Select Committee on European Union Twelfth Report

Letter from Lord Tordoff to Barbara Roche MP

  Thank you for your letter of 20 April. Sub-Committee E (Law and Institutions) has considered your response to the questions it raised on interception and data protection. It also had before it the latest consolidated text of the draft Convention (COPEN 32), the proposed new text on data protection (COPEN 25) and drafting amendments from the Council Legal Service (COPEN 27). I understand that COPEN 32 is intended to form the basis for a political agreement at the Justice and Home Affairs Council on 29-30 May. The Committee has accordingly decided, not without some reservations, to clear the draft Convention from scrutiny. In so doing, it would welcome your response to the points below.

  As your letter acknowledges, the Committee has given detailed consideration to the draft Convention throughout its progress. You will also be aware that the Committee has expressed considerable concern both with the substance of some of the provisions and with the process of negotiation. Since we reported on the draft Convention in February 1998 there have been substantial changes in its content and scope. We recognise that maintaining the flow of information to the Committee has been time-consuming for your officials and we appreciate their efforts very much. We nevertheless would wish to record our dissatisfaction with the attempts by the Council to secure political agreement on texts which are frequently incomplete and deposited shortly before JHA meetings, thus seriously hampering effective scrutiny by national parliaments. We understand that this is not a matter within your exclusive control, but we would urge you to register our concern within the Council.

  As regards the two matters raised in my letter of 23 March—interception and data protection—the Committee is not entirely satisfied with your response. Our first point concerned interception by one Member State of a target present in another Member State without the latter's technical assistance. The relevant provision is Article 20 in COPEN 32. As you explain in your letter, the expectation is that a Member State notified of an interception on its territory would be in a position either to consent or to prohibit the interception within 96 hours of notification. The possibility of an extension for up to eight days (including the initial 96 hour period) would only be likely to apply in complex or sensitive cases. Throughout this period, there would be a substantial dialogue between the intercepting and notified States. Notwithstanding, the Committee observes that, unlike earlier drafts, the present text fails to specify the consequences of a failure to reply within the extended eight day deadline. We would welcome your assurance that this matter will be dealt with in the Explanatory Report.

  The Committee has also considered your explanation for the omission from the draft Convention of a provision requiring the destruction of intercept material in cases where the notified State has not given its explicit consent to its use. You state that "some Member States have argued that it may be necessary to retain intercept product to justify any action taken on the basis of it, (for example to prevent a murder)". This argument is difficult to square with the text of the Convention. Article 20(4)(b) provides one exception to the prohibition of the use of intercept material without the explicit consent of the notified State, namely "taking urgent measures to prevent an immediate and serious threat to public security". The purpose of this narrow exception would seem to be to preclude the retention of intercept material as a source of intelligence, to serve either as a basis for action in non-urgent cases or to avert some future threat which is not immediate and serious. Taking your example, the retention of intercept material to justify a particular course of action by the police would have to fit within the exception in Article 20(4)(b)(ii), second indent. This would seem to depend on whether, at the time of the interception, the commission of murder presented an immediate threat to public security and required urgent measures on the part of law enforcement bodies. The Committee would welcome your views and, in particular, whether you accept its analysis of the exception.

  The Committee notes also that many of the footnotes in earlier texts clarifying the meaning of various provisions of the draft Convention (particularly those in Title III on interception) have been omitted from the text of COPEN 32. We would welcome your assurance that these matters will be dealt with in the Explanatory Report. The Committee would like to see the Report when a draft is available.

  The Committee regrets that your response does not meet any of the concerns expressed in my letter of 23 March with regard to the Convention provisions on data protection (now Article 23 in COPEN 32). The Committee concludes, from your comments, that the political will is lacking to agree a more favourable text. You do not mention Article 25 of the Naples II Convention which includes a specific reference to the 1981 Council of Europe Convention on data protection and also required the unanimous agreement of the Member States. The Committee has some difficulty in understanding why the inclusion of a similar provision in the Mutual Assistance Convention would meet with the degree of resistance you suggest. We would welcome a more detailed explanation of why the Government and other Member States consider it unacceptable.

  Finally, I have already raised with you (in my letter of 16 May) the question of Europol participation in joint investigation teams. The Committee has previously expressed concern about the application of Articles 15 and 16 of the draft Convention (on the criminal and civil liability of Member State officials) to officials from Europol and other international organisations or third countries operating on the territory of a Member State within a joint investigation team. The nature of their involvement and the extent of their liability should be clarified in the Explanatory Report.

  The Committee wishes to be kept informed of the outcome of the Justice and Home Affairs Council and expects to receive a copy of the draft Convention if, as you anticipate, a political agreement is reached.

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

25 May 2000

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