Letter from Lord Tordoff to Kate Hoey
MP
Thank you for your letters of 3 and 22 March
concerning the interception provisions in the draft Mutual Assistance
Convention and new draft texts on hearings by video link, telephone
conferences and the jurisdiction of the European Court of Justice.
Sub-Committee E (Law and Institutions) considered your responses
on these issues at its meeting on 5 May. The Committee also examined
three documents deposited for scrutiny. The first, JUSTPEN 7,
contains further information on the application of the "remote"
approach to interception. The second, JUSTPEN 13, proposes a new
draft Article on joint investigation teams. The third, JUSTPEN
21, recommends including in the Convention a new Article to encourage
Member States to lift any existing reservations or declarations
to the 1959 Council of Europe Convention on Mutual Assistance
and the Additional Protocol 1978.
The Committee continues to take a keen interest
in the Convention and notes that the German Presidency intends
to seek a political agreement at the Justice and Home Affairs
Council on 27-28 May. The proliferation of new or amended texts
at such a late stage in the negotiation is worrying. The Committee
wishes to re-iterate the importance of providing a revised and
consolidated text, if at all possible, in good time before the
May Council. There are, in the meantime, a number of points on
which the Committee would be grateful for clarification.
REMOTE INTERCEPTION
The Committee notes that the Government supports
remote interception but opposes the application of the interception
provisions to the security and intelligence services, even when
they are acting in the framework of a criminal investigation.
One consequence of their exclusion is that the safeguards in the
Convention for interceptions by police or customs officials will
not apply to interceptions by the security services acting in
support of law enforcement agencies in the prevention and detection
of serious crime. As you point out in your letter, only 5 per
cent of the resources of the Security Service are deployed on
serious crime work. Most of their operations would be unaffected
by the Convention. It seems anomalous that the choice of agency
to carry out an interception, rather than the purpose for which
it is effected, should dictate the level of safeguards available.
You express a further concern that the operations
and operational methods of the security and intelligence services
could be jeopardised if they were subject to the disclosure requirements
in Article 13 of the draft Convention. Article 13 would only apply
where the security services were carrying out interceptions "for
the purpose of a criminal investigation". The disclosure
requirements in Article 13(2)(a) and (b), which concern lawful
authority for an interception, appear to be essentially procedural
in nature. The requirements in Article 13(2)(c)-(e) relate more
specifically to the target and purpose of the interception and
its likely duration. The Committee would find it useful if you
could explain which of these requirements would necessitate disclosure
of sensitive techniques and operational methods.
The Committee notes your explanation of the
grounds on which the UK is seeking an exemption from a requirement
to notify another Member State of an interception taking place
on a UK network if the target is only present in that State for
less than 24 hours. The 24 hour threshold proposed by the UK appears
to be somewhat arbitrary. The fact that the visited State may
not react within that period does not seem, to the Committee,
to be a sufficient justification for the removal of any safeguard
under the laws of that State.
There are two other points of concern arising
from your letter. First, you explained that the UK was negotiating
on the basis that there would not be a requirement, in Article
12, for interception to be "for the purpose of procuring
evidence". UK police and customs cannot intercept for this
purpose since there is a statutory prohibition on the use of intercept
material as evidence in UK courts. The Committee wondered whether
this might raise a problem in relation to incoming requests for
assistance from Member States that do not have a similar bar.
Would the Convention permit UK authorities to make their consent
to a request to assist in an interception subject to the condition
that the intercepted material could not be used as evidence?
The second point concerns the resource implications
of the "service provider solution". You have stated
that Iridium has met the initial infrastructure costs of providing
an interception facility. Might there be on-going expenditure
when law enforcement agencies use the remote facility provided
by the national service provider? The Committee is concerned that
the Government appears willing to sign up to this part of the
Convention in ignorance of the likely costs.
