Letter from Mr Bob Ainsworth MP, Parliamentary
Under Secretary of State, Home Office, to Lord Grenfell, Chairman
of the European Union Committee
On 29 May 2002, I wrote to inform you that the
JHA Council had agreed a negotiating mandate for an EU/US co-operation
agreement on mutual legal assistance and extradition based on
Articles 24 and 38 of the Treaty on the European Union. I am now
writing to update you on the progress of those negotiations.
As is usual in the case of an ongoing negotiation
for a third country agreement, the current documents are confidential
and cannot therefore be deposited for scrutiny. However, I will
provide you with the draft Council Decision authorising the Presidency
to conclude the agreement with the US on behalf of the EU when
it becomes available. At that time you will of course have an
opportunity to scrutinise the text in full.
Since the adoption of the mandate by the JHA
Council in April 2002, the Presidency and Council Secretariat
have had separate discussions with officials of the US Department
of Justice and experts from the Member States. At its meeting
of 28 November, the JHA Council agreed to changes to the negotiating
mandate as a result of the initial discussions. A number of issues
in the initial mandate were withdrawn because there was little
basis for an acceptable agreement. These related primarily to
the extradition of own nationals and the narrowing of the political
offence exception. None were contentious issues for the UK, which
already has such provisions in its bilateral Treaties with the
US. The USA's request for the Agreement to cover the elements
of the 1990 Council of Europe Convention on Asset Freezing and
Confiscation was also deferred to a possible future Agreement.
Discussions on the remaining elements of the negotiating mandate
are still being pursued with the US.
The Greek Presidency has indicated that it hopes
that the JHA Council in February will be in a position to agree
that the draft Agreement has reached a stage where negotiations
with the US can be concluded. The intention would then be to prepare
Council Decisions authorising the Presidency to sign and, following
completion of Member States' constitutional requirements, conclude
the Agreement. The Greek Presidency does not however anticipate
conclusion of the Agreement during its Presidency.
In parallel to these negotiations, discussions
have been taking place regarding the legal consequences of the
agreement. In particular, Member States have been considering
the obligations that it will impose upon them in order to bring
them in order to bring it into force and its implications for
existing and future bilateral Treaties. The majority view, which
is shared by the Government, is that the EU will be party to the
Agreement but that it will be binding on Member States and prevail
over existing bilateral Treaties to the extent that they are incompatible.
However, in order to achieve some certainty on the latter point,
it is intended that the draft Agreement should set out in some
detail whether its provisions are designed to supplement or replace
the provisions of existing bilateral Treaties. Clarity on this
issue is of importance to the Government given our existing MLA
and Extradition Treaties with the US.
I will update you on these negotiations as appropriate
pending receipt of a depositable text.
30 January 2003