MUTUAL ASSISTANCE IN CRIMINAL MATTERS
(a)
(20337)
9636/99
COPEN 11
|
Amended draft Convention on mutual assistance in criminal matters between the Member States of the EU. (Consolidated text)
|
(b)
(20520)
11084/99
COPEN 37
|
Draft Convention on mutual assistance in criminal matters between the Member States of the EU: data protection provisions.
|
(c)
(20521)
11570/99
COPEN 42
|
Report on the proceedings of the Working Party on Judicial Co-operation in Criminal Matters: amended text on joint investigation teams.
|
(d)
(20523)
11603/99
COPEN 44
|
Report on the proceedings of the Working Party on Judicial Co-operation in Criminal Matters: responsibility of officials in the context of cross-border investigations.
|
(e)
(20556)
12010/99
COPEN 47
|
Amended draft Convention on mutual assistance in criminal matters between the Member States of the EU: transmission of requests and liability of officers.
|
(f)
(20618)
12509/99
COPEN 54
|
Amended draft Convention on mutual assistance in criminal matters between the Member States of the EU: transmission of requests by modern technical means.
|
(g)
(20653)
12867/99
COPEN 56
|
Amended draft Convention on mutual assistance in criminal matters between the Member States of the EU. (Consolidated text)
|
(h)
(20726)
13451/99
COPEN 60
|
Amended draft Convention on mutual assistance in criminal matters between the Member States of the EU. (Consolidated text)
|
| Legal base: |
Article 34 EU; consultation; unanimity
|
| |
| Forwarded to the Council:
| (g) 9 and 10 November 1999
(h) 24 November 1999
|
| Deposited in Parliament:
| (e) 26 October 1999
(f) 9 November 1999
(g) 17 November 1999
(h) 1 December 1999
|
| Department: |
Home Office |
| Basis of consideration:
| (e) EM of 17 November 1999
(f) EM of 23 November 1999
(g) and (h) EM of 13 December 1999
|
| Previous Committee Reports:
| (a) HC 34-xxix (1998-99), paragraph 3 (27 October 1999)
(b)(c) and (d) HC 34-xxxi (1998-99), paragraph 7 (10 November 1999)
(e)(f)(g) and (h) None
|
| To be discussed in Council:
| March 2000 |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Documents (a) - (g) cleared
Document (h) not cleared; further information requested
|
Background
4.1 On 1 December, we cleared the interception
provisions — Title III — of this draft Convention.
We still have a number of uncleared documents, however, relating
to various other sections of the instrument, besides three versions
of the consolidated text. The latest of these — document
(h) — subsumes or supersedes the content of all the others
and our Report will, therefore, concentrate on it.
4.2 The draft Convention was discussed at
the recent Justice and Home Affairs (JHA) Council on 2 - 3 December.
We understand that Spain placed a reserve on the document with
regard to its territorial scope of application, but that significant
progress was made on the interception provisions, on data protection
and on joint investigation teams. The aim is now for final agreement
to be reached at the March meeting of the JHA Council.
The document and the Government's views
4.3 Document (h) is the latest version of
the consolidated text to be deposited, and is the text which was
discussed at the JHA Council. In a full and helpful EM, the Minister
of State at the Home Office (Mrs Barbara Roche) outlines and comments
on the main changes from earlier versions in relation to: transmission
of letters of request (the subject of documents (e) and (f));
joint investigation teams (the subject of document (c));
criminal and civil liability (the subjects of documents
(d) and (e)); and data protection (the subject of document
(b)).
4.4 The Minister says:
— Article 6 (Transmission
of Letters of Request)
"Article 6(1) incorporates the changes introduced
in [document (f)] to allow letters of request to be sent by any
means capable of producing a written record. This will cover requests
sent by e-mail. [Document (f)] originally proposed that the text
should form a new paragraph 4 to Article 4 of the draft Convention;
the text in [document (h), the most recent consolidated text]
reflects the changes agreed at the Judicial Co-operation Working
Group on 10 November. These move the text from Article 4 to Article
6(1) and the reference to oral letters of request from the main
text to the Explanatory Report. The Government supports the substance
of the text as well as the positional change.
"Article 6(3) contained an opt-out for the United
Kingdom and Ireland providing that requests and communications
to them must be submitted via Central Authorities instead of directly
between judicial authorities. It was the subject of a now lifted
scrutiny reserve from one Member State. The reserve was lifted
on the condition that there is a specific reference in the Convention
stating that the opt-out can only be used by the United Kingdom
and Ireland. The current drafting of Article 6(3) reflects this.
This clause is not in the best spirit of the Convention, but,
as it refers to forbidding other Member States from using
the opt-out, does not in practice cause the United Kingdom any
problems.
