Select Committee on European Union Thirty-Eighth Report



13. It is important to bear in mind that the EU-US Agreements here in question are not intended to substitute existing bilateral arrangements between the US and Member States but to supplement them. All 15 Member States have bilateral extradition treaties in place with the US while 11 had, at the time when negotiations began, concluded mutual legal assistance treaties with the US. Nor, as the Home Office pointed out in its Explanatory Memorandum dated 13 May 2003, do the Agreements preclude the conclusion of more favourable bilateral arrangements in the future (para. 15). It follows that the EU-US Agreements will have a different impact on each Member State. In other words the "added value" which they provide will vary from jurisdiction to jurisdiction: the more recent the bilateral arrangements and the more comprehensive their scope, the less the significance of these Agreements.

14. In his evidence to the Committee, Mr Ainsworth stated that the Agreements "do add value, probably not nearly as great to the United Kingdom as most other European jurisdictions" (Q 5). He further noted that the Extradition Agreement is of procedural, rather than substantive value for the UK but of greater value for other Member States as it extends extradition arrangements to a broader range of offences based on a penalty threshold and not on a list of offences (QQ 7, 10).

15. UK/US extradition arrangements will be covered primarily by the new bilateral extradition treaty signed on 31 March 2003 and laid before Parliament as a Command Paper in May.[13] The Minister confirmed that the Government's intention to enter into a new bilateral UK-US extradition treaty preceded the EU initiative and that it was always intended that the bilateral treaty would go further than the EU/US agreement. Bilateral negotiations were said not to have been influenced by the discussions at the EU level (QQ 18, 19).

16. The conclusions of the JHA Council of 5-6 June also refer to the added value brought by the Agreements. By way of illustration, the Extradition Agreement leaves to the exclusive competence of the Member States the question of how to deal with competing requests for surrender from the International Criminal Court and extradition requests from the US; it also makes provision for consultations regarding the protection to be given to sensitive information to be supplied by the requested State. The Mutual Legal Assistance Agreement on the other hand would add value by improving co-operation in the area of investigations into financial elements of serious crime. It also includes provisions allowing the use of modern telecommunication techniques for the exchange of mutual legal assistance requests and replies.[14]


17. As mentioned above, the political impetus for the conclusion of the agreements was generated by the events of 11 September 2001. The link of the Agreements with the war on terror was regarded as justifying the need to agree the authorising Decision on 6 June and the potential overriding of the scrutiny reserve by the Government. Mr Ainsworth told us:

18. We note, however, that the scope of the Agreements is much broader than terrorism and organised crime. The penalty threshold is set so as to permit extradition in cases of any offence punishable by deprivation of liberty of one year or more (Article 4(1) of the Extradition Agreement). Mutual legal assistance in identifying bank information will apply when a natural or legal person is "suspected of or charged with a criminal offence" (Article 4(1)(a) of the Mutual Legal Assistance Agreement). The Agreement enables the establishment of joint investigation teams "for the purpose of facilitating criminal investigations or prosecutions involving the US and one or more Member States" (Article 5(1)). Generally speaking, mutual legal assistance arrangements may thus apply without any penalty threshold to any offence. In short, while the Agreements may have been prompted by terrorist activity they are not confined to or focused on offences in that category.


19. Viewed from a European perspective it is clear that measures concerning judicial cooperation previously agreed within the Union constituted a major source of inspiration in the formulation of the EU-US Agreements. In this regard it will be recalled that the 2000 EU Convention on mutual assistance and its Protocol focused on expanding the scope of judicial cooperation to new areas (such as the creation of joint investigation teams and facilitating the identification of bank accounts and the exchange of information on the operation of such accounts) as well as modernising procedures to render co-operation more effective and timely. Somewhat similar concerns have informed internal Union initiatives in the field of extradition culminating in the Framework Decision on the European Arrest Warrant.

20. It was equally apparent, however, that these precedents could not be applied without modification to the somewhat different circumstances and challenges posed in regulating mutual assistance and extradition relationships with a third state. As the Explanatory Memorandum of 13 May noted, for example, none of the "mutual recognition" provisions (such as the abolition of dual criminality or the recognition of judicial decisions) contained in the European Arrest Warrant find reflection in the EU-US Extradition Agreement (para. 17). Similarly, while under the Arrest Warrant there is to be surrender of "own nationals" and the elimination of the political offence exception these two important features are not repeated in the text here in question.[15]

13   Cm 5821. The bilateral Treaty has given rise to ECHR concerns which have been exposed in debate in this House-see HL Deb. 13 May 2003 col. 127-129. Back

14   pp 22 & 23. Back

15   However, we note that the European Convention on the Suppression of Terrorism of 1977 has been re-examined of late within a Council of Europe context and that an amending Protocol has been concluded. It is relevant that this has been formulated in such a way as to permit the United States to become a party. Should it elect to do so this would, in part, address the "gap" in the EU-US text in relation to the operation of the political offence exception in terrorism cases. Back

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