Select Committee on European Union Twelfth Report

Letter from Kate Hoey MP to Lord Tordoff

  Thank you for your letter of 29 October in which you seek clarification on a number of points about the "service provider solution" for the interception of satellite telephones. I should also like to take this opportunity to inform you of the latest position on the interception provisions in the draft Convention.

  In answer to your first question, you will be reassured to know that the text of the interception provisions in Article 12 of the Convention remains broadly consistent with the approach endorsed in your Committee's report "Mutual Assistance in Criminal Matters" (14th Report 1997-98). I enclose for your information a copy of the Council document JUSTPEN 108 which includes the latest text of the Convention (in accordance with normal practice, we have removed the references to the negotiating positions of individual Member States).


  We had hoped that the interception provisions could be agreed quickly. Unfortunately, difficulties have arisen over the desire of other Member States to extend the scope of the interception provisions to situations where no mutual legal assistance is required. As a result, there is no prospect that there will be agreement on a final text at the Justice and Home Affairs Council on 3-4 December (although there are other outstanding issues on data protection, the jurisdiction of the European Court of Justice and the territorial application of the Convention). The Council will be addressing a number of questions raised in the Working Group and now included in JUSTPEN 108. This letter explains the position which we shall be taking on these questions.

  We have always been very reluctant to extend the scope of the Convention in the way favoured by the other Member States. We take the view that the purpose of the Convention is to provide for mutual legal assistance, not to regulate the use of interception within the EU. We foresaw that attempts to regulate interception in this manner would inevitably highlight differences between Member States' own domestic legislation. That has proved to be the case, the fault line running between the other Member States, which share broadly comparable legal regimes, and the UK, where our law and practice has developed along different lines.

  The main difficulties arise in connection with Article 13, which would oblige an intercepting Member State to inform another Member State whenever the target of an interception is on its territory even where no technical assistance is required from the other Member State.

  One of the difficulties which has been discussed in the Working Group concerns whether these obligations (indeed, the Convention as a whole) would apply to the operations of Member States' security and intelligence agencies. The consensus appears to be that it should not. The other Member States are confident that, in their cases, this objective is secured by the language of the Convention which refers to judicially authorised interception "in the framework of a criminal investigation". Their security and intelligence agencies undertake interception either under administrative authorisation (eg by the Interior Minister) or under judicial warrant issued in circumstances not involving a "criminal investigation" (eg in the context of national security).

  The problem for us is that the Convention, as presently drafted, would apply to the UK's security and intelligence agencies. Our law does not permit us to make the kinds of distinctions described above. Our interception legislation applies the same regime to law enforcement, security and intelligence agencies regardless of the purpose for which the warrant is issued. For example, the Security Service may obtain a warrant on the grounds that it is necessary in the interests of national security. Or it may obtain a warrant in pursuit of its statutory function to support the law enforcement agencies in the prevention and detection of serious crime. In each case the law and procedures are the same.

  As a matter of principle, we think it is entirely inappropriate that the draft Convention should have the effect of regulating interception by security and intelligence agencies, or interceptions related to national security (Question E(1) in JUSTPEN 108). We have negotiated Article 12 on the understanding that it would apply only to interception warrants issued to the police and Customs and Excise for the purpose of the prevention and detection of serious crime. We are negotiating Article 13 on the same basis.


  Article 13 also fails to take account of operational and technical realities. Mobile phone systems do not respect national borders. There is inevitably an overlap in border areas in which it is possible to use one Member State's national network whilst being physically located on the territory of another Member State.

  Article 13 would have the effect of placing an obligation on law enforcement agencies to provide details of an interception to a visited Member State even when the target is on its territory for a very short period. In operational situations, this could prove very bureaucratic and burdensome. There is also little to be gained by informing the visited Member State in such circumstances. It could be impossible for it to react before the target of the interception leaves its territory.

  The UK is therefore negotiating to minimise the burden on its law enforcement agencies by seeking an exemption from the duty to notify where the interception is taking place on Member States' own national networks and the target of an interception is on the territory of another Member State for fewer than 24 hours (Question E(2) in JUSTPEN 108).


  Article 13 allows the visited Member State to refuse to allow the interception of a target on its territory where it would be contrary to fundamental principles of national law. It is not clear to us what is meant by fundamental principles of national law. We have therefore argued that, if the Convention is to regulate interception where no technical assistance is required, this should be consistent with the test of national law in Article 12 (Question E3(a) in JUSTPEN 108).

  There is no consensus in the Working Group on whether the visited Member State should be in a position to impose restrictions on the use of material already intercepted. This is a difficult issue. The intercept material is likely to have been used operationally as soon as it was received. The UK is negotiating on the basis that it could accept a prohibition on the use of such intercept material as evidence (Question E3(b) in JUSTPEN 108).


  The UK does not record intercept material for evidential purposes. An obligation to do so would place a considerable resource burden on the UK's law enforcement agencies. We are therefore negotiating the text on the basis that there should be no obligation to record the intercepted communication unless the requested Member State is unable to provide immediate transmission. In practice, we think it is very unlikely that we would be unable to provide immediate transmission. We do not think there should be an obligation on the requested Member State to record the intercepted communications simply because the requesting Member State has not invested in the simple technical equipment necessary to receive the interception in real-time (Question E(4)(f) in JUSTPEN 108).


  You will note from JUSTPEN 108 that discussions on the service provider solution are still at an early stage. However, I will do my best to answer the questions in your letter of 29 October.

  As I said in my letter of 21 September, the service provider solution will apply only to the interception of targets on the territory of the intercepting Member State. Given that no technical assistance is required from the Member State with the satellite base station, the interception will be conducted in the same way as if the target is using a normal mobile phone. The system will automatically terminate the interception if the target moves outside the territory of the intercepting Member State. In the UK, we will apply the same safeguards, oversight and complaints procedures as exist for interception by public telecommunications operators generally.

  Discussions on the service provider solution do not, at present, envisage interception occurring outside the territory of the intercepting Member State. There are two options, both of which are consistent with the approach endorsed by the Committee.

  First, interception of a target in another Member State could occur at the satellite base station as previously envisaged under the provisions of Article 12 and subject to the existing safeguards. Secondly, it is possible to imagine all Member States having ownership of interception of satellite telephones on their territory by ensuring that the technical systems allow interception only via the service provider (in effect, each Member State would become a requested Member State for interception on its territory). This would ensure that the "double barrier" would operate to ensure that interception occurs only when the national law of the requesting and requested Member State is satisfied.

  You also expressed concern about the resource implications of imposing the service provider solution on satellite operators. Article 14 of the latest text of the Convention places the responsibility for meeting the costs incurred by telecommunications operators with the requesting Member State. Nevertheless, I should emphasise that the Presidency has not proposed that the service provider solution for interception should be a pre-condition for establishing a satellite ground station within the EU. Indeed, this solution is presently being offered only by Iridium. We do not anticipate that the Iridium solution will have significant resource implications for the UK.

  Finally, you also ask whether the UK could accept that we should have no involvement in or control over intercepts originating outside the UK. This would depend on the nature of the remote access system at the satellite base station. We would be willing to consider allowing other Member States to make use of any service provider solution offered by a satellite operator on UK territory, but only for the purpose of intercepting targets on the territory of the intercepting Member State.

  I am copying this letter to Jimmy Hood (Chairman of the Commons European Legislation Committee) and Chris Mullin (Chairman of the Home Affairs Select Committee). I am also sending a copy to Tom King (Chairman of the Intelligence and Security Committee) given the references to interception by the security and intelligence services in JUSTPEN 108.

30 November 1998

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