to say no. I repeat: the position is that Parliament is sovereign on such issues. Parliament can say no. If the Government are incompliant with a treaty provision they have made and with what Parliament says, that is non-compliant. I think that that is an accurate statement of the constitutional position.

Whether or not sanctions will apply against non-compliance—again, I tread in deep waters here—depends under what pillar of the treaty such an agreement has been made. We have referred to such issues previously. I shall need to check on the specific point. The noble Lord raised a hypothetical situation. As I said, while we may need to do nothing whatever now, he raised the argument, "What if we want to change things round domestically and were then non-compliant?". Again, I venture into constitutional theory but my understanding is that Parliament can do

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what Parliament can do. If there is then a non-compliance, whether or not it is sanctionable will depend on the treaty provisions under which it is done. I shall try to answer the specific points in a letter, and will give just a broad interpretation at this point.

I think that Antonio Vitorino is a very able politician. I have not seen what he said with regard to this agreement. As the EU Commissioner for the JHA I can well believe that he will express to the parliament a degree of pleasure that it had been possible to get 15 member states to agree to this measure. Therefore, he said that perhaps this was an indication of something that the European Union was doing which is useful to ensure that it is negotiating on behalf of its 15 member states an agreement with the US that was agreeable to all 15 member states.

I repeat or emphasise that in that situation the EU is acting only because all 15 member states have said that they are prepared to agree with the action that the EU intends to take. If those member states had said that they were not in agreement, the EU would not have been able to act. So, it is the carrier for the agreement of the 15 member states who individually state that they are happy to use the EU as a carrier for such a measure.

There is a further point which I shall touch on briefly because this is not the time to talk about the future of Europe. In discussions on the future of Europe we have been very clear about the importance of preserving our right to conduct bilateral negotiations. We see this as absolutely fundamental in these issues and we should not allow that to be usurped or taken over in any way. I shall respond to any points that I have not answered, on reflection, in a letter to all Members.

4 p.m.

Lord Wedderburn of Charlton: I am sure that Members of the Committee will agree that this harsh viva voce examination of the Minister should come to an end. I wondered if he would end it by giving that famous reply of a noble Earl at Oxford as a student when asked how he would bar an entail, how he would end a fee tail estate. Perhaps the Minister will adopt his famous reply, "I'd get my man to do it". I am sure that the Minister will require a great deal of assistance in the task he has nobly undertaken. When he does, could he perhaps distribute, along with the letter of the noble and learned Lord, Lord Scott of Foscote, the very short transcript of the meeting of Sub-Committee E with the Minister, Mr Ainsworth?

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