Select Committee on European Union Twelfth Report

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.


  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.


  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.


  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.


  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.


  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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