Select Committee on European Union Twelfth Report


18 July 2000

By the Select Committee appointed to consider European Union documents and other matters relating to the European Union.




1. There can be no doubting the political commitment to agree the Convention on Mutual Assistance in Criminal Matters. The European Council has, since 1996, urged its rapid conclusion. Justice and Home Affairs Ministers adopted the final text in May this year. The purpose of the Convention is to "supplement the provisions and facilitate the application" between EU Member States of existing international instruments on mutual assistance in criminal matters, in particular a Council of Europe Convention dating back to 1959[1]. This description would suggest that the draft Convention is primarily a technical measure to improve judicial co-operation within the EU, building on an established Council of Europe framework. But the political impetus for the draft Convention is now rooted in the fight against organised crime across the Union. By improving mutual legal assistance not just between judicial authorities but also between police or customs authorities, the Convention would be "of capital importance in the fight against organised crime"[2].

2. An early draft of the Convention was the subject of a detailed inquiry (conducted by Sub-Committee E under the chairmanship of Lord Hoffmann). We recognised in our Report, Mutual Assistance in Criminal Matters[3], that there was a need to modify and update the existing framework for mutual assistance to ensure that Member States were better equipped to tackle organised crime. A difficult and delicate balance would have to be struck between the promotion of faster and more efficient mutual assistance, on the one hand, and the protection of fundamental rights, on the other. Adequate safeguards against an unwarranted invasion of privacy would be of particular importance in the provisions of the Convention permitting interception of telecommunications systems.

3. The expectation was that the UK would secure an agreed text by the end of its Presidency (June 1998). In the event, no agreement was reached. There has, since then, been a proliferation of texts proposing amendments or additions to the Convention. Many of these changes reflect the significance of the Convention as a key instrument in the fight against organised crime. As the potential for cross-border criminal activity and use of advanced technology has increased, so too has the temptation to extend the scope of the Convention to keep pace. There are new provisions on the interception of telecommunications via a satellite network provider and on cross-border interception in cases that do not require the technical assistance of another Member State. There are also new Articles on the establishment of joint investigation teams, including rules on the civil and criminal liability of officials from one Member State participating in a criminal investigation in another Member State. Such provisions, designed to enhance police co-operation rather than, simply, to improve judicial co-operation, raise delicate civil liberties issues[4].

4. Successive versions of the draft Convention have been deposited for scrutiny and considered by Sub-Committee E (now chaired by Lord Hope of Craighead). The membership of the Committee is listed in Appendix 1. It is usual for letters to Ministers expressing views on proposals under scrutiny to be published in the Committee's Report, Correspondence with Ministers. However, given our sustained interest in the Convention, its political and legal significance, and the volume of correspondence it has generated since we last reported on it in 1998, we considered that it would be appropriate to publish our correspondence and other relevant documents in this separate Report. Appendix 3, which contains this material, forms the bulk of the Report. The correspondence is peppered with references to successive revised texts which are too numerous and lengthy to reproduce here. We have decided only to publish the final version of the Convention which was adopted by the Council and signed by all the Member States on 29 May. The text of the Convention can be found at Appendix 2.

5. There have been two significant developments since we published our 1998 Report. The first is the entry into force, on 1 May 1999, of the Amsterdam Treaty establishing the creation of "an area of freedom, security and justice" as a key objective of the Union. The second is the agreement reached at a special meeting of the European Council in October 1999 on the "Tampere Milestones". These express a commitment to "freedom based on human rights, democratic institutions and the rule of law". The European Council continued:

    "People have a right to expect the Union to address the threat to their freedom and legal rights posed by serious crime. To counter these threats a common effort is needed to prevent and fight crime and criminal organisations throughout the Union. The joint mobilisation of police and judicial resources is needed to guarantee that there is no hiding place for criminals or the proceeds of crime within the Union".

Development of the area of freedom, security and justice "should be based on the principles of transparency and democratic control"[5].

6. The principles enunciated by the European Council at Tampere have been reflected in our approach to the substantial changes in the content and scope of the Convention since 1998. Throughout the long period of scrutiny, we have tried to weigh the undoubted gains of enhanced cross-border co-operation in detecting and prosecuting crimes against the adequacy of the safeguards for protecting individual rights. Respect for the principles of transparency and democratic control is essential if, as we believe they should, national parliaments are to perform an effective scrutiny function. Encouraging greater involvement in the activities of the European Union and enhancing the ability of national parliaments to express their views on matters of particular interest to them is the objective of a special Protocol annexed to the EU Treaties[6]. The Government has endeavoured to keep the Committee informed of developments and to provide the latest documents. We are most grateful for the efforts made by the Minister and her officials. Notwithstanding, we feel compelled to express our dissatisfaction with attempts by the Council, particularly in the latter stages of the negotiation, to secure political agreement on texts which are incomplete and ill-prepared. On occasion, the depositing of important documents shortly before meetings of the Justice and Home Affairs Council has seriously hampered our work. We believe that the Member States collectively could, and should, do more to implement the spirit of the Protocol. We welcome the Minister's undertaking to raise the matter with the Council Secretariat.

7. The Convention raises many complex and sensitive issues. Our purpose, in this Report, is not to go over ground that we covered in 1998, but to highlight the key changes since then. In Part 2, we identify our main concerns and briefly describe the Government's response. It is necessary to refer to our correspondence with the Minister for detailed comment. The relevant cross-references are given in a box after each section. In summary, while the Committee recognises that there is much to welcome in the Convention, in some areas, notably interception and data protection, we are not convinced that the right balance has been struck between the interests of Member States in improving mutual assistance and the rights of the individual. We urge the Government to take account of the misgivings we express in this Report and ensure that some, at least, are addressed in the Explanatory Report which is to accompany the Convention.

1   European Convention on Mutual Assistance in Criminal Matters 1959, supplemented by an Additional Protocol 1978. Article 26(3) of the 1959 Convention provides that Contracting Parties "may conclude between themselves bilateral or multilateral agreements on mutual assistance in criminal matters only in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein".  Back

2   Statement by Justice and Home Affairs Ministers in September 1998. Back

3   14th Report 1997-98, HL Paper 72. Back

4   A separate, but related, development is the integration of the Schengen acquis within the legal framework of the EU. Some of the provisions of the Mutual Assistance Convention are modelled on the Schengen acquis as incorporated by the Amsterdam Treaty, others amend or supplement it. The UK intends to participate in those parts of the Schengen acquis concerned with police co-operation and mutual assistance in criminal matters. An important aspect of our scrutiny has therefore been to ensure that there is no conflict between the obligations to be assumed by the UK in implementing the Schengen acquis and those arising under the Convention. For more information on Schengen, see our Report, UK Participation in the Schengen Acquis, 5th Report 1999-2000, HL Paper 34. Back

5   Paragraphs 6 and 7 of the Presidency Conclusions of the Tampere Summit. Preparations for the Summit are the subject of our Report, Prospects for the Tampere Special European Council, 19th Report 1998-99, HL Paper 101. Back

6   Protocol on the Role of National Parliaments in the European Union, annexed to the EC Treaties and the Treaty on European Union. Back

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