DRAFT CONVENTION ON IMPROVING MUTUAL ASSISTANCE
IN CRIMINAL MATTERS
(21431)
9843/00
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Draft Convention on improving mutual assistance in criminal matters,
in particular in the area of combating organised crime, the laundering
of the proceeds of crime and financial crime.
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| Legal base:
| Article 34(2)(d) EU; consultation; unanimity
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| Forwarded to the Council:
| 20 June 2000 |
| Deposited in Parliament:
| 19 July 2000 |
| Department: |
Home Office |
| Basis of consideration:
| EM of 21 July 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared; further information requested
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Background
7.1 One month after the Convention on Mutual
Assistance in Criminal Matters[19]
was finally agreed (after three years of negotiations), this proposal
for a supplementary Convention, together with an Explanatory Note,
was produced by the French Presidency. It has already been discussed
once, at the JHA Council on 17 October. On that occasion, the
Council authorised its preparatory bodies to continue discussions
with a view to reaching a final agreement as soon as possible.
The document and the Government's views
7.2 The document has a particular focus
on combating organised and financial crime — one of the
Presidency's top priorities — and reflects several of the
Tampere Conclusions. In her Explanatory Memorandum, the Minister
of State at the Home Office (Mrs Barbara Roche) explains that
the measure is intended to improve speed and efficiency by removing
certain grounds on which Member States can currently refuse to
co-operate and by imposing some new formal obligations.
7.3 The Minister then outlines the content
of each of the Articles in the draft Convention, with comments
on the Government's view, as follows:
"Article 1
"This Article identifies those other international
legal instruments which the draft Convention is intended to supplement.
Six instruments are identified. The Article also provides that
the Convention will not affect existing multilateral or bilateral
arrangements which may be in force which contain 'more favourable'
provisions than are proposed in this draft instrument.
"Article 2
"This draft Article contains two related provisions.
These are that, as regards relations between EU Member States,
any reservations which Member States may have made under Article
5 of the 1959 Convention shall not be applicable. This is supplemented
by a further provision having the same effect as far as reservations
made under Article 51 of the Schengen Implementing Convention
are concerned. For Schengen signatories the latter provisions
have overtaken the former.
"Under the Schengen arrangements, conditions
which Member States can impose in respect of letters rogatory
for search and seizure are limited to: dual criminality (with
a minimum maximum sentence of at least six months imprisonment
(or equivalent) and the requirement that enforcement of the application
is consistent with the law of the requested party). The UK is
still considering the implications of this Article.
"Article 3
"This Article provides that Member States shall
not invoke provisions relating to confidentiality in relation
to banking and 'other commercial activities' in order to refuse
a request for mutual legal assistance. The UK has no difficulty
of principle with this requirement although clarification will
be needed as to what 'other commercial activities' means.
"Article 4
"This Article requires Member States to 'take
appropriate measures' to encourage the provision and securing
of documents, information and other data which may help establish
the existence of the proceeds of crime, and other details relating
to such proceeds. The Article also provides for the Council to
agree an implementing instrument, by qualified majority, to take
the necessary measures. The UK will seek to establish in more
detail the scope of this proposal, especially given the imprecision
in the phrase 'take appropriate measures'.
"Article 5
"This Article would impose an obligation on
a Member State to supply information to another Member State regarding
the bank accounts held by a person who is being prosecuted or
is under suspicion in the second Member State or the identification
of beneficiaries. The Article also requires that such assistance
shall extend to providing details of transactions in and out of
the accounts and contains supplementary provisions relating to
trusts and corporate entities.
"These are sweeping provisions and go beyond
what is at present possible. They will need careful consideration
both with regard to the issues of principle, such as confidentiality,
which they throw up and the practical problems likely to arise
in their implementation.
"Article 6
"This Article provides for the situation when
officials of a requested state who are carrying out a request
for mutual legal assistance discover certain matters, not covered
by the original request, which suggests that a supplementary request
should be made. The provision requires the requested state immediately
to so inform the requesting state. The UK sees no objections of
principle to this proposal but it will need further consideration,
especially as far as the absolute nature of the obligation is
concerned.
