Joint Committee On Human Rights Seventh Report

5.Letter from Lord Filkin, Parliamentary Under Secretary of State,

Home Office, to the Chairman


I am writing to reply to the points raised in the Committee's report in respect of the Crime (International Co-operation) Bill.

Customer Information Orders and Account Monitoring Orders

The Committee considered that there is a need for additional safeguards in the Bill in order to ensure compatibility with ECHR Article 8.

It recommended:

There should be an express requirement for the applicant to disclose to the judge information relevant to the application, including the information which weakens the case for the order, except for information about the identity of confidential sources and information that would endanger lives or national security.

We could not impose such a requirement. The applicant—a police or customs officer (or in Scotland a procurator fiscal)—is acting on behalf of the overseas authority making the request. The request will include the information required by the Protocol and the applicant can clearly only disclose such information as they have in their possession. While the applicant must be able to satisfy the judge of the matters set out in clauses 33, 36, 38 and 41 they cannot, and should not have to ,go back to the requesting authority to seek additional information. It would set an undesirable precedent for mutual legal assistance more generally, and it would not be in accordance with our obligations under the Protocol. The Secretary of State is responsible for ensuring that the request contains sufficient information for the judge to be satisfied of these matters and for ensuring that it meets the requirements set out in the Protocol. If he considers that the request is deficient and is lacking relevant information, he will ask the requesting authority to provide additional information before directing a police or customs officer to apply for the order.

I should clarify that, as these are mutual legal assistance requests they are made by judicial authorities, not by police officers. The request will have been through the judicial process in the requesting state when it arrives here. Police (and customs) officers here will apply for such orders for consistency with domestic practice for mutual legal assistance generally and in line with the Proceeds of Crime Act. Unlike under POCA, the UK is not the investigator here, we are merely acting on behalf of another country.

In mutual legal assistance it is well established that a request is considered purely on the basis of the information provided in the request, so long as this is sufficient to establish that the requirements for providing that particular type of assistance are met. In this case, these are clearly set out in the Protocol. There is no requirement for the requesting authority to provide all of the facts of the overseas investigation. It is not required in relation to requests for search of premises, nor for production orders to produce bank records (a frequently requested form of mutual legal assistance already provided by the UK in relation to information on identified accounts) and we do not consider it necessary or helpful to make completely different requirements in relation to requests to trace and monitor bank accounts.

There should be an express requirement for judges to include among the terms of a customer information order or an account monitoring order any restrictions which the judge thinks necessary to ensure that action under the order would be compatible with ECHR Article 8.2.

The general wording used in clause 32(7) (and clauses 35(6), 37(7), and 40(6)) will not override the rule of construction that the Human Rights Act, and the ECHR rights, apply. General words such as these do not have the effect that a court would have to act incompatibly with ECHR rights under section 6(2)(b) of the Human Rights Act. This is the same for the relevant provisions of the Proceeds of Crime Act which these clauses in this Bill mirror. (In that Act, there is only one express reference to the HRA, in Section 266(3)(b), and this is because a court is under an unconditional duty to make an order for civil recovery under that Part of that Act).

Our position is supported by the House of Lords judgment in R (on the application of Morgan Grenfell & Co Ltd) v. Special Commissioner of Income Tax) [2002] 3 All ER 1 that courts would ordinarily construe general words in a statute as not having been intended to have some startling or unreasonable consequence, such as overriding a fundamental human right like, in this judgment, legal professional privilege. An intention to override such rights must be expressly stated or appear by necessary implication. In the judgment, reference was made to safeguards in the relevant legislation—if, despite such safeguards, ECHR rights are not displaced, there is an even stronger case that they will not be displaced where the legislation uses general words alone, such as in this Bill.

As to the specific recommendation to require judges to include any restrictions necessary to ensure action taken is compatible with the ECHR, we consider this unnecessary. A financial institution is not a public authority, so is not bound to act compatibly with the Convention rights. However, it is obliged to act in compliance with the order. The order itself must be compliant with Convention rights, as it is made by a judge. The financial institution should only be under the obligations and requirements imposed by the customer information or account monitoring order and must act in accordance with it. It should not have to make an assessment of compatibility with Convention rights, which is the responsibility of the judge and the Secretary of State.

