Select Committee on European Union Twelfth Report

Letter from Kate Hoey MP to Lord Tordoff

  I am writing to provide a full response to the points made in your letter of 3 December 1998 about the latest proposals on the interception provisions in the draft Mutual Legal Assistance Convention.


  You asked for further information about why we do not consider it appropriate for the Convention to apply to the security and intelligence agencies when they are acting "in connection with a criminal investigation".

  In general, mutual legal assistance is used for the purpose of "procuring evidence . . . for proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party" (Articles 1(1) and 3(1) of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959). To most other Member States, this is what is meant by "in the framework of a criminal investigation". It is clear to them that the interception provisions do not apply to intelligence gathering outside this framework (eg interceptions carried out by security and intelligence agencies under administrative authority solely for intelligence purposes). In the UK, however, we do not have judicially authorised interceptions and do not carry out interceptions for evidential purposes. Instead, all interception warrants issued by the Secretary of State are for intelligence purposes only.

  We have negotiated Article 12 on the basis that there should be no requirement for the interception to be "for the purpose of procuring evidence". "for the purpose of procuring evidence". This was to enable the UK's police and customs authorities to co-operate on interception matters for their criminal investigations even though there is a statutory prohibition on the use of intercept material in evidence. As presently drafted, however, Article 13 would be interpreted in the UK as applying not only to interceptions carried out by police and customs authorities, but also when the security and intelligence agencies are tasked to gather intelligence on serious crime. Given that there is no definition of serious crime in the Convention, there is also a danger that this would apply to intelligence gathering for national security purposes where this involves a criminal element (eg counter-terrorism).

  Our main concern is to safeguard the operational effectiveness of those agencies whose main function is the protection of national security (for example, in 1997-98 the Security Service deployed only 5 per cent of its resources on serious crime work). The purpose of giving the agencies a statutory remit to work in support of law enforcement against serious crime was to enable them to bring to bear their particular expertise and resources for gathering intelligence on serious crime. This intelligence is passed to police and customs authorities to help them gather evidence of serious criminal offences and to bring the perpetrators to justice.

  Our security and intelligence agencies depend, to a great extent, on the use of techniques and capabilities which must be kept secret in order to preserve their effectiveness. The agencies, therefore, deploy against their criminal targets the same kinds of sensitive techniques which they use, for example, against terrorists and other threats to national security. Their operations, and their operational methods, could be jeopardised if they were subject to the disclosure requirements in Article 13 of the draft Convention. This, in turn, could damage the effectiveness of the UK's response to serious threats to its own citizens (eg drug trafficking, organised crime etc).

  The UK is therefore negotiating on the basis that the Convention should apply to criminal investigations carried out by police and customs authorities (the UK equivalent of the position in other Member States), and not to intelligence gathering operations carried out by security and intelligence agencies.

Article 13(5)

  Your letter rightly points out that Article 13(5) would go a considerable way towards meeting our concerns. In fact, it is a UK proposal. It is based on Article 2(b) of the 1959 Convention on Mutual Legal Assistance which states that "assistance may be refused if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country". Unfortunately, Article 13(5) does not have the support of most other Member States.


  You ask for an explanation as to why the notification requirement would be bureaucratic and burdensome. Unfortunately we are unable to produce figures relating to the number of occasions on which the police or customs might be obliged to notify another Member State of interception of a target on its territory. But we can confirm that a significant proportion of targets—usually involved in drug trafficking—move regularly between the UK and other Member States. From time to time, intercept product will be received when the target is connected to the UK national network even though he/she is on the territory of another Member State (including territorial waters). It is difficult to know whether this will become more common in the future. However, it is important that the operational effectiveness of law enforcement agencies is not hindered by unnecessary complications at the crucial stage of an investigation when a drug trafficker enters the country.

  Under the UK's proposal, the formal requirement to notify would not apply where the target is on the territory of another Member State for less than 24 hours. This would ensure that the scrutiny of notifications is concentrated on cases where the target is on the territory of another Member State for a reasonable period of time and is not simply passing through. Notification for a period of less than 24 hours would provide very little protection for the individual since the visited Member State would be unable to react quickly enough to make the notification worthwhile.

  It is also worth comparing the proposed regime for interception with the approach in other areas of law enforcement work where the subject of a criminal investigation is on the territory of another Member State. In such cases, the police and Customs and Excise can apply for a court order to obtain bank statements, credit card details and other personal information held in the UK without involving the Member State in which the subject is located.


  In response to your question about the resource implications for satellite operators, our understanding is that Iridium has met the initial infrastructure costs of providing an interception facility. Indeed, we believe that some Member States require telecommunications operators to provide an interception facility as part of the standard licensing conditions in their domestic legislation. We are reviewing how to deal with the cost implications of interception in the UK as part of the Government's wider review of interception legislation. A consultation document will be published in due course.

  Finally, you will wish to note that we do not expect a substantive discussion of these issues at the Justice and Home Affairs Council on 12 March. I am submitting separately an Explanatory Memorandum on JUSTPEN 7 (6195/99) which deals only with the service provider solution.

  I hope this is helpful. I am copying this letter to Jimmy Hood (Chairman of the House of Commons European Scrutiny Committee), Chris Mullin (Chairman of the Home Affairs Select Committee) and Tom King (Chairman of the Intelligence and Security Committee).

3 March 1999

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