Select Committee on European Union Twelfth Report

Letter from Lord Tordoff to Kate Hoey MP

  Sub-Committee E considered the latest version of the draft Convention and your Supplementary Explanatory Memoranda of 15 January and 25 February at its meeting on 3 March. You will recall that the Committee wrote on 3 December asking you to clarify the Government's position on the interception provisions of the Convention, and in particular, Article 13. The Committee is retaining the Convention under scrutiny pending your response. It reserves the right to take up any additional points which might arise from your reply.

  Your Supplementary Explanatory Memoranda describe both the substantive additions to the present draft Convention and further changes proposed by the German Presidency. These changes could broaden the scope of the Convention significantly. The Committee welcomes your commitment to keep it informed of progress. It also expects to have early sight of any new draft texts. The Committee wishes to emphasise the importance of seeing a fully consolidated text of the Convention at the earliest opportunity so that possible conflicts between draft Articles or textual inconsistencies can be discerned more easily.

  The Committee would be grateful for your response to a number of questions raised by your Supplementary Explanatory Memoranda and accompanying texts.


  The Committee questions whether the addition of a final paragraph is the most appropriate way to effect an extension of the scope of Article 9. Although the position of an "accused" person differs significantly from that of a witness or expert, Article 9(9) does not attempt to set out basic safeguards. These are implied by reference to fundamental principles of national law and the requirements of the European Convention on Human Rights and other relevant international law instruments. Is the Government satisfied that Article 9(9), as presently drafted, provides adequate safeguards for the protection of the rights of the accused? How "necessary" is it, in your view, for the Council to adopt legally binding rules setting out the content of those rights?

  Can you also explain whether there is a common understanding of the term "accused" for the purposes of Article 9(9), and describe the type of circumstances in which the facility for hearing an accused person by video link might be used?

  The Committee notes that there is provision for opting-out of Article 9(9). You do not indicate whether the Government intends to do so. What factors will you take into account in reaching a decision? If the UK opts out, would Parliament be consulted on a decision to withdraw that opt-out at a later date?


  The Committee notes that, under Article XX, telephone conferences must comply with "fundamental principles" of the requested Member State's domestic law. The Government opposes involvement of UK judicial authorities in the conduct of such hearings and suggests that police officers could perform the tasks required by this Article. Can you explain how the Government intends to ensure compliance with "fundamental principles" without involving UK judicial authorities?


  The Committee recommended in its Report on the draft Convention (14th Report 1997-98) that the Court should have full jurisdiction to ensure consistent interpretation and application throughout the EU. You state that the Government will only decide whether to grant the Court jurisdiction "when the current negotiations on the substantive provisions, and in particular, on interception, have been completed".

  Under Article 15a of the Convention, the Court will have jurisdiction in accordance with the new arrangements for Third Pillar instruments agreed at Amsterdam and reflected in Article 35 of the revised Treaty on European Union. This precludes the possibility of an ad hoc jurisdiction extending only to the Convention. Your first Supplementary Explanatory Memorandum seems to suggest that the Government's criteria for reaching a decision on the Court's jurisdiction relate solely to the present Convention. The Committee accepts that the Convention is a relevant factor but would expect a broader range of criteria to apply, including the principle that laws should be interpreted and applied consistently in all Member States. What criteria does the Government have in mind in deciding whether to accept (on a once and for all basis) the Court's jurisdiction in relation to this and other Third Pillar instruments?

  The Committee looks forward to receiving your reply to these points and to those raised in its letter of 3 December.

4 March 1999

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