Select Committee on European Union Twelfth Report

Letter from Lord Tordoff to Barbara Roche MP

  Sub-Committee E considered the latest consolidated draft of the Mutual Assistance Convention, COPEN 60, at its meeting on 19 January and decided to hold it under scrutiny for the reasons set out below.

  You may recall that I wrote to you on 11 November raising a number of questions regarding interception, joint investigation teams (in particular, the civil and criminal liability of foreign officials operating on UK territory) and data protection. I wrote again on 2 December stating that the Committee was prepared, exceptionally, to clear the interception provisions from scrutiny in time for the Justice and Home Affairs Council on 2-3 December. I emphasised that the other provisions of the draft Convention remained under scrutiny. I also asked for an account of the proceedings at the Council. I have not yet received a response to either letter, although your Explanatory Memorandum on COPEN 60 deals with some of the points I raised.

  The interception provisions in COPEN 60 do not appear to raise any new issues of substance. However, the Council Conclusions record two outstanding problems. The first concerns Article 17(1). The Committee understands that the UK and most other Member States are content with this provision since it permits, but does not require, satellite telecommunications operators to make available a facility enabling a service provider in a Member State other than the one hosting the satellite ground station to intercept a target present in the same State (the so-called "service provider solution"). The second concerns Article 18(3). As drafted, this provision requires the explicit consent of a Member State to an interception carried out on its territory from another Member State. Silence must be treated as a decision to prohibit both the interception and the use of intercept material. The Council Conclusions state that most Member States believe that silence should imply consent to the continuance of the interception. This would be a significant reversal of the principle of explicit consent, yet your Explanatory Memorandum does not state whether the UK would support such a change. The Committee would be grateful for clarification of the Government's position on Article 18(3)(b).

  Your Explanatory Memorandum highlights two changes to the provisions on joint investigation teams. The Committee noted that Article 13(4) now provides for the possibility of excluding a foreign official from certain aspects of an investigation for particular reasons recognised by the domestic law of the Member State in which the team is operating. You state that "rights of attendance in the UK are generally a matter for codes of practice but as these are equivalent to subordinate legislation the Government considers that they would be covered by the term `national' law". The Committee would welcome further explanation of the precise status of the codes of practice to which you refer.

  The Committee identified a further change which you do not mention. Earlier versions of Article 13 stated that the establishment of a joint investigation team would be appropriate for the investigation of "serious" criminal offences. Similarly, information obtained by an official participating in a joint team could only be used for the purpose of detecting, investigating and prosecuting other "serious" criminal offences (Articles 13(1) and (9)(b)). The qualification introduced by the term "serious" has been omitted in COPEN 60. What is the significance of this omission?

  The Committee noted that the rules in Articles 14a and 14b on the status and liability of foreign officials will not apply to third country (non-EU) officials nor, according to your Explanatory Memorandum, will they apply to Europol officials operating within a Member State. You say that, in both cases, their status and liability would be that of ordinary members of the public. The exclusion of Europol officials (most of whom are likely to be EU nationals) would seem to be of particular significance in the light of the key role accorded to Europol in combating cross-border crime. Can you confirm that Europol officials would not enjoy any immunity when operating in a Member State under this Convention? In particular, is it the case that they would not be acting "in the exercise of their official functions" for the purposes of Article 8(1)(a) of the Protocol on the Privileges and Immunities of Europol?

  The Committee expressed concern at the proposal to substitute a Council declaration for specific data protection rules. A number of questions raised in my letter of 11 November remain pertinent and I hope that you will address them in your response. They concern, in particular, my request for a progress report on the Italian proposal to standardise data protection rules and supervisory bodies and, also, clarification of the extent to which data protection safeguards and restrictions on the use of data would apply to third country officials acting on the territory of a Member State. The Committee noted that the proposed declaration on data protection in your Explanatory Memorandum differs from the version appearing in the introduction to COPEN 60. It would seem to open up the prospect of a free-standing instrument which might only be agreed after the Convention has been adopted. The Committee would welcome an assurance that the entry into force of the Convention will be conditional on the adoption of a legal instrument containing data protection safeguards at least equivalent to those generally applicable under the EC Data Protection Directive.

  The Committee has noted your comments on Article 23(5), which provides for the immediate application of the Convention between Member States that have completed their ratification procedures, and the possible incompatibility of this provision with the Treaty. I would be grateful if you could provide the Committee with a copy of the opinion of the Council Legal Service when available.

  As mentioned, the Committee intends to hold COPEN 60 under scrutiny pending your response to the points raised above. The Committee has decided to clear from scrutiny the following documents which COPEN 60 supersedes: COPEN 11, COPEN 37, COPEN 42, COPEN 44, COPEN 47 and COPEN 54. I also look forward to receiving a reply to my letters of 11 November and 2 December.

  Finally, the Conclusions of the Justice and Home Affairs Council on 2-3 December state that Ministers "reached an agreement on the approach to be followed on the question of data protection" and "confirmed the consensus reached on the draft provisions concerning the possibility to set up joint investigation teams". As you will be aware, all provisions of the draft Convention, other than those on interception cleared by my letter of 2 December, remain under scrutiny. I would therefore welcome an explanation of how the "agreement" and "consensus" reached at the Council are compatible with the terms of the Scrutiny Reserve Resolution.

  I am sending a copy of this letter to the Chairman and Clerk of the European Scrutiny Committee in the House of Commons.

20 January 2000

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