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UK parliament Select Committee issues critical report on EU-US agreements

28 March 2012

UK parliament Select Committee issues critical report on EU-US agreements

The Select Committee on the European Union of the UK House of Lords has issued a report on the EU-US agreements on extradition and mutual legal assistance. The Committee's first concern was the failure of the Home Office to provide a non-classified version of the agreements. Negotiations between the EU and the USA began in the summer of 2002 and continue until the end of February 2003 (in August 2002 and March 2003 Statewatch published the first draft and then the February version on this site).

The Home Office initially supplied the committee with documents "Confidential" and offered to give evidence in closed session, however the Committee "refused to scrutinise them in secret" and on 10 April "took the unprecedented step of.. writing, jointly with the Commons European Scrutiny Committee, a letter to the EU Presidency" calling for all national parliaments to be sent "non-classified" version and to be given six week to conduct scrutiny. The text was not released in a "non-classified" format until 6 May (see: EU: Council capitulates and releases draft EU-US agreement) and not deposited in parliament until 13 May. The Home Office Minister, Bob Ainsworth, appeared before the committee on 4 June and told it that the government "will potentially be overriding scrutiny" as they intended to vote for adoption at the Justice and Home Affairs Council just two days later on 6 June. The Committee was understandably not impressed and concludes:

"the decision of the Presidency to retain the "confidential" classification of these Agreements after the negotiations between the EU Member States and the US was unnecessary and contrary to the democratic accountability that ought to inform decisions by EU institutions regarding access to documents"

The Committee was equally not impressed by the alleged rational and scope of the Agreements. Mr Ainsworth argued before the Committee, and in an explanatory memorandum, that quick agreement was necessary because it was "part of a counter-terrorism package" covering terrorism and organised crime agreed in September 2001. The Committee notes that "the scope of the Agreements is much broader than terrorism and organised crime". The penalty threshold in extradition cases was set at possible sentences of just 12 months and for the provisions of mutual assistance where a person is "suspected or charged with a criminal offence" and that "generally speaking mutual legal assistance arrangements may thus apply without any penalty threshold to any offence". The Committee concludes:

"In short, while the Agreements may have been promoted by terrorist activity they are not confined to or focussed on offences in that category" (para 18)

The Committee's findings on the extradition agreement

The report is critical of three aspects of the extradition agreement. First because "there is no substantive provision in the Agreement explicitly regulating instances in which there may be a ECHR ban on extradition". Although the Minister tried to reassure the Committee they say, not just in this Agreement but for future Agreements which have to be consistent with this one (eg: the planned Agreement on civil law), that:

"it would be preferable.. if the Agreement explicitly provided for the possibility of extradition being refused on ECHR grounds, as the Convention forms an integral part of Union law"

Second, on the issue of extradition in cases where the death penalty may result. The Committee noted that the initial EU negotiating mandate sought to get a guarantee of the non-imposition of capital punishment sentences but the EU side gave ground because "some [US] state courts were obliged to impose the death penally for certain offences but "it is then discretionary whether or not it is carried out". In the end the Agreement says EU member states "may" refuse extradition unless an assurance is given that if imposed a death penalty will not be carried out. So the situation is that EU states "may" refuse extradition and US state courts may exercise their discretion in death penalty cases. How it might be asked does this square with the fact that from July 2003 Protocol no 13 to the European Convention on Human Rights came into force under which the death penalty is ruled out in in all circumstances (see: Statewatch story).

Third, the Committee is very concerned that people might be extradited to face trial in a US-style military tribunal. It says:

"We recommend that the government adopt a practice of requiring, as a condition of extradition in cases where trial before a military tribunal or other similar exceptional court is an option under US or State law (as the case may be), an assurance that the extradited person will be tried before a normal federal or State court".

The Committee's findings on the mutual legal assistance agreement

The term "mutual legal assistance" is a euphemism for the provision of a whole range of police and intelligence cooperation ranging from handing over evidence for a case being tried in the USA, gathering evidence for a case to be tried in the USA (including telecommunications surveillance) and the creation of "joint investigative

The Committee expresses five concerns on the mutual legal assistance agreement. The first is that the Agreement "does not contain any provision" to provide "safeguards in death penalty cases". This issue arose when the German government refused to provide evidence in a death penalty case in the USA and remains "a difficult area" in the words of the Home Office Minister. "It is not at all clear that assistance should be a priori refused in all cases that may involve the imposition of the death penalty". The Minister said that "decisions will be taken on a case-by-case basis", which is no guarantee of anything.