JUSTPEN 7THE
ROLE OF
THE MEMBER
STATE HOSTING
A SATELLITE
GROUND STATION
The Committee notes the Government's position
that the Member State hosting a satellite ground station does
not have a substantive role in remote access to telecommunications
via a national service provider where the target is on the territory
of the intercepting Member State. The Committee accepts that,
in cases of remote interception, the ground station provides a
purely technical facility and that the intercepting Member State
bears the legal responsibility for interceptions carried out against
targets on its territory. It may not, the Committee agrees, be
appropriate for the host State to have a substantive role in each
and every interception. But the Committee does not rule out the
possibility that, were a ground station to be located within the
UK at some future time, the UK might wish to exercise supervision
and control over any use prejudicial to the interests of the UK
or its citizens. The Committee invites the Government to give
further consideration to the question as to whether the Convention
should expressly recognise that a host State has a continuing
interest in the use made of a facility situated within
its territory.
HEARINGS BY
VIDEO LINK,
TELEPHONE CONFERENCES,
AND THE
JURISDICTION OF
THE COURT
OF JUSTICE
The Committee notes the position taken by the
Government with regard to the jurisdiction of the Court of Justice
and is grateful for your explanation of new draft Articles on
hearings by video link and by telephone conferences. The Committee
considers that the scope and application of the provisions on
taking evidence from an accused person by live video link and
the concept of "fundamental principles of law" in relation
to telephone conferences remain uncertain. Although it seems that
the Government does not intend to admit evidence directly into
proceedings in the UK by telephone conference, UK authorities
would be prepared to assist other Member States with requests
for evidence by telephone if the witness was genuinely willing
to co-operate. The Committee would welcome clarification of the
principles of law that the Home Secretary or Lord Advocate might
consider to be "fundamental" in considering such a request
for assistance.
JUSTPEN 13JOINT
INVESTIGATION TEAMS
Your Explanatory Memorandum does not address
the main substantive change to the original text which is reflected
in the Room Document. This concerns the provision for "officials
of international organisations or bodies" to be part of a
joint investigation team. The Committee has raised with you, in
its letter of 19 April, the question of Europol participation
in police operations in the context of a draft Joint Action on
combating international crime with fuller cover of the routes
used (document 14060/98). We would welcome further clarification
of the Government's policy on Europol involvement in operational
activity on the territory of the Member States. Is the purpose
of the amended text to provide a role for Europol in cross-border
investigations and, if so, what conditions will apply to officials
of international organisations or bodies participating in joint
investigation teams?
The Committee notes the similarity between the
amended text in the Room Document and Article 24 of the "Naples
II" Convention on Mutual Assistance and Co-operation between
Customs Administrations adopted on 18 December 1997. Article 24
of that Convention enables the authorities of several Member States
to set up joint special investigation teams "comprising officers
with the relevant specialisations" to investigate specific
infringements of customs rules. Under Naples, the participating
officers are bound by the law of the Member State in whose territory
the team is operating and have no powers of intervention in that
State. Customs officers may also participate in joint investigation
teams set up under the draft Mutual Assistance Convention. There
is provision for officers seconded to these teams to take "criminal
procedural steps". The extent and nature of such steps would
have to be agreed between the seconding State and the State in
which the joint investigation team was operating. The Committee
would be grateful for clarification of the relationship between
the amended text in the draft Mutual Assistance Convention and
Article 24 of the Naples Convention, particularly as regards the
powers of intervention of customs officers.
JUSTPEN 21LIFTING
RESERVATIONS TO
THE 1959 COUNCIL
OF EUROPE
CONVENTION ON
MUTUAL ASSISTANCE
The Committee welcomes your undertaking to keep
it informed of any decision to withdraw the UK's declarations
or reservations to the 1959 Convention or 1978 Protocol.
The Committee looks forward to receiving your
response to the points raised above. In the meantime, the following
documents remain under scrutiny: JUSTPEN 108 (hearings by video
link and interception provisions), JUSTPEN 4 (hearings by telephone
conference), JUSTPEN 7 (remote interception), JUSTPEN 13 (joint
investigation teams) and JUSTPEN 21 (reservations to the 1959
Convention).
I am copying this letter to the Chairman and
Clerk of the European Scrutiny Committee in the House of Commons.
6 May 1999
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