Letter from Lorna Harris, Head MLA UK
Central Authority, Home Office to Dr Christopher Kerse, Legal
Adviser to the Select Committee on the European Union
You have recently received an Explanatory Memorandum
in relation to COPEN 18, the latest consolidated text of the draft
Mutual Legal Assistance Convention. I understand that this will
be considered by the Scrutiny Committees today.
I received yesterday a further consolidated
text, contained in document 7046/00 COPEN 19 which was produced
as a result of discussions of COPEN 18 at COREPER on 15 and 16
March. In view of the discussions on this draft Convention which
will take place at the meeting of the Justice and Home Affairs
Council on 27 March, I was anxious that the Scrutiny Committees
considered as up to date a text as possible. In addition to the
amendments contained in COPEN 19, a discussion on the proposed
text took place in a meeting of COREPER this morning, as a result
of which further amendments to the text were agreed.
The position therefore is that there are several
alterations from the text contained in COPEN 18, and I would wish
to draw these to the Scrutiny Committees' attention.
1. On page 4 of COPEN 19, there is a proposal
by the Luxembourg delegation to amend Article 17(4). That was
approved today at COREPER. This amendment is acceptable to the
2. On page 4 of COPEN 19, also, there is
a proposed declaration on Article 17. This was considered at COREPER
today, and a new form of words has been agreed. Subject to final
drafting, the text will now read as follows.
"Declaration on the preparation of the application
of the Convention on mutual assistance in criminal matters between
the Member States of the European Union. With a view to an effective
implementation of the Convention on mutual assistance in criminal
matters between the Member States of the European Union, the Member
States shall, within a year after the adoption of the Act establishing
the Convention, consult each other on all practical and technical
aspects related to the application of the provisions of the Convention,
in particular the provision of Title III, taking into account
the obligations in Articles 4 and 5 of the Telecoms Directive.
The Commission shall be fully associated."
This additional declaration is acceptable to
3. COPEN 19 contains amended text of Article
18(3)(a)(3). At COREPER today the text was further modified, so
that the first sentence now reads as follows (amendment underlined)
"in cases referred to in subparagraph (a)(2), requiring that
any material already intercepted while the subject was on its
territory may not be used or may only be used under conditions
which it shall specify." The footnote to the text in COPEN
19 explains the differences in the text as compared with the text
previously in COPEN 18. You will observe that the material alteration
here is the removal of the sentence allowing the use of the intercepted
material for the purpose of preventing the commission of serious
crime. However, the footnote makes it clear that the Explanatory
Report will indicate that Member States should show flexibility
in the use of intercepted material in preventing an immediate
and serious threat to public security. This proposal does not
cause a problem for the UK.
4. Additionally, the footnote to this Article
will contain a new form of words proposed in COREPER today by
Denmark, covering the first indent to (b). Subject to final drafting,
this indent will read as follows: "explain that in some cases,
however, it might be necessary to use the material already intercepted
in proceedings concerning claims for damages in relation to the
interception carried out or action taken on the basis of Article
18(3)(b). Such limited use should not be considered contrary to
a decision of the notified Member State pursuant to Article 18(3)(a)(3)."
In particular this second sentence may be the subject of some
further redrafting, but the thrust will remain.
5. Following COREPER today, too, there will
also be an amendment to the third indent, so that the last line
will read (amendment underlined) "crimes involving threats
to human life, drugs offences and similar serious crimes."
Both these proposed amendments are uncontroversial.
6. Article 18(3)(b) will be amended as in
COPEN 19. This text was approved today in COREPER. Although the
text is narrower than the UK had wished, since it is restricted
to cases where there is an immediate and serious threat to public
security, it is thought that the provisions in the Explanatory
Report detailed in the footnote on page 37 of COPEN 19 go much
of the way to meeting our concerns.
7. In relation to data protection, there
was no support at COREPER today for the alternative wording for
Article 20a(1) proposed by Luxembourg and contained on page 42
of COPEN 19. Accordingly, there will be bilateral discussions
between Luxembourg and the Presidency to try to achieve agreement
on a text in relation to this issue.
I would be most grateful if these issues could
additionally be placed before the Scrutiny Committees, and regret
that the material has come in so late for their consideration.
22 March 2000