Letter from Barbara Roche MP to Lord Tordoff
Thank you for your letter of 20 January.
2. You asked for a report of proceedings
at the Justice and Home Affairs Council on 2-3 December. The scope
of the interception provisions, as set out in COPEN 60, was agreed
at the Justice and Home Affairs Council on 2-3 December without
substantive discussion. Article 17 is very nearly agreed; only
one Member State has retained a reservation.
3. As your letter points out, the main outstanding
issue on the interception of communications concerns Article 18(3).
This deals with the procedures for notifying another Member State
that a target is being intercepted on its territory. The text
places the notified Member State under an obligation to make a
decision within 96 hours on whether to allow the interception
to continue. While the notified Member State is reaching this
decision, the text allows the interception to continue. All Member
States are content with this approach.
4. The key outstanding question concerns
what happens if the notified Member State fails to respond within
96 hours. The current text of Article 18(3)(b) makes clear that
in such circumstances the interception must stop. However, several
Member States are concerned that this will damage operational
co-operation by providing the notified Member State with an excuse
for inaction.
5. In some ways, this point is largely academic.
The Convention will place Member States under a legal obligation
to respond within 96 hours. Failure to respond within this period
will be a serious matter. Nevertheless, the UK is content with
the present text of Article 18(3) which states that failure to
respond within 96 hours should constitute a decision to prohibit
the interception.
6. The Presidency is still considering how
to take forward this issue. However, it seems likely that any
revised text of Article 18(3)(b) will retain the principle that
a failure to respond should result in the interception being stopped.
7. Finally, I would like to thank you for
agreeing, exceptionally, to clear the interception provisions
from scrutiny in advance of the Justice and Home Affairs Council
on 2-3 December.
8. You have asked for further explanation
of the precise status of the codes of practice governing rights
of attendance in the United Kingdom. Under the Police and Criminal
Evidence Act 1984 the Secretary of State was empowered to issue
Codes of Practice. Such a code has been issued in relation to
the detention, treatment and questioning of Persons by Police
Officers. This code governs the right of attendance when individuals
are being questioned. In a standard textbook on Criminal Procedure
(Archbold) they are described thus. "The codes are not subordinate
legislation. They are issued in accordance with section 67 of
the 1984 Act, in a three stage process: the Home Secretary publishes
a draft code for consultation; the Home Secretary lays the code
before Parliament; the Home Secretary brings the code into force
by statutory instrument". "Their true status is, it
is submitted, clear from sections 60, 66 and 67: they are codes
of practice designed to regulate the conduct of persons charged
with the duty of investigating offences".
9. You ask whether there is any significance
in the omission of the word "serious" in Articles 13(1)
and 13(9)(b) of the draft Convention. The joint teams article
is only intended to be used in relatively complicated cases; it
was however the opinion of the working group that the Convention
should not be specifically restricted to serious crimes. There
is also a problem with definition, since there is no European-wide
accepted definition of "serious crime". Leaving it in
the article was considered to be potentially confusing.
10. Your next questions relate to any immunity
to be enjoyed by members of Europol when acting as a member of
a joint investigation team. Under Article 8(1)(a) of the Protocol
on the Privileges and Immunities of Europol, members of Europol
have "immunity from the legal process of any kind in respect
of words spoken or written, and of acts performed by them, in
the exercise of their official functions". The exact role
that Europol officers will play in joint investigation teams is
under discussion at the Europol Working Group. No specific proposals
have yet been made by the Presidency. We will keep you and the
scrutiny committees informed of any developments. It is therefore
not possible to be completely clear at this stage on the level
of immunity that Europol officers will enjoy when operating as
part of a joint investigation team.
11. You sought an assurance that 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. Although there is now a draft text in the Mutual Legal
Assistance Convention relating to data protection, it is not yet
finalised. However, all Member States are already bound by the
1981 Council of Europe Convention relating to Data Protection.
12. The opinion of the Council Legal Service
on Article 23(5) was an oral one provided for the Judicial Co-operation
Working Group. I will provide a summary of a written opinion if
it is issued, in due course.
13. You comment that you have not received
replies to your letters of 11 November and 2 December 1999. It
is correct to say that the letters were not replied to individually.
