Select Committee on European Union Twelfth Report

Extract from Explanatory Memorandum on the Draft Convention on Mutual Assistance in Criminal Matters between the Member States of the EU: Consolidated Text submitted by the Home Office 15 March 2000 6836/00 COPEN 18


2.  Document 6836/00 COPEN 18 is a new consolidated text of the Draft European Union Mutual Legal Assistance Convention. It is the text on which agreement will be sought at the Justice and Home Affairs Council on 27 March.


  16a.  The Convention is expected to contain a provision on territorial scope to be inserted in Article 23 which will enable the Convention to be extended to Gibraltar, the Channel Islands and the Isle of Man once the 1959 Convention has been extended to these territories. The exact wording of this provision has yet to be finalised.


  17.  Consultations on the content and detail of the draft Convention have taken place with other Government Departments, prosecuting authorities, public telecommunications operators and enforcement agencies in the UK. The data protection provisions have been submitted to the Data Protection Registrar for her views, and this aspect is discussed further in relation to Article 20a below.


  18.  The consolidated text of the draft Convention contains a number of changes from texts previously submitted for scrutiny. As explained in the introduction to document 6836/00 COPEN 18, these amendments derive from a number of sources. Some amendments have been made as a result of the work of the Working Group on Judicial Co-operation in Criminal Matters, some as a direct result of the opinion of the European Parliament, some from advice from the Council Legal Secretariat, and some from the deliberations of the Article 36 Committee, Coreper, or JAI Counsellors. Any changes from texts previously submitted to you have been identified and clearly marked, although in many cases, these are not changes of substance, but rather changes introduced for the sake of clarity and consistency of drafting. A complete list of minor textual changes is contained in the Annex to this Explanatory Memorandum.


  19.  Various titles in the Convention have been modified, and individual Articles have had their headings amended. None of this affects the substance of the Convention.


  20.  The draft Council Act which now establishes the Convention contains text originally issued in 6297/00 COPEN 11. It is technical in nature, and contains specific references to Norway and Iceland. Paragraph 2 states that certain articles fall within the scope of the Association Agreement with Norway and Iceland, and paragraph 3 lists those Articles.

  21.  Paragraph 4 states that Norway and Iceland have been duly consulted concerning the relevant articles. Paragraph 5 states that Norway and Iceland will be told which measures are Schengen relevant measures and that when these have been ratified by Norway and Iceland those two states will be expected to make the relevant declarations under Article 21 of the Convention. (Article 21 governs competent authorities and other related issues).

  22.  The Draft Council Act does not pose any problems for the Government.


  23.  The recitals have been amended slightly to take account of the opinion of the European Parliament, and also discussions in Coreper on 17 and 24 December 1999. They are not contentious.


  24.  Apart from minor drafting changes for the sake of clarity, the only amendment of substance to the text of Article 1 is contained in the insertion of a new Article 1(c). This provision makes it clear that the Convention is to supplement inter alia the provisions on Mutual Legal Assistance contained in the Schengen Implementing Convention and not repealed by Article 2(2). In fact this provision re-introduces text which had previously been contained in Article 1, but had been removed from COPEN 60.


  25.  Article 2 defines those provisions of the Convention which are deemed to be building on the Schengen acquis, and repeals the corresponding provisions in the Schengen Implementing Convention. The repeal is a logical consequence of the introduction of measures building on the original Schengen acquis, and is restricted to those provisions which replace similar provisions in Schengen. These relate to the extension of Mutual Legal Assistance to administrative offences (Article 3 and Schengen 49(a)), the service of procedural documents by post (Article 5 and Schengen 52), direct transmission of requests (Article 6(1) and Schengen 53) and controlled deliveries (Article 12 and Schengen 73).


  26.  This Article contains only minor drafting amendments.


  27.  Although there is new text in bold in Article 4(1) the concept is identical with that previously contained in the earlier Article 4(1). There is a new Article 4(2) which contains the text previously contained in the second part of the "old" Article 4(1), with an amendment (underlined text) inserted as a result of the opinion of the European Parliament. It is thought that these amendments improve the pre-existing text without amending the effect.


  28.  The minor amendments to this Article are not contentious.


  29.  In Article 6(1) the amendments in bold were inserted as a result of the discussion in the Working Group. They are designed to clarify the earlier text.

