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EU-USA agreements and UKUSA treaty

28 March 2012

UK parliament Committee refuses to scrutinise agreements in secret, UK agrees new treaty with USA on extradition, UK and USA prepare for "simultaneous attacks"

In addition to the controversy over the proposed EU-USA agreement on extradition and mutual legal assistance a series of other developments on EU and UK cooperation with the USA have taken place in the last few days - see the three stories below. Tony Bunyan, Statewatch editor, comments:

"We have the extraordinary situation that the UK parliament is expected to scrutinise the proposed EU-USA agreements in secret, out of public view, while the French and possibly the German parliaments will have an open debate on the issues. At the same time the UK government has reached an agreement with the USA on extradition which pre-empts a unified EU position.

While in the background the UK and the USA have agreed to cooperate to counter simultaneous attacks on their countries in the "war against terrorism" as a result of the war on Iraq"

Select Committee on the European Union rejects Home Office demand that the EU-USA agreements be scrutinised in camera - "There could be no free and open debate on the issues"

Lord Grenfell, the chair of the Select Committee on the European Union in the House of Lords, has rejected a request by Home Office Minister, Bob Ainsworth, that the committee conduct their scrutiny duties on the proposed EU-US agreements (on extradition and mutual legal assistance) in secret ("in camera"). On 24 March Lord Grenfell requested copies of the agreements for parliamentary scrutiny but in reply (27 March) the Home Office supplied copies but said these had to be treated "in confidence". By a letter of 3 April Lord Grenfell responded that:

"we cannot agree to proceeding in the way you propose in your letter... You have suggested that Sub-Committee E should examine the documents in camera. We would not be allowed to take views of experts and other interested parties. We would only be able to meet and discuss the matter with you and your officials in private. Seemingly we would not be able to publish correspondence or a Report which disclosed the contents of the Agreements. We would not be able to show the documents to other Members of this house. There could be no free and open debate of the issues"

The Home Office Minister admits that, "at least one Member State has already provided this text to its parliament" (this is France and Germany is expected to follow in consulting its parliament) but insists that because it is classified as "EU Confidential" it must remain secret. Lord Grenfell replied: "Your letter offers no explanation as to why the documents.. should remain classified as "confidential"" as they affect "the fundamental rights of citizens not only of this country but of all EU countries".

Lord Grenfell further says that the procedure proposed by the Home Office Minister:

"raises issues of substantial constitutional significance both for the Union and the UK"

The Committee, he says, stands ready to carry out its normal scrutiny role but: "in the present circumstances, we cannot move".

Note: The Home Office Minister's response of 27 March presents a confusing picture because he speaks of an "unclassified draft Council Decision authorising the Presidency to sign the Agreements in due course.. It will not however be accompanied by the text of the Agreements". This in fact is the normal practice of the Council of the European Union, the actual text of international agreements such as these and readmission agreements with third country is not publicly released until they have been signed. Only a quite formal, and uninformative, document is made public which simply "authorises" an agreement to be signed. The text is thus kept secret until it is signed when parliaments and people alike can effect no changes.

Background documentation

1. Letter from Home Office Minister, Bob Ainsworth, to Select Committee on the European Union, 27 March 2003: Home Office letter (pdf)
2. Letter from Lord Grenfell, chair of the Select Committee on the European Union to the Home Office Minister, 3 April 2003: Letter (Word)

UK pre-empts EU-USA agreement on extradition

On 31 March the Home Secretary David Blunkett, and the US Attorney General, John Ashcroft, signed a new bilateral extradition Treaty between the UK and the USA - which Blunkett said in Washington removed "layer on layer of judicial blockage".

The move was announced in the UK parliament by government Minister, Lord Falconer, who said that the existing UKUSA treaty on extradition dated from 1972 (ratified in 1976) and supplemented in 1986. In the government's view it "is outdated" and the new treaty "reflects best modern practices in extradition". The agreement will cover all offences where the sentence could be 12 months or more and bring the evidence required into line with EU states - that is for a seven page request for arrest and surrender along the lines of the European arrest warrant. Extradition can be refused unless there is an assurance that no death sentence will be carried out and carries "speciality" protection (a person has to be tried for the specified offence and against onward surrender or extradition) and, surprise surprise the UK government has assured the US government that this: "covers surrender to the International Criminal Court". The Minister summed up:

"The United States is one of our key extradition partners and there is a significant volume of extradition business between the two countries"

If the content of this UKUSA extradition treaty seems familiar they should be. It would appear it is based on the UK view of the proposed EU-USA agreement on extradition (see: Statewatch News online story). The timing too is no coincidence coming as it does when the negotiations over the EU-USA agreement have been suspended due to objections by some EU governments, notably by France, to the US demand to be treated the same as an EU member state operating under the European arrest warrant. The issue is being considered by the legal committees of the two French assemblies and the French government does not want to agree until it has received their opinions. The French Minister of Justice, Dominique Perben, said at the beginning of April that he did not know if "the agreement could be approved by France in May" (the deadline set by the Greek EU Presidency). Objections in the French parliament range from the refusal of the USA to join the International Criminal Court and a reluctance to see a third country placed on an equal footing with an EU state where there are competing requests for extradition.

