Select Committee on European Scrutiny Ninth Report


PROTOCOL TO THE CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS


(a)
(21431)
9843/00


(b)
(21913)
12825/00


(c)
(21914)
14352/00


(d)
(22060)
5268/01


(e)
(22152)
6060/01



Draft Convention on improving mutual assistance in criminal matters,
in particular in the area of combating organised crime, the laundering
of the proceeds of crime and financial crime.


Draft Convention on improving mutual assistance in criminal matters.




Draft Convention on improving mutual assistance in criminal matters.




Draft Protocol established by the Council in accordance with Article 34
of the Treaty on European Union to the Convention on Mutual
Assistance in Criminal Matters between the Member States of the
European Union.

Draft Protocol established by the Council in accordance with Article 34
of the Treaty on European Union to the Convention on Mutual
Assistance in Criminal Matters between the Member States of the
European Union.


Legal base: Article 34(2)(d) EU; consultation; unanimity
Department: Home Office
Basis of consideration: EMs of 27 January 2001 and 14 March 2001
Previous Committee Report: HC 23-xxix (1999-2000), paragraph 7 (15 November 2000)
To be discussed in Council: May 2001
Committee's assessment: Politically important
Committee's decision: (a) to (d) Cleared
(e) Not cleared; further information requested

Background

  4.1  This proposal is intended to improve the speed and efficiency of mutual assistance in criminal matters by removing certain grounds on which Member States can currently refuse to co-operate and by imposing some new, formal obligations. When we last considered document (a) (in November), we left it uncleared and raised a number of questions with the Minister of State at the Home Office (Mrs Barbara Roche).

  4.2  Early in the new year, the Minister deposited documents (b) and (c), together with an Explanatory Memorandum which addressed most of our questions. Shortly afterwards, she deposited two further documents, (d) and (e), and another Explanatory Memorandum. As each new document has superseded its predecessor, our report concentrates on document (e), which is the latest text.

Key provisions of document (e) and the Government's view

  4.3  The proposal has been re-drafted as a Protocol to the EU Convention on mutual assistance in criminal matters of 29 May 2000,[16] rather than a Convention in its own right. In consequence, the recitals have been amended and Article 1 deleted. The Government supports this change which means that relevant provisions in the 2000 Convention, such as those on data protection, will apply to this proposal.

  4.4  Article 2, which provides for the removal of the dual criminality requirement for requests for search and seizure, continues to be problematic. The principal change in document (e) is that a new Article 2.4 now provides an opt-out. However, the Explanatory Memorandum reports that there is still little consensus in negotiations and we now understand that there is a possibility that the Article will be deleted.

  4.5  In relation to Article 5, the Minister states:

    "The original Article has been divided into two separate Articles. Article 5 deals with requests for provision of lists of all of the bank accounts of a natural or legal person who is being investigated or prosecuted. Article 5a covers requests for provision of information on transactions within bank accounts, both historical information and monitoring for a specified period in the future...

    "As presently drafted, Article 5.1 sets up an absolute obligation to provide the list of bank accounts in response to a request. This would not allow for domestic judicial control over, and approval of, the request, other than to ensure that the terms of the Protocol have been met. The Government also believes that the scope of application is too wide, the power being available in connection with any offence attracting at least two years imprisonment in the requesting State...It is the Government's view that the scope of application must be tightly restricted to those cases that are so complicated that they require additional investigative tools. Furthermore, provision of lists of bank accounts should only be possible under judicial control and approval in the requested State. Consequently, the Government would seek to limit the scope of both Article 5 and 5a to investigations into benefit from criminal conduct and secure changes to the text to allow judicial oversight in the requested State. This would provide more proportionate and focused powers in Articles 5 and 5a, helping to address the practical concerns previously articulated by the British Banking Association and the Building Society Association.

    "Article 5b states Member States should impose an obligation on banks and other financial institutions that have provided information under Articles 5 and 5a not to disclose that fact to the customer concerned. Subject to the final decision on Articles 5 and 5a, the Government believes this is reasonable and is in keeping with existing provisions concerning 'tipping off' (e.g. with regard to money-laundering). It does not appear to raise any difficult issues of principle.

    "Article 5c extends the scope of Articles 5, 5a and 5b to include insurance companies and other financial institutions. This does not cause any particular difficulty."

  4.6  Article 6 has been divided into two, with 6.1 dealing with the obligation on officials of a requested state to inform the requesting authority if it considers a supplementary request would be appropriate, and 6.2 dealing with additional requests. The Minister supports the pragmatic nature of these provisions which promote a more co-operative and constructive approach to executing mutual assistance requests.

  4.7  Article 8.1 currently states that "essential interests" is the only ground on which a request for mutual assistance in a case of money laundering or serious organised crime could be refused. The Minister considers that the text needs redrafting to make it clear that this would not remove any grounds for refusal (such as dual criminality) which might be included in, and be applicable to, individual instruments. She continues:

    "The Government believes it would be appropriate to retain the possibility to refuse a request if an essential interest was at stake... although such refusals are likely to be extremely rare, and it would be right in those circumstances for the requested State to provide reasons for its refusal. The Council could examine those reasons under the terms set out in Article 8.2.

    "The Government is not attracted to the formal dispute resolution mechanism in Articles 8.3 and 8.4 [involving the establishment of an ad hoc committee] and is inclined to argue for deletion on the grounds that the mechanism is unnecessarily bureaucratic and unwieldy."

  4.8  The Minister tells us that the main financial implications arising from the proposal relate to the costs to banks and other financial institutions in relation to the provisions of Article 5. The Government would intend to limit those costs by arguing for the limitation on scope detailed in 4.5 above.

  4.9  The Minister also tells us that, when the proposal is adopted, it will require a Council Act, which will need to refer to both Articles 31(a) and Article 34(2)(d) EU.

The Committee's questions

  4.10  Most of the questions we raised in relation to document (a) have either been addressed in the Explanatory Memorandum of 27 January, or have been overtaken by textual amendments.

  4.11  Both Explanatory Memoranda have addressed our request to be kept informed of the Government's stance on Articles 2 and 5, although the issues are still ongoing. As Article 4 has been deleted, our question about the voting procedure is no longer relevant.

  4.12  In relation to our question about Member States' reservations, we note that Article 2 has been redrafted in such a way as to remove the requirement on Member States not to invoke any of their reservations or declarations with respect to Article 5 of the 1959 Council of Europe Mutual Legal Assistance Convention in cases involving other Member States. To some extent, therefore, our question has been superseded. We would still like to know the Minister's view on the principle involved, however. Similarly, the Minister has not directly answered our question about whether the scope of some of the Articles should be limited to financial crime.

  4.13  The issue of data protection has been resolved to some extent by the redrafting of the proposal as a Protocol with the result that the data protection provisions of the 2000 Convention will apply. (However, the Minister will remember that we were critical of those provisions, considering them to be weak.)

Conclusion

  4.14  We thank the Minister for her full Explanatory Memoranda which helpfully charts the development of this proposal to date. We note that one way in which it appears to be making progress is through the deletion of controversial Articles, which at least has the effect of facilitating our scrutiny.

  4.15  Although the Minister has answered most of our questions and made the Government's position plain, we are unwilling to lift the scrutiny reserve while the uncertainties about Articles 2 and 5 remain. We therefore ask to be informed of developments in relation to those two Articles in good time before any substantial discussion of the proposal in Council. We are, however, content to clear documents (a), (b), (c) and (d), since they have been superseded by document (e) which remains uncleared.


16  (21233) 7846/00; see HC 23-xix (1999-2000), paragraph 14 (24 May 2000). Back


 
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