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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