"The paragraph also has a further clause allowing
any Member State to apply the principle of reciprocity to requests
from the United Kingdom and Ireland, in other words to require
requests sent from the UK and Ireland to be sent from and to Central
Authorities. This is not helpful and if implemented may well negate
the gains that prosecuting authorities in the United Kingdom would
gain from being able to transmit requests directly to the executing
authorities in other Member States. However in practice the United
Kingdom itself intends to move towards the direct transmission
of requests, and has already agreed to the principle of direct
transmission in relation to requests sent under the Schengen Convention
[the relevant provisions are contained in Article 53(1)]. If we
do accept direct transmission of requests we would have no need
to use the opt-out in Article 6(3) (and consequently would not
suffer under the reciprocity clause). To reflect further the links
between the Schengen Convention and the Mutual Assistance Convention
the text in [document (h)] includes a further, and new, amendment
to Article 6(3). The Article now reads in full (with new text[27]):
'Notwithstanding paragraph
1, the United Kingdom and Ireland, respectively, may, when giving
the notification provided for in Article 23(2), declare that requests
and communications to it, as specified in the declaration, must
be sent via its central authority. These Member States may at
any time by a further declaration limit the scope of such a declaration
for the purpose of giving greater effect to paragraph 1. They
shall do so when the provisions on mutual assistance of the 1990
Schengen Convention are put into effect for them.
'Any Member State may apply the principle of reciprocity
in relation to the declarations referred to above.'
"The effect of this new clause is to ensure
that when the direct transmission provisions of the Schengen Convention
(which have no possibility of opt-out) are brought into force
the United Kingdom and Ireland will have to limit the extent of
any opt-out under Article 6(3) to ensure a greater effect is given
to Article 6(1). We are content to accept the clause with the
new text.
"The change to Article 6(5) is a minor technical
one adding requests under Article 13 (joint investigation teams)
to those which can be sent by or to a police or customs authority.
Current United Kingdom practice is for joint teams to be set up
by the police and/or customs without the involvement of judicial
authorities. The amendment makes sure that the existing practice
can continue.
— Article 13 Joint investigation teams
"The first change is to paragraph 4. Members
of a joint investigation team have a general right to be present
unless, in accordance with the law of the Member State where the
team operates, the team leader decides otherwise. Rights of attendance
in the United Kingdom are generally a matter for codes of practice
but as these are equivalent to subordinate legislation the Government
considers that they would be covered by the term 'national law'.
There will in any case be a reference to 'operational reasons'
as a way of restricting attendance at specific parts of an investigation
in the Explanatory Report to the Convention. In practice we think
it most unlikely that a foreign officer will challenge the right
of a team leader from the United Kingdom to prohibit his presence
from certain parts of the investigation.
"The second change concerns paragraph 9. The
new text reflects the strong desire of the United Kingdom and
other Member States to ensure that there was no absolute
right to use information obtained in one country for detecting,
investigating and prosecuting other criminal offences. We were
concerned this absolute right might potentially harm the necessary
protection of sensitive sources of information such as informants.
It also reflects a proposal[28],
which we can support, to allow information to be used to prevent
'an immediate and serious threat to public security' and then
with the permission of the state providing the information for
it to be used in any subsequent criminal investigation.
"Following the meeting on 10 November the European
Scrutiny Committee of the House of Commons asked the Government
to confirm that it is content with the revised text of Article
13(6). The Government is content with the new text.
— Criminal and Civil Liability (Articles
14a and 14b)
"There have been no textual changes to these
articles, though they have been renumbered. Article 14a was previously
Article X and Article 14b was previously Article Y. There are
however a number of outstanding questions concerning these articles.
Lord Tordoff, Chairman of the House of Lords Select Committee
on the European Communities has asked why the Government considered
that primary legislation would be needed to give effect to Articles
42 and 43 of the Schengen Convention but not to the equivalent
provisions of the draft Mutual Assistance Convention. The Government
is very grateful to Lord Tordoff for bringing this issue to our
attention and has reconsidered the matter. Although one cannot
be sure exactly how in practice we will be expected to implement
the Schengen Convention and the Mutual Assistance Conventions
it is possible, although not certain, that primary legislation
may be needed to protect a foreign officer acting along with United
Kingdom officers, to the same extent that United Kingdom officers
are protected.
"Article 14b concerns the civil liability of
officers taking part in controlled deliveries, joint investigation
teams and covert investigations. Because of the specific provisions
in this Article governing compensation for damage caused by foreign
officers, the Government does not at this stage believe that legislation
would be needed to implement this provision. The equivalent provision
of the Schengen Convention (Article 43) has broader concerns however
and it may be that legislation will be considered necessary to
implement those provisions.