  30.  Article 6(3) contains the opt-out provisions which have already been described to the Scrutiny Committees. The effect of this Article has to be seen in the context of the repeal of Article 53 of the Schengen Implementing Convention envisaged by Article 2 above. Article 6(3) entitles the UK to declare that incoming requests should be sent via its central authority, but there is a restriction on this declaration so that the principle of direct transmission envisaged in Article 6(1) should not be so limited by the time that participation in the Schengen acquis is effective for the UK. Thus, if the Schengen acquis is put into effect for the UK before the Mutual Legal Assistance Convention is ratified, the opt out provision in Article 6(3) would be unlikely to become available for the UK, which would be bound by the provisions of Article 6(1), ensuring that requests should be made directly between judicial authorities.

  31.  Minor amendments to other parts of Article 6 clarify the text.


  32.  The amendments to this Article seek to clarify the text.


  33.  The substantial amendment to Article 8(3) clarifies a previously rather opaque text.


  34.  The amendments to Article 9 are not thought to be contentious.


  35.  The amendments to Article 10, with the exception of those to Article 10(5)(b) and (d) do not affect the substance of the provision.

  37.  The amendments to Article 10(5)(b) and (d) were proposed by the European Parliament, and allow for the greater protection of the person to be heard. In relation to Article 10(5)(b), the mandatory "shall" replaces the previous "may". Statewatch had a concern in relation to the lack of any provision allowing for legal representation for a potential witness in these circumstances, and this amended provision goes some way to addressing that concern.

  38.  In Article 10(5)(d) the services of an interpreter can be called on additionally by the person to be heard. This too was one of the concerns of Statewatch, and the amendment addresses that concern.


  39.  Amendments to this Article are not substantial in nature.


  40.  There are no amendments to this Article.


  41.  There are several minor drafting amendments to this Article. The more major amendments, however, are in respect of a new Article 3a, which defines "seconded" team members, and in Article 3(11) which reformulates the former text without changing the substance. The definition of "seconded" team members is acceptable and is a welcome addition to the text of the draft Convention.


  42.  The amendments to Article 14, 14a and 14b are all thought to clarify the text without amending its effect.

  43.  The Committees have previously questioned whether Europol officers working in joint investigation teams would have the immunities set out in the Europol Convention or whether they would have the immunities of an ordinary member of the public. In my reply to Lord Tordoff's letter of 20 January I stated that I would keep the scrutiny committees informed of any proposals that the Presidency had on the role that Europol officers would play in joint investigation teams. There have been no proposals from the Presidency on this issue. However it is clear that, when exercising their official functions they would enjoy "immunity from the legal process of any kind in respect of words spoken or written, and acts performed by them." What remains unclear is the extent to which the exercise of their official functions would involve their being present in the United Kingdom. It is currently envisaged, however, that where Europol officers are to be involved in a joint investigation involving the UK, their role would be the traditional one of analysis, and would not therefore necessitate them being in the UK.


  44.  There are no amendments to this text.


  45.  One minor amendment appears in Article 16(7) as a result of the advice of the European Parliament. It clarifies the text. Because of the difficulties surrounding the establishment of the current text, there was a desire to alter as little as possible in connection with the provisions of interception. There are no other amendments to the text of this Article.


  46.  There are no amendments to the text of this Article.


  47.  In relation to Article 18, there has been considerable discussion since the JHA Council in December 1999. Document 6640/00 COPEN 15 (deposited for scrutiny on 9 March 2000, but not the subject of an Explanatory Memorandum) reports the outcome of the discussion at the JHA Council on 2-3 December about the interception provisions in the draft Convention, and contains a proposed new text for Article 18(3). This was the subject of discussion by JHA Counsellors on 10 March and the text of Article 18(3) contained in COPEN 18 is the result of those discussions.

  48.  Article 18(3) deals with the procedures for notifying another Member State that a target of interception has moved on to its territory. There are two outstanding issues. First, the JHA Council did not reach agreement in December on what should happen where the notified Member State has failed to respond within the 96 hour deadline established by this article (this is often described as whether silence should equal consent). Secondly, some Member States have expressed concern that earlier texts of Article 18(3) enabled the notified Member State only to prohibit the use of intercept product as evidence in criminal proceedings.

