Select Committee on European Union Twelfth Report

Letter from Kate Hoey MP to Lord Tordoff

  I am writing in response to your letters of 6 May and 27 May about the interception provisions in the draft Convention on Mutual Legal Assistance in Criminal Matters.

  Your letter of 6 May asks for an explanation of why the notification requirements in Article 13, if applied to the security and intelligence agencies, would necessitate disclosure of sensitive techniques and operational methods. In some cases, we believe that disclosure of the very fact that an intercept was possible might reveal sensitive operational capabilities of the security and intelligence agencies. Much can be deduced, over time, by the circumstances of particular notifications.

  You ask whether the Convention would permit the UK authorities to make their consent to a request from another Member State subject to the condition that the intercept material could not be used in evidence. The Convention would allow the UK to impose any conditions on other Member States that it would impose on its own authorities. This could include a prohibition on the use of intercept material as evidence. We recognise, however, that other Member States will wish to use intercept material obtained under the Convention as evidence. The Government's own policy on the use of intercept material as evidence in UK courts will be addressed in the consultation document on interception legislation which we shall be publishing very shortly.

  You express concern about the resource implications of using the remote access solution to satellite interception. Law enforcement agencies will need to take account of any cost implications when deciding whether to apply to the Secretary of State for a warrant to intercept a satellite telephone. The same considerations apply to existing types of interception and the use of other investigative techniques, for example a decision to deploy a greater number of officers for surveillance purposes.

  You also ask whether we consider that the Government has a continuing interest in the use made of a facility situated on its territory. We fully recognise that the Government has such an interest. Indeed, satellite operators with facilities on UK territory will need to comply with the normal licensing conditions for telecommunications operators in the UK. We will also need to be satisfied that appropriate security arrangements are in place to prevent misuse of any remote access facility. We do not, however, believe that the host Member State has a substantive role to play in individual cases where the target is on the territory of the intercepting Member State.

  Your letter of 27 May asks whether the effect of the proposed definition of a criminal investigation in Article 2a of JUSTPEN 33 is such as to exclude from the scope of the Convention the activities of the security and intelligence agencies. The version of Article 2a in JUSTPEN 24 would have this effect. However, for the reasons set out in the Explanatory Memorandum on JUSTPEN 39 (which I am depositing in parallel with this letter), we believe the revised definition of criminal investigation in JUSTPEN 33 would apply to intelligence gathering by the security and intelligence agencies. It is therefore not acceptable in its present form.

  Finally, you ask in your letter of 27 May whether the Government accepts the need for data protection provisions and if so whether these are to be agreed before the Convention is ratified and enters into force. The Explanatory Memorandum of 9 March on JUSTPEN 108 (13144/98) explained that agreement had not been reached among the Member States on whether data protection provisions are necessary. The Government continues to support the principles of data protection and is awaiting clarification from the Presidency on how this matter is to be taken forward.

  I am copying this letter to Jimmy Hood.

15 June 1999

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