Select Committee on European Union Twelfth Report

Letter from Lord Tordoff to Kate Hoey MP

  Thank you for your letter of 30 November enclosing a copy of the latest text of the Convention (JUSTPEN 108). I am grateful for your detailed explanation of the Government's current position. Your concern as to the potential scope of the Convention is a significant development and I have referred the matter to Sub-Committee E for further consideration. I anticipate that they will wish to seek evidence from outside bodies and I will be writing to you again in the light of their views. It would, however, assist the Committee if you could clarify some preliminary points arising from your letter.

  You describe a "fault line" running between the UK and other Member States as regards their domestic regulation of interception. The Convention provisions on interception would only apply in the context of a criminal investigation. You suggest that this limitation would have the effect of removing from the scope of the Convention the activities of the security and intelligence services in other Member States but not in the UK. This is because UK legislation on interception and the procedures for obtaining a warrant apply equally to the law enforcement, security and intelligence agencies. However, you state in your letter that the Security Service may obtain a warrant on the grounds of national security or to support the law enforcement agencies in the prevention and detection of serious crime. It would seem, then, that it is possible to distinguish between interception in connection with a criminal investigation (the subject of the Convention) and interception on other grounds. Such a distinction appears to be made in the UK legislation setting out the grounds on which a warrant may be obtained (section 2 of the Interception of Telecommunications Act 1985 and sections 1(2) and 5 of the Intelligence Services Act 1994). I would be grateful if you could clarify why, as a matter of practice and of principle, you do not consider it appropriate for the procedures and safeguards in the Convention to apply to the security and intelligence agencies when they are acting "in connection with a criminal investigation" (the Convention language) or, in the terms of our own legislation, "in support of the prevention or detection of serious crime".

  You are also seeking an exemption from the obligation in Article 13 to notify where, for example, an interception is taking place on a network in the UK but the target of the interception is in another Member State for less than 24 hours. It would be helpful if you could explain why you consider this notification requirement to be bureaucratic and burdensome. In particular, how often do you think that you would have to notify and would the information to be notified exceed that contained in the application for a warrant? By how much would the 24-hour threshold reduce the number of notifiable cases?

  The purpose of the notification requirement in Article 13 is to allow the State in which the target is present to oppose or interrupt interception if this would contravene fundamental principles of its national law. This would seem, at first glance, to be a legitimate safeguard. Does the Government not agree that even in cases where the technical assistance of another State is not required, that State has an interest in ensuring that there is no breach of fundamental rights, such as respect for privacy, on its territory?

  Under Article 13(5) of the Convention, the duty to notify does not apply if it might prejudice the "security, ordre public or other essential interests" of the intercepting State. Why is this not sufficient to meet the UK's concerns expressed in your letter and the Introduction to JUSTPEN 108?

  Finally, the point made in my letter of 29 October as to the resource implications of the service provider solution in the case of satellite communications is not fully addressed by Article 14 of the Convention. This only refers to the costs of complying with a specific request for interception. The broader issue is who will bear the costs for establishing the technical infrastructure to permit interception via the service provider. You state that "you do not anticipate that the Iridium solution will have significant resource implications for the UK". Does this mean that Iridium will bear all the initial infrastructure costs and, if so, will these be part of the charges recoverable by Iridium from intercepting States under Article 14?

  My Office has also raised with your officials the document referred to as ENFOPOL 98 of 3 September which has been brought to our attention and is available in German on the Internet. No doubt you will wish to consider whether this should be submitted for scrutiny or otherwise brought to the attention of both Houses.

  I am copying this letter to Jimmy Hood (Chairman of the Commons European Scrutiny Committee), Chris Mullin (Chairman of the Home Affairs Select Committee) and Tom King (Chairman of the Intelligence and Security Committee).

3 December 1998

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