Select Committee on European Union Thirty-Eighth Report

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

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