SUBJECT MATTER

  1.  This Explanatory Memorandum (EM) is in respect of the draft Agreements between the EU and USA on judicial cooperation in criminal matters (8295/1/03). The Agreements were proposed as part of the counter-terrorism package at the special Justice and Home Affairs (JHA) Council in September 2001. They are designed to improve judicial cooperation between the European Union and the United States of America, including in relation to terrorism and associated offences. The Agreements supplement existing bi-lateral treaties between individual Member States and the US or, where no such treaties exist, create a framework for judicial cooperation.

SCRUTINY HISTORY

  2.  The text of these draft Agreements is being submitted for Parliamentary Scrutiny for the first time. The Scrutiny Committees have, however, been informed of the commencement and progress of negotiations by way of letters from the Home Office on 29 May 2002, 30 January and 27 March 2003. An Explanatory Memorandum on the draft Council Decision authorising the Presidency to sign the Agreements (8296/03) was submitted on 28 April.

MINISTERIAL RESPONSIBILITY

  3.  The Home secretary has responsibility for policy matters relating to judicial cooperation in criminal matters (except in Scotland) and takes the lead on judicial cooperation with other EU Member States within the framework of Title VI of the Treaty on European Union. Scottish Executive Ministers also have an interest.

LEGAL AND PROCEDURAL ISSUES

(i)  Legal Basis

  4.  Articles 24 and 38 of the TEU. Article 24 provides for the conclusion of international agreements by the Council for the purposes of Title V (common foreign and security policy). Articles 24(4) and 38 provide that international agreements may also cover matters falling under Title VI TEU (police and judicial cooperation).

  5.  The Government's view is that agreements under Article 24 are concluded by the Council on behalf of the Union, and that it is the Union that is a party to such agreements rather than the Member States. To this extent Article 24 has by implication conferred limited legal personality on the Union. Agreements under Article 24 are binding on Member States, subject to a declaration under Article 24(5). The UK and other Member States intend to make such a declaration in this case.

(ii)  European Parliament Procedure

  6.  The Treaty does not require any consultation with the European Parliament on the draft Agreements.

(iii)  Voting Procedure

  7.  Unanimity in the Council.

(iv)  Impact on United Kingdom Law

  8.  The provisions in Article 9 of the draft Extradition Agreement on temporary surrender reflect those in the Extradition Bill currently before Parliament. The Government is currently considering whether legislation is needed in order to enable UK authorities to request the temporary surrender of fugitives in custody in the US, in the light of the requirement to keep that fugitive in custody once transferred to the United Kingdom. This would not prevent the UK from meeting its obligations under the Agreement, though pending any legislation it is unlikely that the UK would be able to make a successful request for the temporary surrender of a fugitive from the US.

  9.  Articles 5, 6 and 7 of the draft Extradition Agreement will require administrative changes, which will simplify and speed up the procedures for transmitting extradition documentation. Other provisions in that draft Agreement are either contained in the recently signed bilateral Extradition Treaty with the US, which we hope to bring into force shortly, or in the Extradition Bill currently before Parliament. It is anticipated that these, if concluded, would enable the implementation of the EU/US Extradition Agreement.

  10.  The provisions of most Articles of the Mutual Legal Assistance (MLA) Agreement are either already in place or reflect those in the Crime (International Co-operation) Bill. Article 4 provisions would be provided by a combination of measures. The Crime (IC) Bill's provision for secondary legislation, at section 52(2), would enable the US to be designated. The planned secondary legislation under Part 11 of the Proceeds of Crime Act 2002 will generally enhance international cooperation, including with the US, against money laundering. The provisions of Parts 1-3 of the Anti-Terrorism Crime and Security Act 2001 deal with terrorist financing.

  11.  Article 5 of the draft MLA Agreement provides for Joint Investigation Teams (JIT). The Government is currently considering, including with the US, the form of legislation required to deliver this provision. Article 5 does not exactly replicate the JIT provisions in the EU MLA Convention 2000. The extent of co-operation envisaged by the US under Article 5(4) is likely to affect whether it is necessary, or possible, to designate the US by means of secondary legislation under Section 88(7)(c) of the Police Act 1996 (as amended by Sec. 103 of Police Reform Act 2002). Section 88(7) is referenced by clauses 26 (and 18) of the current Crime (International Co-operation) Bill, which provides for the dispensation of the need for letters of request for MLA in certain circumstances. Secondary legislation, to designate the US under the Police Act, is possible only if there is a bilateral Agreement with the US. Officials have commenced discussions, with their counterparts in the US, on the possible need for a supplementary provision to the existing bilateral UK/US MLA Treaty for the purposes of Article 5.

