Select Committee on European Union Twelfth Report

Letter from Lord Tordoff to Barbara Roche MP

  Sub-Committee E (Law and Institutions) considered the above documents (COPEN 2, 10, 11, 15 and 18) at its meeting on 22 March. It also took into account the most recent changes to the draft Convention outlined in a letter of the same date from your officials to the Legal Adviser.

  Two main areas remain of concern to the Committee, interception and data protection. I deal with these in detail below. I should, however, say at the outset that the Committee does not underestimate the importance of the Convention in combating serious crime. But, as our 1998 Report on the draft Convention emphasised, a balance has to be struck between the promotion of mutual assistance and the protection of the individual's privacy from excessive and unwarranted interference. The Committee does not think that the right balance has been achieved, particularly with regard to Articles 18(3) and 20(a), or that the concerns consistently expressed by the Committee have been adequately addressed. It has therefore decided to hold the draft Convention (COPEN 18) under scrutiny.

  On interception, the Committee has two main points. First, the amended Article 18(3) reverses the position that a failure to respond within the 96-hour deadline has to be interpreted as a decision to prohibit both the interception and the use of the intercept material as evidence in criminal proceedings. Silence would now imply consent not only for the initial 96 hour period but, potentially, for up to a further eight days. Your Explanatory Memorandum on COPEN 18 describes the revised Article 18(3) but does not give the reasons for the change in the Government's position. You will recall that your letter of 24 February stated that you were content with the principle that a failure to respond within 96 hours should constitute a decision to prohibit the interception.

  Our second point relates to the use of intercept material in circumstances where the notified State has not given its explicit consent to the interception. The wording of the second indent of Article 18(3)(b) is, in our view, ambiguous. The extent of the prohibition on the use of intercept material is not explained. If it is intended to be broader than a simple prohibition on its use as evidence in criminal proceedings, then there would seem to be a need to back up the prohibition with a requirement to destroy the intercept material.

  The Committee supports the deletion of references to "serious dangerous crime" in the latest text of Article 18(3). However, Article 18(3)(b) now provides that intercept material may be used without the explicit consent of the notified State "for taking urgent measures to prevent an immediate and serious threat to public security". While this would as a general rule under Community law imply a strict test, the new footnote suggests otherwise. Further, the extent to which the "public security" test would limit the use of otherwise prohibited intercept material remains unclear. There is a danger that too low a threshold might be adopted and that the intercepting Member State would have too extensive a discretion to determine whether the exception permitting the use of intercept material applies in a given case. The Committee considers that it is essential to include in the Explanatory Report to the Convention a more precise definition of the category of crimes in respect of which preventative measures may be taken if the exception is to be interpreted consistently in all Member States and provide the necessary degree of legal certainty.

  Turning to data protection, the Committee remains concerned that Article 20a fails to address the two issues identified by the Data Protection Registrar. The first is the lack of precision regarding the use of data communicated under the Convention. The Committee does not accept the assumption implicit in your Explanatory Memorandum that the degree of protection afforded by the 1981 Convention should vary according to whether the information is "specifically sorted on specially set up databases" (such as the Schengen Information System) or processed in any other way.

  The second issue is the absence of a binding requirement to apply, in the areas covered by the draft Convention, the minimum standard of data protection specified in the 1981 Convention. Your Explanatory Memorandum states that, as the 1981 Convention forms part of the EU acquis, a specific reference to it in the draft Convention is not considered necessary. Your response does not seem to take account of the derogations permitted by Article 9(2)(a) of the 1981 Convention on such matters as "State security, public safety, the monetary interests of the State or the suppression of criminal offences". Ratification of the 1981 Convention by all the Member States would not necessarily imply that national data protection legislation would apply to all matters covered by the draft Convention. The Committee considers that there is much force in the Data Protection Registrar's recommendation to include a specific reference to the generally applicable data protection standard required by the 1981 Convention. It also wishes to draw your attention to its own recommendation, at paragraph 67 of its 1998 Report, that Article 25 of the "Naples II" Convention on Mutual Assistance and Co-operation between Customs Administrations might provide a useful precedent.

  As already mentioned, the Committee is retaining the draft Convention (COPEN 18) under scrutiny. The earlier documents (COPEN 2, 10, 11, 15, 60 and Justpen 21) are cleared. If, as you anticipate, the Justice and Home Affairs Council reaches a political agreement on the draft Convention at its meeting on 27 March, the Committee expects a full explanation of your reasons for over-riding scrutiny, including your response to the points set out above.

  I am sending a copy of this letter to the Chairman and Clerk of the European Scrutiny Committee in the House of Commons.

23 March 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