WEDNESDAY 4 JUNE 2003

BOB AINSWORTH MP, MR CLIVE WELSH, MR RICHARD CLAYTON AND MR PAUL REGAN

  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 opening statement?

  (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 think—and I do think—to 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?

  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 Committee—as we quite obviously have done—I 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 side.

  6. Procedural value rather than substantive value?
  (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 Slovenia—an accession state—which 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 States.

  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 European level.

  16. Going ahead to a topic—which I am sure a number of the members of this Committee may be interested in—if 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 executed—you may remember the wording in the relevant Article—what 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 concluded?
  (Mr Ainsworth) We issued a consultation document on modernising extradition in the spring 2001 and it was our intention then—the United States being one of our main extradition partners—to 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.