Examination of Witnesses (Questions 1
WEDNESDAY 4 JUNE 2003
MP, MR CLIVE
1. Good afternoon, Minister. We are very grateful
to you indeed for coming. I think I recognise your colleagues
flanking you from previous occasions, one I certainly recognise
from a long, long time ago. I understand that you may have to
leave to go to a division in the House of Commons at quarter to
five or thereabouts and, as and when that happens, you will come
back to us as soon as you can. Would you like to start with an
(Mr Ainsworth) Yes. Thank you, my Lords,
for giving us the opportunity to come and talk to you, and I will
seek not to inconvenience you any greater than that, but I do
want to go and vote, if there is a vote in the Commons. Can I
just introduce the team that I have got. Clive Welsh is the Head
of the Judicial Co-operation Unit at the Home Office, Richard
Clayton is our Assistant Legal Adviser, and Paul Regan is the
Head of the Extradition Bill Team. I would like to rely on those
individuals so that we try and answer your questions as fully
as we possibly can today. Can I say to the Committee that you
will be aware that the agreements that we are considering are
due to go to a JHA Council on Friday. It is no good in beating
about the bush, or not being direct with the Committee. We do
wish, if the opportunity arises, to give our agreement to these
open agreements on Friday. Now, I appreciate that might not be
what the Committee wants to hear. We would hope that you would
be able to clear the items from scrutiny today, we do have a limited
timetable in these cases. We do not feel that it is appropriate
on measures like this, which are part of the counter-terrorism
package that was agreed at the Extraordinary Council in September
2001, that we, the British Government, should be seen to be dragging
our feet, or failing in our commitment to introduce measures to
fight organised crime and terrorism. So in order to be clear with
the Committee we have tried in the very limited timetable that
we have had, to give you confidential documentation before we
were able to give you open documentation, to try to give you the
opportunity to scrutinise these, or to maximise the opportunity
for scrutiny. We will potentially be overriding scrutiny on Friday.
2. Minister, we understand the position and
we understand the timetable. We will, of course, do our best to
deal with any problems that we perceive in these documents within
the appropriate timescale. I should say that the tightness of
the timescale is attributable one might thinkand I do thinkto
quite unnecessary confidentiality and classification given to
the agreements by the Greek President. There was no reason why
these documents could not have been made available earlier, but
that was not the British Government's fault. That was a simply
a state of affairs that you had to put up with and we have to
put up with. We will do our best to accommodate your timetable,
but our duty is to do a proper scrutiny.
(Mr Ainsworth) I fully understand that, my Lord, but
all I would say to you are two things. Yes, of course, we cannot
operate in isolation and we were governed, as you say, by the
general rules that were applied to the European Union negotiations.
I hope the Committee also accepts that it is extremely difficult
to be anything other than confidential when you are dealing with
negotiations with a third party, and that was the situation that
the Presidency proposed.
3. That is certainly so whilst negotiations
are continuing. Once negotiations are over, there is no need for
that confidentiality, surely?
(Mr Ainsworth) That is true, but there is a legal
requirement to publish proposals in a particular way in this country.
They have to be published as a Command Paper and we cannot publish
those proposals or those conclusions ahead of publication effectively.
So, to a degree, we were then stymied by our own procedures as
to how quickly we could get that open document to the Committee.
Chairman: I understand. We do not need to get
into a debate now about the need for confidentiality, but there
is some ground for supposing that all governments are, by nature,
inclined to overuse the classification. Lord Lester?
Lord Lester of Herne Hill
4. Thank you, my Lord Chairman. Can I just say
I do not understand that at all, and I would like you to come
back and clarify it. I can understand, of course, the confidentiality
rules about the publication of treaties and the laying of the
problem is one thing, but I do not understand any rule under English
law or practice which forbids the Foreign and Commonwealth Office
from laying a draft treaty before us if it so chooses. I do not
know of any domestic rule and, if there is one, I would be very
grateful to be corrected.
(Mr Ainsworth) My Lord, it is my understanding
that we got first the confidential documentation to you as quickly
as we could, then a public document to you as quickly as we were
allowed to do in our procedures. Now, if you can point out to
me a way that we can avoid this and unnecessarily annoying the
Committeeas we quite obviously have doneI would
be very happy to try to pursue that.
5. Minister, I do not want to take the short
time that we may have available to ask you questions pursuing
this issue of confidentiality, but my short answer would be that
the rules should be changed so that where confidentiality is not
needed, it is not used. That ought to be the overriding rule,
and I am not sure that the rules, to which you refer, recognise
that. In paragraph 19, Minister, of the Explanatory Memorandum,
the Government's policy concern is expressed with regard to the
agreements between the European Union and the United States should
add value for other Member States, even if not the United Kingdom.
Does the UK Government have a view as to ways in which the agreements
do this? Do they add value and, in what particular ways does the
Government perceive these agreements as adding value?
(Mr Ainsworth) In our negotiating position
we wanted to try to make sure that we were free to enter into
our own arrangements, and were not restricted in any way by the
agreements that were made at a European level. Yes, they do add
value, probably not nearly as great to the United Kingdom as most
other European jurisdictions. We have got good long-term extradition
arrangements with the United States. Also, we have got Mutual
Legal Assistance arrangements with the United States. That is
not the case with many of our EU partners, but they do add value
to us in some small ways. On the extradition side, I think that
is limited to freeing up the procedures and us not having to legalise
the documentation at the Foreign and Commonwealth Office and,
therefore, avoiding unnecessary bureaucracy and delay. I do not
think there is any more value that is added on the extradition
6. Procedural value rather than substantive
(Mr Ainsworth) Yes, for ourselves.