Matters were moving extremely quickly in late November and early
December 1999; I considered that providing separate letters would
only serve to confuse an already complicated matter. The Explanatory
Memorandum on 13541/99 COPEN 60 submitted on 13 December 1999
did provide a consolidated reply covering many of the questions.
14. Your letter of 11 November raised three
questions on joint investigation teams: the first, concerning
the read across to Articles 42 and 43 of the Schengen Convention,
was answered by paragraph 11 of Policy Implications of the Explanatory
Memorandum to 13541/99 COPEN 60. The second, concerning the practical
means by which redress would be obtained, was answered in paragraph
12 of the same Memorandum; and the third, on the status of Europol
officers was answered in paragraph 13. The further question you
asked on this issue in your letter of 20 January is answered above.
15. Your 11 November letter also raised
a series of questions concerning data protection. Except for the
final question on an Italian proposal to standardise data protection
files and supervisory bodies, the questions sought information
about a specific document, 11084/99 COPEN 37. That document did
not survive into the consolidated text, and, as I explained in
paragraph 25 of the Explanatory Memorandum on 13541/99 COPEN 60,
we therefore did not consider that the questions relating to it
were still relevant. There is however now a new text on data protection,
5706/00 COPEN 2 which will be the subject of an Explanatory Memorandum
shortly. I will take into account your comments on the former
document in my Explanatory Memorandum on the latter one.
16. Work following up the Italian proposal
for the establishment of a common set of data protection rules
and supervisory arrangements applicable to all Third Pillar instruments
is being taken forward by the Information Systems and Data Protection
Working Party of the Council of Ministers. The discussion has
shown that the issues are technically very difficult. The Government
believes that there is a need for further discussion to clarify
the issues and the Portuguese Presidency is taking this work forward
as one of its priorities. I agree the logic of having a single
text in this case the practical need for a text in this Convention
requires a separate text at this stage.
17. Your 2 December letter almost entirely
concerned the agreement exceptionally to clear the interception
of communications articles before the Justice and Home Affairs
Council. I cannot identify any unanswered questions.
18. You are concerned that the Justice and
Home Affairs Council on 2 December appears to have reached political
agreement on data protection and a consensus on the draft provisions
on joint investigations teams. You stressed that, except for the
provisions on interception of communication, the Convention as
a whole remains under scrutiny, and you wished to know how "agreement"
and "consensus" are compatible with the terms of the
Scrutiny Reserve Resolution.
19. I can assure you that political agreement
was not reached at the Council on any of the non-interception
provisions of the draft Mutual Legal Assistance Convention. The
"agreement" reached on data protection was a purely
procedural one that the Council should seek to agree on specific
provisions in the Convention before next March. The Portuguese
Presidency has recently submitted a new draft text on data protection,
and this will be the subject of an Explanatory Memorandum shortly.
I can also assure you that the "consensus reached on the
draft provisions concerning the possibility to set up joint teams"
was not formal political agreement. The consensus reached is an
administrative one in that there has been agreement in the Working
Groups that the wording is acceptable. I can also confirm that
there is no question of changing the current procedures, whereby
agreement to an item as an "A" point is given only when
it is clear that no further substantive discussion is needed;
that, where necessary, political agreement has already been given;
and that Parliamentary scrutiny has been completed.
20. We should not however lose sight of
the fact that a number of articles in the text remain unchanged
from May 1998 when the Convention was debated on the floor of
the House of Lords. It was always my understanding that all the
existing articles were cleared from scrutiny at that stage and,
on this basis, political agreement was reached on those articles
at the June 1998 Council. I would welcome an assurance from you
that you have no intention of re-opening the articles agreed in
May 1998. There have of course been changes to the numbering of
the articles of the draft Convention since then. I therefore hope
that the enclosed list of all the articles of the draft Mutual
Legal Assistance Convention, together with our view of their scrutiny
position, will prove helpful.
21. I shall of course submit for scrutiny
any further proposals on the Convention in the usual way and provide
the Committee with a revised consolidated text of the Convention
as soon as it is available.
22. I am sending a copy of this letter to
Jimmy Hood, Chairman of the European Scrutiny Committee.
24 February 2000
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