  12.  The Government would not wish to slow down, any more than was absolutely necessary, the bringing into force of these important Agreements. Following signature, and the passage of relevant legislation, the Extradition and Crime (International Co-operation) Bills, the Government would seek to introduce any further necessary legislation, which would enable it to agree either to the conclusion of the Agreements or to their application to the UK.

(v)  Application to Gibraltar

  13.  The proposal has a legal base in Title VI TEU and will not therefore apply to Gibraltar unless expressly extended. The Government of Gibraltar is being asked if it wishes to participate in this measure. Similarly, under the provisions of Articles 19 (Extradition) and 16 (MLA) of the agreements, the Channel Islands and Isle of Man will be asked if they wish to participate. This does not need to be decided before signature.

APPLICATION TO THE EUROPEAN ECONOMIC AREA

  14.  As a proposal directed at EU Member States, the Agreements will not apply to the EEA.

SUBSIDIARITY

  15.  No issues of subsidiarity arise here. The Agreements can be adopted only at EU level, but will supplement existing Treaties between individual Member States and the US. They do not preclude the conclusion of more favourable UK/US bilateral arrangements.

CONSULTATION WITH OUTSIDE INTERESTS

  16.  In view of the confidential nature of negotiations to date, no consultations with outside parties have been possible.

POLICY IMPLICATIONS

  17.  The Agreements extend some elements of judicial cooperation, which have been agreed between Member States, to the US, in particular, the provisions of the EU Mutual Legal Assistance Convention 2000 and its Protocol, together with some extradition provisions deriving from the European Convention on Extradition, Schengen Convention and the Framework Decision on the European Arrest Warrant. However, none of the "mutual recognition" provisions, for example the abolition of dual criminality or the recognition of judicial decisions in the latter Framework Decision are to be applied to the US.

  18.  The United Kingdom has, particularly in comparison with some other EU Member States, extensive judicial cooperation mechanisms with the US. These are based on the MLA Treaty of 1994, as amended, and the Extradition Treaty of 1972, as amended. The Government has also recently signed a revised bilateral Extradition Treaty with the US. The Extradition Agreement will therefore have little added value for the UK, beyond some improved administrative arrangements to speed up procedures for transmitting documentation.

  19.  The Government's policy concerns were that the EU/US Agreements should add value to existing bi-lateral treaties for other Member States even if not for the UK, and that they should neither inhibit existing bi-lateral cooperation, nor the conclusion of future bi-lateral Treaties with the US. The Government is satisfied that the provisions of the draft EU/US Agreements meet these objectives. Articles 3 (both agreements), 17 (Extradition) or 14 (MLA), and 18 (Extradition) or 17 (MLA) enable full clarification of the relationship between existing bi-lateral arrangements and the EU/US agreement. For example, the provisions of Article 4, especially subsection (2), of the Extradition Agreement would not apply to the UK because the new UK/US bilateral treaty applies a sentence threshold, not a list of offences, to extraditable offences. In addition, the exchange of designations and notifications will allow further clarification of the relationship between these Agreements and UK/US bilateral arrangements.

  20.  Similarly, the Government wished to ensure that the Article 38 Agreement, the first with legislative consequences, did not give rise to excessive interference in UK/US relations. We are satisfied that neither ECJ jurisdiction, nor infraction proceedings, would apply. The method by which the EU would ensure UK compliance with the agreement, following the specified consultation procedures, would be through the principles of loyalty and good faith to unanimous Council decisions.

  21.  The Agreements do not address all the key concerns of the US side. The Extradition Agreement does not require the extradition of own nationals, the abolition of the political offence exception or the effective enforcement of US determinate sentences for nationals returned to other EU Member States. Similarly, discussions on the application of provisions equivalent to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (1990) have been postponed to a possible future MLA Agreement.