7. For ourselves.
(Mr Ainsworth) Then for some other states the value
is far greater. They have got relatively limited arrangements
with the United States based on list systems, where they have
got Extradition Agreements on a far more limited range of offences.
So there is considerable added value in them.
8. Do we know whether all the Member States
have some sort of bilaterals with the United States?
(Mr Ainsworth) Extradition, yes.
(Mr Regan) At the moment on extradition, they all
do, except Sloveniaan accession statewhich does
not appear to have any sort of treaty, but all of them have an
agreement of some shape or form on the extradition front.
9. The effect of the agreement, when it becomes
final, between the European Union and the United States will be
that Slovenia will have to have a bilateral, or may not have to
because the Union Agreement will suffice?
(Mr Regan) The Union Agreement will suffice. Whether
Slovenia then needs to enact some sort of provision in its domestic
law to give effect to it is clearly a matter for Slovenia, but
the effect of it will be that it will have extradition relations
with the United States.
10. I understand. What about the United States?
Presumably it adds value to the United States as well? Are there
any particular respects in which the United States has asked for
particular substantive provisions?
(Mr Ainsworth) There are some considerable extensions
that every Member State is involved with currently because of
the priorities that we have with regard to the Mutual Legal Assistance
side and quite a widening of the extension of our ability to co-operate
in that regard. The same applies with regard to the United States
in terms of streamlining their extradition arrangements as well
with many European countries.
(Mr Regan) The other thing, as the Minister said,
is that quite a few countries' existing bilateral treaties with
the United States are based on a list of offences. Moving to a
threshold clearly benefits both the Member State concerned and
also the United States.
11. Can you help me with this. Perhaps it is
something I should know, but I do not. These are agreements between
states. The United States, as a sovereign state, is entering into
the agreement on behalf of its whole territory, but a number of
the crimes for which there may be extradition will be state crimes.
So far as that is concerned, the arrangements that the United
States makes bind the states, do they? When I say the states,
the constituent states of the United States?
(Mr Ainsworth) The treaty obligations will bind the
state authorities as well as the federal authority in the United
12. But the requests for extradition will come
from a federal level?
(Mr Regan) If somebody is wanted in a state for a
state crime, the state authorities will pass those papers to the
State Department which, on behalf of the United States, pass it
to the UK, or whichever country it is.
13. Are the United States' federal authorities,
in such a case, any more than a post box? Do they exercise any
degree of judgment as to the need for extradition?
(Mr Regan) As we understand it, they will look and
check that it is of an appropriate seriousness, but beyond that
they largely act as a post box.
14. I see. Thank you.
(Mr Ainsworth) Looking for the advantages to the United
States, some of the things that were discussed during the European
Arrest Warrant debates that we have had in this place, those advantages
apply to the United States as well. For instance, at the moment
there are some European jurisdictions who will not extradite their
own nationals. There will now be
(Mr Regan) No there won't . . .
(Mr Ainsworth) They are not.
15. They are not.
(Mr Ainsworth) Sorry. That applies within the European
jurisdiction, it does not apply to the United States.
(Mr Regan) That was one of the things of value that
the United States wanted, but was unable to secure.
(Mr Ainsworth) Yes. That is one of the things that
they have with ourselves, but they were not able to agree at a
16. Going ahead to a topicwhich I am
sure a number of the members of this Committee may be interested
inif a state is seeking to extradite for a capital offence
and an assurance is given by the federal government that the death
penalty will not be imposed or, if imposed, it will not be executedyou
may remember the wording in the relevant Articlewhat is
the constitutional position, do you know, as between the federal
government and the state? Is an assurance something that the state
is bound by?
(Mr Ainsworth) We require a commitment from an individual
who is able to effectively implement and honour that commitment.
So in some cases where the individual state has a mandatory sentence
it will have to come, in return that sentence will not be implemented.
In other cases, it will be from the prosecutor who will give us
a commitment, that he will not ask for the death sentence.
17. It comes directly from the prosecutor. So
you would get an assurance not from the federal government, but
you would get it from the state prosecutor or from the state?
(Mr Ainsworth) From the person who has the ability
to actually deliver the assurance that has been given.
18. Thank you. Was it just co-incidence, or
was there a particular reason why we entered into negotiations
for a bilateral and concluded it shortly before the Union/US Agreement
(Mr Ainsworth) We issued a consultation document on
modernising extradition in the spring 2001 and it was our intention
thenthe United States being one of our main extradition
partnersto seek to renew the treaty with the United States.
Of course, these proposals came up in the aftermath of September
11, later on in the same year. So it was, to that extent, co-incidence.
19. Has it made any difference to the contents
of the bilateral?
(Mr Regan) No. The bilateral, in some ways, goes further,
but that was always the plan. The negotiations on the bilateral
were not influenced by the fact that, in parallel, there were
negotiations on a multilateral agreement. It was always understood
that in the case of the UK and the US the bilateral would go further
and would, therefore, effectively govern our extradition relations.