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.
ARTICLE 9(9)—HEARINGS
BY VIDEO
LINK
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?
ROLE OF
THE JUDICIAL
AUTHORITIES IN
TELEPHONE CONFERENCES
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?
JURISDICTION OF
THE COURT
OF JUSTICE
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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