"Lord Tordoff also asked for clarification of
the practical arrangements by which an individual in the UK would
obtain redress from the Member State whose officials caused the
damage. Draft Article Y (now Article 14b) envisages a situation
in which damage caused to an individual in the UK by a foreign
official would be repaired by the authorities in the United Kingdom.
It would be up to the UK authorities to claim the money back from
the Member State whose officials caused the damage. There would
therefore be no need for an individual in the UK suffering damage
to a person or property to have to claim off the foreign Member
State.
"Finally he asked which rules would govern the
status and liability of third country officials taking part in
a joint investigation team. Third country officials, and those
of international organisations such as Europol would not be considered
to be officials of the Member State of Operation when in the United
Kingdom. Their status in this country would be that of ordinary
members of the public. They would have the same liability as other
members of the public...
— Data Protection
"There have been considerable
changes in this area. In return for support from Germany on interception
the United Kingdom agreed to support Germany at the JHA Council
on the desirability of a separate data protection provision in
the Mutual Legal Assistance Convention. The Government was not
required to support a specific text, such as that in document
[(b)] but rather a declaration that reads:
'The Council declares that
provisions relating to the protection of personal data which are
communicated pursuant to the application of this Convention are
necessary. These provisions will be included in a legal instrument
in a way which is in harmony with the results of ongoing horizontal
discussions regarding data protection in the Third Pillar. The
Council agrees that the Convention will be finally adopted at
the Council in March 2000.'
"The United Kingdom has always taken the line
that we do not oppose the inclusion of a data protection provision
in the Convention, though we would of course wish to ensure that
the detail in any proposal is acceptable to us. We can thus be
content with the declaration in [document (h)].
"In his letter of 11 November Lord Tordoff asked
a number of questions concerning document [(b)], which was a specific
text on data protection. As the Scrutiny Committees will note,
that text is no longer part of the draft Convention. The Government
can assure both Scrutiny Committees that it will seek the comments
of the Data Protection Registrar as soon as it receives any further
substantive texts."
4.5 In addition, the Minister updates us
on the minor changes in the text relating to interception of telecommunication
and on the provisions concerning the entry into force of the Convention,
and the mixed Committee (the latter Article lists the measures
building on the Schengen acquis).
Conclusion
4.6 It is a relief to be dealing with
a consolidated text once again and to feel that progress is at
last being made on this draft Convention. We make the following
points on specific provisions, beginning with those on which we
had questions outstanding.
4.7 When we first considered the data
protection provisions in document (b), we asked about the UK's
general position on the use of information for purposes other
than those for which it was sought, and requested to be kept in
touch with the progress of negotiations over the then Article
B, which needed clarification. Our sister Committee in the House
of Lords also raised questions on the provisions. The Minister
has clearly decided that, given the substitution of a declaration
for the earlier text, the questions need not be addressed directly.
For our part, we are content to let our question drop. We are
pleased that the Data Protection Registrar will be consulted on
any substantive texts and, more generally, that there are moves
towards greater consistency on data protection in the Third Pillar.
We are not clear, however, about the relationship between the
proposed "legal instrument" and the Convention itself.
Is the intention for the Convention to be approved before the
new instrument? If so, what will the scrutiny arrangements for
the new legal instrument be? We ask the Minister for more information
about the timing and status of the proposed measure.
4.8 In relation to our question on document
(c), we thank the Minister for clarifying that the Government
is content with the revised text in what is now Article 13 (6).
We note her answers to our sister Committee's questions on both
document (c) and (d).
4.9 We understand the reasons for the
opt-out for the UK and Ireland which allows for requests and communications
to them to be submitted via Central Authorities instead of directly
between judicial authorities. However, we agree with the Minister
that Article 6 (3) is "not in the best spirit of the Convention"
and that the clause allowing the application of reciprocity is
unhelpful. Given that the UK apparently intends to move towards
the direct transmission of requests (and has already agreed to
the principle in relation to the Schengen Convention), is Article
6 (3) still necessary? Information about the timing of the entry
into effect for the UK of the two measures and the timetable for
progress towards the direct transmission of requests would be
helpful in clarifying this matter for us.
4.10 We note from the EM that, in relation
both to the transmission of letters of request and to the liability
of officers, some problems have emerged for the UK owing to a
lack of "read across" from this draft instrument to
the Schengen Convention. Can the Minister assure us that procedures
are now in place to prevent any further problems of this kind
emerging — in relation, at least, to this draft Convention?
4.11 We are now in a position to clear
documents (a) - (g). However, as we understand that the draft
Convention remains under negotiation, we shall keep document (h)
— the latest consolidated text — under scrutiny
until we have the Minister's response to our questions, and further
information about progress.
27 In italics. Back
28 Paragraph
13(9)[c]. Back
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