"Article 7
"This provides that mutual legal assistance
may not be refused solely on the grounds that the demand relates
to offences concerning taxes, customs and excise duties or foreign
exchange. It also provides that the provisions at Article 50 of
the Schengen Implementing Convention shall be repealed. That Article
provides inter alia that mutual legal assistance may be
refused in cases where the duty allegedly underpaid or evaded
does not exceed 25,000 euros or where the value of goods imported
or exported without authorisation does not exceed 100,000 euros.
In principle the UK sees no difficulties with these proposals.
"Article 8
"This Article lays down the general rule that
with regard to 'investigation of serious forms of organised crime
or money laundering' mutual assistance may only be refused on
the grounds that the demand is of such a nature 'which would affect
an essential interest of the petitioned state.' The Article goes
on to lay down a procedure for the resolution of any disputes
which might arise when requests are refused on these grounds.
"The Presidency has subsequently explained that
the first part of this Article relates only to the grounds for
refusal in the provisions in Article 2 of the 1959 Convention.
Those (political offences, fiscal offence, prejudice to national
security and public order) would be replaced by the new generic
text of prejudice to 'essential interests.' However this would
not remove any grounds for refusal (such as dual criminality)
which might be included in, and be applicable to, individual instruments.
"The UK will need to consider this Article carefully,
in particular the provisions relating to the resolution of disputes
between Member States and the relationship of these provisions
with those of the Treaty on European Union (as amended by the
Treaty of Amsterdam) relating to the jurisdiction of the European
Court of Justice.
"Article 9
"This Article provides that while 'taking account
of its own constitutional structures and national traditions'
each Member State shall set up multi-disciplinary teams in the
field of organised crime, in particular with regard to money laundering.
The UK has no difficulties of principle with these provisions,
such structures already exist.
"Article 10
"This Article provides that no reservations
may be entered in respect of the Convention.
"Articles 11, 12, 13 and 14
"[These Articles contain] procedural provisions...."
Conclusion
7.4 We are pleased to detect a degree
of caution in the Minister's comments on this draft measure. In
our view, the enthusiasm for improvement has led to a number of
sweeping and imprecise proposals which need careful consideration.
We are not convinced that a new initiative is appropriate before
there has been a chance for the recently-agreed Convention on
Mutual Assistance in Criminal Matters to be tested in practice.
7.5 We have three questions for the Minister
in relation to specific Articles in the proposal:
(i) Article
2: We note that the Government is considering the implications
of the Article for the UK. In our view, these would be significant
and we ask to be informed of the Government's eventual stance.
(ii) Article 4: We would
be grateful for the Minister's views on whether the envisaged
qualified majority procedure for adopting implementing measures
is consistent with Article 34 (2) (d) EU, which requires a two-thirds
majority of Contracting States for measures implementing conventions.
(iii) Article 5: We agree
with the Minister that these are "sweeping proposals",
and note with some concern that the Press Release following the
October JHA Council states that there was agreement to "pursue
discussions on the prompt provision of lists of bank accounts
of a person or entity and details of transactions through such
accounts." Again, we ask to be told the Government's eventual
stance on this Article.
7.6 On a more general point, we ask whether
the Minister is content for the reservations made by Member
States (some of which may have been required by national parliaments
as a condition of ratification of international legal instruments)
to be rendered inapplicable as between themselves. We have in
mind particularly the provisions in Articles 2 and 8.
7.7 We note that the scope of some of
the Articles (for example, 2, 5 and 6) is not limited to financial
crime. Does the Minister consider that some such limitation would
be appropriate?
7.8 Finally, we are surprised that the
document contains no provisions about data protection. Can the
Minister reassure us that this omission will be rectified?
7.9 We will keep the document under scrutiny
until we have the Minister's response.
19 (21233) 7846/00; see HC 23-xix (1999-2000), paragraph
14 (24 May 2000). Back
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