Letter from Lord Tordoff to Barbara Roche
MP
Thank you for your letter of 26 November responding
to two points raised by Sub-Committee E in relation to the interception
provisions of the draft Convention on Mutual Assistance. No doubt
you will be replying shortly to the other matters on which the
Committee sought clarification. You explain in your letter that
UK law allows no exception to the prohibition on the use of intercept
material as evidence in court proceedings, even if such material
would tend to exculpate a defendant. As the prohibition applies
both to the prosecution and the defence, you state that there
is "an equality of arms between both sides". It seems
to the Committee that the equality asserted is unreal as the defence
side, unlike the prosecution, will be unaware of the existence
and content of intercept material and may as a result be at a
potential disadvantage.
The Committee has also considered two further
documents, COPEN 45 and 48, proposing amendments to the interception
provisions. A revised and consolidated version of the Convention
incorporating these amendments, COPEN 56, has been deposited but
an Explanatory Memorandum has not yet been provided. Your officials
have since advised that COPEN 56 has been superseded by a later
consolidated text, COPEN 60, which will be deposited shortly.
The Committee has noted the unexpected but welcome
change in Government policy with regard to the scope of application
of the Convention provisions on interception. It would seem that
you are prepared to agree that the security services, when acting
under statutory powers in support of a criminal investigation
by the police or Customs and Excise, would also have to operate
within the framework established by the Convention.
The Committee took note of the intention of
the Finnish Presidency to seek a political agreement on the interception
provisions of the Convention at the Justice and Home Affairs Council
in December. These provisions are set out in full in Title III
of COPEN 56. The Committee has agreed, exceptionally, to clear
the interception provisions as drafted in Title III notwithstanding
the absence of an Explanatory Memorandum. COPEN 45 and 48 are,
as a consequence, also cleared from scrutiny. The Committee wishes
to make clear that it has cleared the documents in the expectation
that there will be no further substantive change to the interception
provisions. The Committee expects to have early sight of the final
agreed text and to be informed of any other developments in relation
to the Convention resulting from the December Justice and Home
Affairs Council.
I look forward to receiving your account of
proceedings at the Council meeting, the latest consolidated text,
COPEN 60, and your Explanatory Memorandum. You will, of course,
recall that the draft Convention as a whole remains under scrutiny.
I am sending a copy of this letter to the Chairman
and Clerk of the European Scrutiny Committee in the House of Commons.
2 December 1999
| 