The Committee is concerned too about the scope of financial information that could be asked for by US agencies. Although the government argued that it was intended to extend to the USA certain provisions in the 2001 Protocol to the EU Convention on mutual legal assistance the Committee's report says that Article 4.1.b. has "no direct parallel in the 2001 Protocol". Article 4.1.b., "which is not drafted with elegance or clarity", allows for data and information to be exchanged on convicted people and those "otherwise involved in a criminal offence" and for searches of "non-bank financial institutions" or "financial transactions unrelated to accounts". The only example the Home Office Minister could offer was that of bureaux de change and admitted that innocent third parties' accounts could be used for money-laundering without their knowledge. The Committee got a verbal commitment from the Minister that any exchange should concern an actual investigation but concluded that:

"The terms, however, remain very broad and the provision as drafted could extend to a wide range of information about legitimate everyday transactions of, as the government admitted, "innocent third parties""

The Committee's third concern is over the creation of joint investigation teams. The provision, in Article 5 of he Agreement, simply says that the operations of these teams would be agreed "between the competent authorities" of "the respective States concerned". The Committee notes that this broad and unlimited power is "in sharp contrast with the regulation of joint investigative teams in the EU, where specific rules on their powers, criminal and civil liability and data protection issues have been established by Third Pillar legislation". The Committee therefore concludes:

"It is therefore not clear whether the operations of these teams, including aspects such as the liability of participating members, would be determined by legislation - and would therefore be subject to parliamentary scrutiny - or would merely take the form of an executive agreement between prosecutors or law enforcement authorities"

The Committee's point is well made as such joint investigation teams could be made up of police and internal security agencies from a number of EU states plus from the USA side the FBI, CIA, DEA and US Customs working under no established rules.

The fourth concern is over Article 8 which speaks of mutual assistance extending to national and "other administrative authorities investigating a case with a view to a criminal prosecution". The government assured the Committee that information would not be provided unless the requesting authority had proper competence in criminal matters, but this is not what the agreement says.

The Committee's final concern is over the almost total lack of data protection in the agreement and noted that there were no provisions to ensure the correct use of data, the rights of the data subject to correct data and no conditions prohibiting the passing of data to third parties. The Committee concluded:

"We urge the government to ensure that a high level of data protection, consistent with EU legislation and the 1981 Council of Europe Data Protection Convention, is required as a condition for the provision of information to the US"

This Committee managed to get some useful assurances on how the UK government might interpret the provisions but the substantive reservations expressed - together with those of other national parliaments and the European Parliament - were simply ignored.

Current documentation

1. EU-US agreements on extradition and mutual legal assistance, Select Committee on the European Union, HL Paper 153, 15 July 2003: Text of main report (pdf)
2. Link to html version which includes the correspondence between the Committee and the Home Office
3. Link to the evidence given by the Home Office Minister (4 June 2003)
4. European Parliament adopts highly critical report

Full-text of the agreements, earlier drafts and commentaries

1. Agreements between the European Union and the United States of America on extradition and on mutual legal assistance as signed in Washington on 25 June 2003: 9153/03 plus COR 2 and COR 5 (pdf)

2. Draft agreements between the European Union and the United States of America on extradition and on mutual legal assistance, 8295/1/03, 2.5.03.

3 Procedure regarding the draft Agreements on judicial cooperation with the USA: 8296/1/03 (Word) 8296/1/03 (pdf)

4. Text of the letter from the UK parliament's Select Committee on the European Union (House of Lords) and the Europe Scrutiny Committee (House of Commons) to the Greek Presidency of the Council of the European Union: Joint letter

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

5. Statewatch exclusive reports in April 2003:

EU-USA agreements - the drafts on the table: Full report and documentation
- two agreements on extradition and mutual legal assistance being negotiated in secret
- extradition to USA to apply to any suspected offences bringing just a one year sentence
- USA successfully opposed any reference to the International Criminal Court or to Special Courts (Military Tribunals)
- "A broad, categorical, or systematic application of data protection principles to refuse cooperation is.. precluded"
- FBI and other US agencies to operate in EU in joint investigation teams with full powers of search, surveillance and arrest

EU-USA and UK-USA: Full report and documentation
UK parliament Committee refuses to scrutinise agreements in secret
UK agrees new treaty with USA on extradition
UK and USA prepare for "simultaneous attacks"

6. Statewatch exclusive report in August 2002

EU-US agreement being negotiated: Special Statewatch Report
Secret agreement on criminal matters, investigative procedures and joint teams being negotiated without the the European or national parliaments being consulted. Statewatch refused access to full-text of document because: “the interest of protecting the Council’s objectives outweighs the interest in “democratic control”"

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