Letter from Lord Tordoff to Barbara Roche
MP, Minister of State, Home Office
Documents 10938/99 COPEN 35, 11157/99 COPEN
39 and 11571/99 COPEN 43 on interception.
Documents 11570/99 COPEN 42 and 11603/99
COPEN 44 on joint investigation teams.
Document 11084/99 COPEN 37 on data protection.
Sub-Committee E considered the above documents
amending the draft Mutual Assistance Convention at its meeting
on 10 November. As you know, the most recent consolidated version
of the draft Convention, COPEN 11, remains under scrutiny. For
the reasons set out below, the Sub-Committee has decided to clear
the documents dealing with interception (COPEN 35, 39 and 43),
subject to clarification of two points. It is holding the documents
on joint investigation teams and data protection (COPEN 42, 44
and 37) under scrutiny.
INTERCEPTION—COPEN
35, 39 AND 43
It is clear that the interception provisions
of the draft Convention remain complex and controversial. The
Sub-Committee noted that the proposed arrangements in COPEN 43
for intercepting a target present in another Member State are
broadly satisfactory to the Government but that the definition
of a criminal investigation for the purposes of interception in
COPEN 39 is not. The Sub-Committee will continue to keep a watching
brief on all aspects of interception under the draft Convention.
It is content, on this basis, to clear the new documents dealing
with interception from scrutiny, subject to clarification of two
points of detail.
First, while it is clear that the visited Member
State may prohibit the use of intercept material as evidence in
criminal proceedings, draft Article 18(3)(a) and (b) in COPEN
43 would not seem to prohibit any other use. Could, nonetheless,
intercept material be used to support an application for the use
or exercise of coercive powers, such as forcible entry? Secondly,
under COPEN 35 the prohibition on the use or intercept material
could be overridden if necessary to protect the rights of an accused
person. COPEN 43 does not include this override power. Might this
prejudice an individual's rights of defence?
JOINT INVESTIGATION
TEAMS—COPEN 42 AND
44
The Sub-Committee has noted the similarity between
the text proposed in COPEN 44 on the status and liability of officials
taking part in controlled deliveries, joint investigation teams
and covert investigations and Articles 42 and 43 of the 1990 Schengen
Implementing Convention relating to cross-border surveillance
and "hot pursuit". You state in your Explanatory Memorandum
that there would be no need to change UK law to give effect to
the proposals in COPEN 44. By contrast, your commentary on the
equivalent provisions of the Schengen Convention (submitted with
the UK application to join parts of Schengen) states that primary
legislation would be required. Why do you consider that primary
legislation would be needed to give effect to Articles 42 and
43 of the Schengen Convention but not to the equivalent provisions
of the draft Mutual Assistance Convention?
The Sub-Committee would also find it helpful
if you could explain how, in practice, would an individual in
the UK suffering damage to person or property obtain redress from
the Member State whose official caused the damage, as contemplated
in draft Article Y.
A further question arises with regard to the
relationship between draft Article 13(1) and the new draft Articles
proposed in COPEN 44. The latter only apply to "officials
from a Member State other than the Member State of operation".
However, Article 13(1) on joint investigation teams makes provision
for the participation of officers from third (non-EU) countries,
international organisations or bodies, and experts. Which rules
would govern the status and liability of third country officials
taking part in joint investigation teams?
DATA PROTECTION-COPEN
37
The Sub-Committee welcomes the Government's
acceptance, in principle, of including within the Mutual Assistance
Convention rules on the protection of personal data. The German
proposal, however, gives rise to a number of concerns. First it
is not clear from the text whether the proposed data protection
provisions are based on, and consistent with, an objective standard
such as the 1981 Council of Europe Convention on the protection
of individuals with regard to the automatic processing of data
and the 1987 Council of Europe Recommendation R(87) 15 regulating
the use of personal data in the police sector. You draw attention
in your Explanatory Memorandum to the potential scope for exchanging
information under Article A. Under Article B(3), it seems that
access to data may be refused on broad public interest grounds,
in addition to any other grounds for non-disclosure under national
law. Can you confirm that the rules proposed in COPEN 37 fully
comply with Council of Europe requirements? In particular, do
you consider that they provide adequate protection of individual
privacy rights?
Possible data protection concerns also arise
in relation to the use of data by members of a joint investigation
team. As you note in your Explanatory Memorandum on COPEN 42,
Article 13(9)(b) would permit information to be used for a purpose
other than that for which the joint investigation team was established.
As mentioned above, officers from non-EU States or from international
organisations or bodies may participate in joint investigation
teams. What, if any, data protection safeguards and restrictions
on the use of data would apply to such third country officials?
The proposals in COPEN 37 do not include a requirement
to establish or designate an independent body to oversee the application
of the data protection rules. Most other Third Pillar Conventions
recognise the need for a supervisory body to ensure effective
controls on the use of data. This is also the case under the Schengen
Implementing Convention. Which body or bodies, if any, would be
responsible for supervising the application of the rules?
You will doubtless wish to consult the Data
Protection Registrar on the adequacy of the proposed text in COPEN
37. The Sub-Committee would be grateful for a summary of her views,
when available.
Finally, the Sub-Committee is concerned at the
increasing fragmentation of data protection provisions in complex
Third Pillar information systems. It would welcome a progress
report on the Italian proposal to standardise data protection
rules and supervisory bodies. Subject to agreeing on a satisfactory
standard, would this not be a better way forward than drafting
ad hoc rules in relation to each new Convention?
The Sub-Committee looks forward to receiving
your response.
I am sending a copy of this letter to the Chairman
and Clerk of the European Scrutiny Committee in the House of Commons.
11 November 1999
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