It would appear that once again the UK government has pre-empted the EU-level decision on an extradition agreement by breaking ranks and coming to a deal which puts the USA on the same footing as other EU states.

Susie Alegre of Justice, commented that: "It is hard to see how such a reduction in safeguards is justifiable in the current climate. Recent high profile cases such as that of Lofti Raissi, the Algerian pilot, released after several months in prison on a extradition request from the USA when no evidence was forthcoming raise serious concerns about the government's decision to remove the requirement for prime facie evidence in extradition cases to the US".

No text of the treaty is available as a Home Office spokesperson said that US Senate has to scrutinise it before it can be formally signed - which begs the question, surely the UK parliament should have it for scrutiny too?

How the UKUSA treaty on extradition will be adopted in the UK

In the UK the treaty will become law through an arcane process known as "Orders in Council" as international treaties are agreed by the Privy Council (Cabinet Ministers automatically become PCs) in the name of the head of state, the Monarch. This procedure falls under what is called the "royal prerogative", that is where powers have never been passed over to parliament and Ministers exercise powers on behalf of the Monarch - a thoroughly undemocratic procedure.

The Queen calls a meeting of the Privy Council, usually four or five Cabinet Ministers, at which there is no discussion simply agreement on matters before it. The decision to agree the new treaty on extradition then becomes an "Order in Council", which as it relates to existing legislation (the 1989 Extradition Act) is subject to the 1946 Statutory Instruments Act. Under this latter Act the proposal will be "laid before" parliament (simply listed in the daily order paper) and if MPs do not force a negative vote on the floor of the house it automatically become law. It is almost unknown for MPs to force a debate and vote on such a matter because it means disrupting the government's planned agenda.

As this particular treaty is both delegated legislation (by statutory instrument) under an existing Act and is based on an international treaty it raises yet another arcane procedure known as the "Ponsonby Rules". Arthur Ponsonby, a life-long pacifist and campaigner for open government, was an Under-Secretary of State at the Foreign Office in the Ramsay MacDonald Labour government of 1924. He gave an undertaking, during the 2nd reading of the Treaty of Peace (Turkey) Bill on 1 April 1924, that the House of Commons would be informed of all treaties and agreements and that they would be "laid" before the House for 21 days and it became the constitutional practice. Unlike most other national legislatures where written constitutions gives parliaments the formal power of ratifying treaties and international agreements this power rests with the government in the UK (exercising the royal prerogative on behalf of the monarch).

Sources: Agence Europe, 1.4.03; Justice press release, 31.3.03;Written answer, House of Lords, 31.3.03.

UK and USA prepare for "simultaneous attacks"

- "the United Kingdom and the United States stand shoulder to shoulder" on the "war against terrorism" as well as the "axis of evil"

The same day that he signed the new extradition agreement with John Ashcroft, US Attorney General, Blunkett signed another deal with Tom Ridge, the US Homeland Security Secretary. At a press conference following the signing of the Blunkett-Ridge agreement both made clear that the joint position taken on the war in Iraq meant that both countries had become targets for terrorists. The threat, said Blunkett, meant that "because we are partners, including the conflict in Iraq" the UK and USA had to take:

"the necessary steps to protect us from simultaneous attacks, joint attacks.. the joint threat that faces us"

The Blunkett-Ridge bilateral agreement sets up a "Joint Contact Group of Senior Officials" (JCGSO) to share "knowledge and resources" and exercises "to test out different scenarios". Although said to be about "terrorism" the agreement in fact goes much wider, and covers joint UKUSA work on developing "biometric technology such as iris and facial recognition" (the USA intend to require biometric recognition on passports and visas for entry in 2004) and greater protection and surveillance for borders through visa and passenger intelligence sharing" - this is the highly controversial demand by the USA for personal details on all passengers boarding planes flying from the EU.

Ridge said at the press conference that the current task was to bring together the "watch list" information from "different agencies within the federal government" and to make it "available to all of the agencies". The US priority, he said, is:

"to consolidate these watch lists so that people at borders, people at airports and the respective agencies have access to that broader list of names, the aggregate of those names"

This confirms fears in the EU that personal data collected on passengers travelling to the USA, collected for the purpose of booking a ticket, will be accessed by US Customs and used for quite a different purpose by giving access to a multiplicity of US agencies - which is expressly forbidden in the 1995 EC Directive on data protection.

Later, on 4 April, the UK Home Secretary said in a speech at John Jay College, New York, that the UK stood "shoulder to shoulder" with the USA not just on the war in Iraq but on a new level of cooperation on terrorism and intelligence sharing.

Conclusion

When two countries like the USA and the UK join forces on a issue it is usually a clear signal - prior to any formal or democratic decision-making - to business to adapt their practices. For example, at a public hearing held in the European Parliament in Brussels on 25 March both British Airways and Lufthansa said that passengers trying to book online for flights to the USA had to tick a box agreeing to their personal details being passed over to US security agencies - if they did not tick the box they cannot book a ticket.

Sources: Home Office press release, 1.4.03 and full-text of the Blunkett-Ridge press conference on 1 April 2003