Letter from Lord Tordoff to Barbara Roche
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
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