Letter from Kate Hoey MP to Jimmy Hood
MP, Chairman of the European Scrutiny Committee
I am writing in response to the reports of the
European Scrutiny Committee's meetings on 21 April and 5 May.
A revised consolidated text of the draft Convention on mutual
assistance in criminal matters has now been deposited for scrutiny.
I deal below with the other matters that the
Committee has raised.
JURISDICTION OF
THE COURT
OF JUSTICE
The European Scrutiny Committee notes that the
Government does not intend to make a declaration opting in to
preliminary rulings jurisdiction for Third Pillar instruments.
The Committee accepts the reasons for that decision to a limited
extent, but argues that UK courts would nonetheless in practice
be constrained by rulings on the interpretation of Third Pillar
instruments made by the Court following references from a substantial
number of Member States which have opted in to such jurisdiction.
It is true that, if required to interpret the
Third Pillar instrument underlying a particular piece of UK legislation,
national courts would find any preliminary rulings issued by the
ECJ as to the interpretation of that instrument very persuasive.
However, they would not be formally bound to follow the decision
of the Court, and, indeed, it would remain open to the Government
to bring forward legislation requiring the UK courts in future
to disregard the Court's interpretation.
The Committee's argument does, of course, depend
on a presumption that most other Member States will opt in to
preliminary rulings jurisdiction. It remains to be seen whether
this is so.
JOINT INVESTIGATION
TEAMS
The draft proposal contemplates that Europol
officers should be involved in joint investigation teams set up
under the Convention where that is thought appropriate in the
circumstances of the case. The Article may need to be re-drafted
to reflect that intention.
Member States are still discussing in Brussels
the detail of how joint teams established under the Convention
should operate, but it is a long standing, UK position that Europol
staff should not have operational powers. Instead Europol should
add value to on-going investigations undertaken by joint teams
through the provision of analytical and expert support. There
would also be capacity for Europol to take a leading role in providing
facilities for co-ordinating international investigations from
a central point.
RESERVATIONS TO
THE 1959 COUNCIL
OF EUROPE
CONVENTION ON
MUTUAL ASSISTANCE.
The Committee also asks whether the Government
will lift any of its declarations and reservations to the 1959
Convention or its Additional Protocol. The Government continues
to think that most of the UK's declarations and reservations are
necessary, but they are under review. As was explained in the
Explanatory Memorandum of 20 April, the Government is giving particular
consideration to the dual criminality requirement for requests
for search and seizure. However, I will keep you informed about
whether the UK intends to withdraw any of the declarations and
reservations to the 1959 Convention or its Protocol.
I shall of course submit for scrutiny any further
proposals on the Convention in the usual way.
I am sending a copy of this letter to Lord Tordoff.
17 May 1999
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