Letter from Kate Hoey MP to Lord Tordoff
I am writing to provide a full response to the
points made in your letter of 3 December 1998 about the latest
proposals on the interception provisions in the draft Mutual Legal
Assistance Convention.
APPLICATION OF
THE CONVENTION
TO SECURITY
AND INTELLIGENCE
AGENCIES
You asked for further information about why
we do not consider it appropriate for the Convention to apply
to the security and intelligence agencies when they are acting
"in connection with a criminal investigation".
In general, mutual legal assistance is used
for the purpose of "procuring evidence . . . for proceedings
in respect of offences the punishment of which, at the time of
the request for assistance, falls within the jurisdiction of the
judicial authorities of the requesting Party" (Articles 1(1)
and 3(1) of the European Convention on Mutual Assistance in Criminal
Matters of 20 April 1959). To most other Member States, this is
what is meant by "in the framework of a criminal investigation".
It is clear to them that the interception provisions do not apply
to intelligence gathering outside this framework (eg interceptions
carried out by security and intelligence agencies under administrative
authority solely for intelligence purposes). In the UK, however,
we do not have judicially authorised interceptions and do not
carry out interceptions for evidential purposes. Instead, all
interception warrants issued by the Secretary of State are for
intelligence purposes only.
We have negotiated Article 12 on the basis that
there should be no requirement for the interception to be "for
the purpose of procuring evidence". "for the purpose
of procuring evidence". This was to enable the UK's police
and customs authorities to co-operate on interception matters
for their criminal investigations even though there is a statutory
prohibition on the use of intercept material in evidence. As presently
drafted, however, Article 13 would be interpreted in the UK as
applying not only to interceptions carried out by police and customs
authorities, but also when the security and intelligence agencies
are tasked to gather intelligence on serious crime. Given that
there is no definition of serious crime in the Convention, there
is also a danger that this would apply to intelligence gathering
for national security purposes where this involves a criminal
element (eg counter-terrorism).
Our main concern is to safeguard the operational
effectiveness of those agencies whose main function is the protection
of national security (for example, in 1997-98 the Security Service
deployed only 5 per cent of its resources on serious crime work).
The purpose of giving the agencies a statutory remit to work in
support of law enforcement against serious crime was to enable
them to bring to bear their particular expertise and resources
for gathering intelligence on serious crime. This intelligence
is passed to police and customs authorities to help them gather
evidence of serious criminal offences and to bring the perpetrators
to justice.
Our security and intelligence agencies depend,
to a great extent, on the use of techniques and capabilities which
must be kept secret in order to preserve their effectiveness.
The agencies, therefore, deploy against their criminal targets
the same kinds of sensitive techniques which they use, for example,
against terrorists and other threats to national security. Their
operations, and their operational methods, could be jeopardised
if they were subject to the disclosure requirements in Article
13 of the draft Convention. This, in turn, could damage the effectiveness
of the UK's response to serious threats to its own citizens (eg
drug trafficking, organised crime etc).
The UK is therefore negotiating on the basis
that the Convention should apply to criminal investigations carried
out by police and customs authorities (the UK equivalent of the
position in other Member States), and not to intelligence gathering
operations carried out by security and intelligence agencies.
Article 13(5)
Your letter rightly points out that Article
13(5) would go a considerable way towards meeting our concerns.
In fact, it is a UK proposal. It is based on Article 2(b) of the
1959 Convention on Mutual Legal Assistance which states that "assistance
may be refused if the requested Party considers that execution
of the request is likely to prejudice the sovereignty, security,
ordre public or other essential interests of its country".
Unfortunately, Article 13(5) does not have the support of most
other Member States.
ADDITIONAL BURDENS
ON LAW
ENFORCEMENT AGENCIES
You ask for an explanation as to why the notification
requirement would be bureaucratic and burdensome. Unfortunately
we are unable to produce figures relating to the number of occasions
on which the police or customs might be obliged to notify another
Member State of interception of a target on its territory. But
we can confirm that a significant proportion of targets—usually
involved in drug trafficking—move regularly between the
UK and other Member States. From time to time, intercept product
will be received when the target is connected to the UK national
network even though he/she is on the territory of another Member
State (including territorial waters). It is difficult to know
whether this will become more common in the future. However, it
is important that the operational effectiveness of law enforcement
agencies is not hindered by unnecessary complications at the crucial
stage of an investigation when a drug trafficker enters the country.
Under the UK's proposal, the formal requirement
to notify would not apply where the target is on the territory
of another Member State for less than 24 hours. This would ensure
that the scrutiny of notifications is concentrated on cases where
the target is on the territory of another Member State for a reasonable
period of time and is not simply passing through. Notification
for a period of less than 24 hours would provide very little protection
for the individual since the visited Member State would be unable
to react quickly enough to make the notification worthwhile.
It is also worth comparing the proposed regime
for interception with the approach in other areas of law enforcement
work where the subject of a criminal investigation is on the territory
of another Member State. In such cases, the police and Customs
and Excise can apply for a court order to obtain bank statements,
credit card details and other personal information held in the
UK without involving the Member State in which the subject is
located.
RESOURCE IMPLICATIONS
OF SATELLITE
INTERCEPTION
In response to your question about the resource
implications for satellite operators, our understanding is that
Iridium has met the initial infrastructure costs of providing
an interception facility. Indeed, we believe that some Member
States require telecommunications operators to provide an interception
facility as part of the standard licensing conditions in their
domestic legislation. We are reviewing how to deal with the cost
implications of interception in the UK as part of the Government's
wider review of interception legislation. A consultation document
will be published in due course.
Finally, you will wish to note that we do not
expect a substantive discussion of these issues at the Justice
and Home Affairs Council on 12 March. I am submitting separately
an Explanatory Memorandum on JUSTPEN 7 (6195/99) which deals only
with the service provider solution.
I hope this is helpful. I am copying this letter
to Jimmy Hood (Chairman of the House of Commons European Scrutiny
Committee), Chris Mullin (Chairman of the Home Affairs Select
Committee) and Tom King (Chairman of the Intelligence and Security
Committee).
3 March 1999
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