Select Committee on European Union Twelfth Report

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

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2000