  22.  In response, the US has sought to ensure that there remains some elements of added value. In particular the US was anxious to retain Article 10(2) of the Extradition Agreement and to avoid specific references to the International Criminal Court or the Special Courts (Military Tribunals) which could be used to try some terrorism cases. The Government was satisfied that the text of the Extradition Agreement would not inhibit the UK from giving ICC requests priority, or from refusing extradition to face a Military Tribunal which did not meet the fair trial requirements of the ECHR or Human Rights Act. The explanatory note to Article 10 of the Extradition Agreement confirms the relationship with requests from the ICC.

  23.  Whilst there are elements of the text which are not ideally drafted from a UK perspective, the Government agrees with the Presidency's assessment that further negotiations with the US are unlikely to be productive. The text reflects the differing concerns of the 15 Member States and the USA. However, the Government is satisfied that the explanatory notes are sufficient for it to determine the extent of its obligations under the Agreements. In particular, they confirm that Article 8 of the MLA Agreement does not impose an obligation to provide information to administrative bodies which have no criminal investigation function, because that would go beyond the competence of an Article 38 Agreement. The provisions of Article 8 are therefore consistent with both the UK/US bilateral (Article 7 of which refers to administrative hearings), and Section 4 of the Criminal Justice (International Co-operation) Act 1990.

  24.  Article 4 of the MLA Agreement, in effect, extends to the US the provisions of the Protocol to the 2000 EU Mutual Legal Assistance Convention. Subsection (4)(b) is required for those Member States which either have no bilateral MLA Treaty, or where those treaties do not already provide for account identification assistance, or where the Member State has not criminalised the laundering of the proceeds of the offender's own crime, including terrorist financing. The UK cannot currently provide assistance in identifying bank accounts. Although we shall be able to do so when the relevant powers under the Proceeds of Crime Act enters into force and the Crime (International Co-operation) Bill is enacted and enters into force. The UK can already provide details of identified bank accounts under existing MLA arrangements.

  25.  As indicated at paragraph 15 above, the JIT provisions at Article 5 of the MLA Agreement may require legislation; probably secondary rather than primary, which would speed up the ability of the UK to meet the requirements of the Agreement. The Government is considering whether to seek to negotiate a supplementary bilateral agreement with the US, which officials have started to discuss. Such a bilateral agreement could also clarify certain operational procedures, including the question of civil and criminal liabilities in sections 88 and 89 of the Police Act 1996 (as amended). Alternatively, the discussions could decide that such matters could appropriately be left to the competent authorities establishing JITs to decide, on a case-by-case basis, as envisaged, in the Article 5(2) references to "procedures" and "terms of participation".

  26.  Article 9 of the draft MLA Agreement relates to data protection. It restricts the use of evidence or information by the requesting state to certain listed circumstances and enables the requested state to place additional restrictions on a case-by-case basis. Its provisions are not significantly different from those of the UK/US bilateral MLA Treaty, except for Article 9(1)(b) which allows the requesting state to use evidence or information to prevent an immediate and serious threat to public security without obtaining the prior consent of the requested state. Such occurrences are likely to be rare, and in any event it is unlikely that a requested country would be aware of any such use of information under current arrangements. The explanatory note to Article 9 reflects a similar provision in the Council of Europe Cybercrime Convention.

  27.  The provisions of Article 14 of the draft Extradition Agreement are already common practice in UK/US extradition cases, where either side has concerns about the public disclosure of sensitive information (for example relating to sources of intelligence or identifying potentially vulnerable witnesses).

FINANCIAL IMPLICATIONS

  28.  No direct financial costs have been identified at this stage. But should agreement be reached, we anticipate that the unit costs associated with the execution of requests under Article 4 of the MLA Agreement would reflect those estimated in relation to the Proceeds of Crime Act and the Crime (IC) Bill. Other costs are anticipated as minimal, given the existing extensive UK/US cooperation in these matters.

TIMETABLE

  29.  The Presidency intends to seek adoption of the Council Decision authorising signature of the Agreements at the JHA Council on 5-6 June, in order to sign the Agreements at the EU/US summit on 25 June.

13 May 2003