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 A number of issues in the initial mandate were withdrawn because there was little basis for an acceptable agreement.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