Furthermore, we do not know what restrictions the Committee had in mind to ensure disclosure is "necessary in a democratic society". Customer information is defined by reference to the Proceeds of Crime Act; account monitoring orders are defined in this Bill. Ultimately, if, even following a direction from the Secretary of State, the judge decides that disclosure of that information would not be in accordance with ECHR, he will not make the order at all.

Clause 82: Cross border surveillance

Paragraphs 16-24 of the Committee's Report deal with cross border surveillance by police officers from other jurisdictions. These provisions are to be inserted into the Regulation of Investigatory Powers Act 2000 by clause 82 of the Bill. It will provide for automatic authorisation of urgent cross border surveillance of up to five hours. One of the preconditions that the new section 76A requires to be satisfied is that the surveillance is lawful in the State from which it comes. In earlier correspondence I stated that:

'As all Schengen States are signatures to the ECHR, surveillance, in order to be lawful in any of those States, would have to be proportionate under the ECHR".

The Committee concludes in paragraph 22 of its Report that it does not accept this analysis. Its reasons are set out in paragraphs 18-21. In paragraph 18 the Committee states that my earlier comment assumes that in all the Schengen States the ECHR is incorporated into national law. The Committee suggests that this is incorrect and gives the Republic of Ireland as an example of a State that has not incorporated the ECHR. I should clarify that Ireland is not signed up to Article 40 of the Schengen provisions. It is our understanding that each of the States, which will be taking part in Article 40, has incorporated the ECHR into their domestic law.

The Joint Committee then goes on to state in paragraphs 19 and 20 that even if a State has incorporated the ECHR into domestic law that does not necessarily mean that the lawfulness of police conduct in those States will depend on it being compatible with Convention rights. I can see the force of this argument in theory; however I would make two further observations. First, it is the Government's view that when considering matters of this nature we are entitled to assume that our European partners do in practice act in accordance with their international obligations including the ECHR. As part of that we consider it fair to assume that the domestic law in these States does deliver human rights compliance by their law enforcement bodies. Second, whilst we note the point the Committee makes about derogations, what is being considered here is surveillance of a person who has been suspected of a limited range of serious criminal offences, that will not involve entering into private homes or place inaccessible to the public. As evidenced by its cross border nature, this form of surveillance is mainly going to involve following the suspect along public highways or on public transport. I think it extremely unlikely that any Schengen State would make specific provision to derogate from the ECHR in respect of such cases. Accordingly, in practice I remain of the view that a pre condition of lawfulness abroad will mean that this type of surveillance will be proportionate under the ECHR.

Paragraph 21 of the Report goes on to say that States do not have responsibility under the ECHR for the extra-territorial action of their officials. However, as the nature of the surveillance to be undertaken in the United Kingdom will be substantially the same as that which is undertaken in the state from which it originates, it seems to us that if the surveillance was proportionate in the originating state, it should continue to be proportionate after entering the UK. Furthermore, as the Report sets out, the foreign officers will be required to contact the UK authorities when they enter the UK and at any time those authorities will be able to order the surveillance to cease. I should add that in our view once foreign officers are undertaking surveillance in the United Kingdom under the authorisation found in new section 76A they will be public authorities under the Human Rights Act 1998. Accordingly, any member of the public who is concerned about such surveillance could challenge it if he so wished.

We note the conclusions found at the end of paragraph 24 about whether it is possible to place any of these safeguards on the face of the Bill. Having considered the points you raised, and the points raised by the Lords in Grand Committee, we propose making two amendments on Report. The first will place on the face of the Bill a requirement that the foreign officers must contact a UK officer immediately on arrival in the UK. Second we propose putting on the face of the Bill a provision making the lawfulness of the surveillance conditional on the foreign officers not entering private homes and places inaccessible to the public. We hope this goes someway to meeting the concerns you have raised.

I hope that the Committee finds this further explanation of our position in respect of these two key areas of the Bill helpful. I should like to take this opportunity to thank the Committee for their helpful comments in respect of the provisions to allow for the mutual recognition of terrorist assets.

18 February 2003

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