  49.  The text of Article 18(3) in COPEN 18 addresses these issues by:

    (a)  enabling the notified Member State to have a short extension (up to 8 days, during which time the interception continues) to carry out any internal consultation which may be necessary to decide whether to allow the interception to continue; and

    (b)  enabling the notified Member State to prohibit the use of intercept product unless the intercepting Member State needs to use the intercept product for the purpose of preventing or interfering with the commission of serious dangerous crime. This applies while the notified Member State is reaching a decision on whether to continue the interception, and following a decision to terminate the interception.

  50.  We are content with this approach, and hope that it will enable the Council to reach political agreement on the Convention at its meeting on 27 March. For consistency with our domestic legislation, we would prefer the wording of Article 18(3) to read "for the purpose of preventing the commission of serious crime." But, if necessary, we are content for the Explanatory Report on the Convention to explain what is meant by "serious dangerous crime" (as suggested by another Member State in a footnote to Article 18(3)).


  51.  There are no changes to these Articles.


  52.  This is a new Article incorporating the text on data protection. The text contained in COPEN 18 is a compromise text proposed as a result of the deliberations of the Judicial Co-operation Working Group on 16-17 February and the Article 36 Committee on 28-29 February. We have consulted the Data Protection Registrar about all the draft texts as they have emerged, and we have sought to answer the concerns she has expressed in her letter of 6 March to the Legal Assistant to the Select Committee on the European Union in the House of Lords.

  53.  The text of the Article is very little changed from that in 6296/00 COPEN 10, which, as has been said, was deposited for scrutiny on 25 February, but was not the subject of a separate Explanatory Memorandum. An additional proposed text was contained in Doc 6654/00 COPEN 16, issued on 3 March 2000, and not deposited for scrutiny, since it was apparent by the time it was received that it had been superseded by discussions in the Article 36 Committee, and that a new consolidated text was about to be issued. The current proposed text will again be discussed at Coreper on 15 March, after this Explanatory Memorandum has been prepared. A note of any changes agreed at that meeting will be passed separately to the Clerk to the Scrutiny Committees.

  54.  Article 20a(1)(a) is unchanged from the text in COPEN 10.

  55.  Article 20a(1)(b) is unchanged save for the deletion of the word "legal". This does not cause the United Kingdom any problems as all judicial proceedings in this country are also legal proceedings.

  56.  In Article 20a(1)(c) there remains a suggestion that the word "immediate" be deleted. The United Kingdom is not inclined to support this change, in its opinion permission can be sought if a threat is not immediate.

  57.  Article 20a(1)(d) is unchanged from earlier drafts.

  58.  The text of paragraph 2 in 6296/00 COPEN 10 included, in brackets, specific reference to those Articles which enabled a Member State's own law enforcement officials to obtain evidence as a result of the application of the draft Mutual Assistance Convention. An example of this would be a controlled delivery in which personal data could be obtained by officers from one Member State participating in a controlled delivery in another Member State. The new text deletes the reference to specific articles, though the general concept will be explained in the Explanatory Report to the Convention.

  59.  The Government would prefer specific references, although it does not consider this to be an issue which would justify holding up the Convention.

  60.  Article 20a(3) and (4) are unchanged, apart from the removal of square brackets. Article 20a(5) and (6) are also unchanged.

  61.  The proposal by the Luxembourg authorities is an alternative to Article 20a(1). It is, I regret currently only available in French. In essence it provides that personal data communicated under the Convention may be used by the Member State to which they have been transferred in accordance with 20(a) and 20(b) of the text contained in COPEN 18. However, it then adds that the Member State providing the data may state that the use of the data or any part thereof, for a purpose for which it could have refused to transmit the data, in accordance with the draft Convention, or with the instruments listed in Article 1 of the Convention, is dependent on its prior consent. This provision, which has so far not met with the agreement of other Member States, is designed to cater for Luxembourg's special position since it has so far failed to implement the 1978 Protocol to the 1959 Convention. This Protocol extends the provision of the 1959 Convention to fiscal matters, but, since Luxembourg has not yet implemented this, it would be impossible for Luxembourg to sanction the use of data for fiscal purposes. Luxembourg clearly has a major problem with the further use of data for unspecified purposes, which might extend to fiscal purposes, but other Member States are not in favour of this restriction. The matter will be discussed again at Coreper on 15 March.

