TWELFTH REPORT
18 July 2000
By the Select Committee appointed to consider European
Union documents and other matters relating to the European Union.
ORDERED TO
REPORT
CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL
MATTERS BETWEEN THE MEMBER STATES OF THE EUROPEAN UNION - THE
FINAL STAGES
PART 1: INTRODUCTION AND BACKGROUND
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
|
