Thank you for appearing before Sub-Committee E on 4 June to give evidence on the draft EU/US judicial cooperation Agreements. The evidence session was of great assistance to the Committee in clarifying the meaning and scope of a number of provisions in the text and addressing the major issues arising from the Agreements, most notably the challenges they may pose to the protection of fundamental rights.

  We believe that there is still scope for improvement in both draft Agreements including, but not limited to, the manner in which they interface with our obligations and those of other Member States under the European Convention on Human Rights (ECHR). However, we take it from your Explanatory Memorandum (paragraph 23) and from your oral evidence (Q 1) that renegotiation is not a realistic possibility. In the light of this we welcome the assurances and clarifications given by you and your officials during the evidence session including those relating to capital punishment and the ECHR, the more important of which are set out below.

  In so far as capital punishment is concerned we note that the Government will always seek assurances from the appropriate authority (State or federal) in the United States in relevant extradition cases that the death penalty will not be imposed or, if imposed, will not be carried out. In this regard we also welcome the clarification that, in practice, there has never been an instance in which such assurances have not been fully honoured (Q 81).

  On a closely related matter we note that the relaxation of the rule of speciality (specialty) contained in Article 18(1)(a) of the new UK/US bilateral treaty is not intended to lessen protection for the individual in a capital punishment context. We understand from the oral evidence that were it ever to be used, post extradition, to introduce a charge for a capital offence in substitution for one not carrying such a penalty, even though based on the same facts, the Government would regard it as an act of bad faith for the offence to be prosecuted otherwise than on the footing that the death penalty would not be imposed or if imposed would not be executed (QQ 99, 100).

  We also welcome your clarification that, notwithstanding the absence of specific treatment of the capital punishment issue in the draft Agreement on Mutual Legal Assistance, the UK could—should it ever so wish—properly decline to assist in such cases or to subject any cooperation to conditions.

  In relation to ECHR issues more generally, we welcome the inclusion in the Preamble to the draft Agreement on Extradition of specific reference to the right to a fair trial before an impartial tribunal established pursuant to law. However, we note that there is no substantive provision explicitly regulating instances in which there may be an ECHR bar to extradition. We thus particularly welcome the clarification that the non-derogation provision (Article 16a(2) of the text under scrutiny; Article 17(2) of the subsequent version—document 9153/03) constitutes an implied ground for refusal of extradition on ECHR grounds (Q 67) and that this interpretation is shared by other Member States (QQ 64, 65).

  We also note that nothing in the Agreement is intended to disturb the current domestic law position in the UK that extradition will be refused by our courts in the event of a successful ECHR challenge to extradition including breach of fair trial rights (QQ 47, 56, 58, 59).

  In view of these, and other, assurances and clarifications the Committee decided to clear the documents from scrutiny. We would urge the Government to ensure that specific reference is included in future extradition agreements (whether bilateral or at the EU level) to refusal to extradite on ECHR grounds.

12 June 2003