  62.  The Data Protection Registrar has been consulted about the proposed texts (to the extent that their content was then known) and in her letter of 6 March to the Legal Assistant to the Select Committee on the European Union, has made a number of comments on the data protection provisions in the draft Convention. The Scrutiny Committees will be anxious to know how the Government reacts to the concerns expressed in that letter.

  63.  There are two main points made by the Data Protection Registrar. In the first place, she is concerned that there is insufficient purpose specification in the draft text. She makes comparison with Article 102 of the Schengen Implementing Convention. The Government does not believe that this is a truly appropriate comparison. The data protection provisions of that Convention refer to the Schengen Information System, which is a specific database set up to store information held by Member States. The draft Mutual Legal Assistance Convention does not set up such a system. Information obtained as a result of a request under the EU Mutual Legal Assistance Convention will not be of the same systematic nature, nor will it necessarily be capable of being automatically processed. The Government does not consider it necessary to have the same restrictions on this information as on information specifically sorted on specially set up databases.

  64.  The second point relates to the need for a binding data protection provision. There has been discussion in the Working Group as to whether there needs to direct reference to Convention 108 (the 1981 Council of Europe Convention). However, the view has ultimately been agreed on (as explained in footnote 4 to Article 20a) that the Explanatory Report to the Convention will contain a definition of the term "personal data" and the reference to the 1981 Convention. The 1981 Convention now forms part of the European Union acquis, and all Member States have now ratified it. For that reason, it is not thought necessary to refer to it specifically, since it is now implemented in all Member States, and, since it also part of the acquis, all applicant states will have to ratify it as part of the accession process.

  65.  The Government accepts that data protection is an important issue. However there is now a significant prospect that the Mutual Legal Assistance Convention could be agreed at the 27 March Justice and Home Affairs Council. The Government considers that the opportunity to reach agreement on a Convention that has been under negotiation since the middle of 1996 should not be missed, if this is at all possible. I therefore wish to inform the Scrutiny Committees that, even if it has not proved possible to complete the scrutiny procedure in respect of this Article, the Government will, subject to any other interests, consider giving agreement to the Convention at the Justice and Home Affairs Council.


  66.  Article 21 contains minor amendments.


  67.  This Article contains no amendments.


  68.  This Article contains amendments dealing with when the Convention will come into effect. The amendments are of a technical nature and are acceptable to the Government. This Article will also include wording on extension to Gibraltar, the Channel Islands and the Isle of Man (see paragraph 16a above).


  69.  There are no amendments to this Article.


  70.  This Article has been proposed by the Council Legal Secretariat and deals with the effect of this Convention on Norway and Iceland. It has to be read with the former Article 24a (now Article 2) which lists the Articles deemed to be Schengen building measures and which therefore apply to Norway and Iceland.

  71.  Article 24b(1) means that those measures which build on the Schengen Implementing Convention will enter into force for Norway and Iceland 90 days after they have ratified the relevant parts of the Convention, in their mutual relations with any Member States for whom the Convention is already in force.

  72.  Article 24b(2) states that the relevant provisions of the Convention will also apply between Norway and Iceland and any Member State that ratifies the Convention after Norway and Iceland.

  73.  Article 24b(3) provides a restriction relating to the Association Agreement between the EU and Norway and Iceland.

  74.  Article 24b(4) is a fallback paragraph providing the Schengen building provisions of the Convention will in any event come into force for Norway and Iceland once the 15th of the current 15 EU Members has ratified the Convention.


  75.  There are no amendments to this Article.


  76.  Attached to the text of COPEN 18 is the text of two draft declarations. The second of these was the basis for the agreement on the scope of the interception articles in December 1999.


  77.  There is also attached to COPEN 18 an explanatory report. This contains those matters which have already been discussed and agreed on at the Working Group or elsewhere. It is not however a final text.


  78.  The proposed Articles are not expected to have any significant financial implications for the UK.

Barbara RocheMinister of StateHome Office

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