Select Committee on European Union Twelfth Report

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 Your officials have since advised that COPEN 56 has been superseded by a later consolidated text, COPEN 60, which will be deposited shortly.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

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