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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