Select Committee on European Union Twelfth Report

Letter from Lord Tordoff to Barbara Roche MP, Minister of State, Home Office

  Documents 10938/99 COPEN 35, 11157/99 COPEN 39 and 11571/99 COPEN 43 on interception.

  Documents 11570/99 COPEN 42 and 11603/99 COPEN 44 on joint investigation teams.

  Document 11084/99 COPEN 37 on data protection.

  Sub-Committee E considered the above documents amending the draft Mutual Assistance Convention at its meeting on 10 November. As you know, the most recent consolidated version of the draft Convention, COPEN 11, remains under scrutiny. For the reasons set out below, the Sub-Committee has decided to clear the documents dealing with interception (COPEN 35, 39 and 43), subject to clarification of two points. It is holding the documents on joint investigation teams and data protection (COPEN 42, 44 and 37) under scrutiny.


  It is clear that the interception provisions of the draft Convention remain complex and controversial. The Sub-Committee noted that the proposed arrangements in COPEN 43 for intercepting a target present in another Member State are broadly satisfactory to the Government but that the definition of a criminal investigation for the purposes of interception in COPEN 39 is not. The Sub-Committee will continue to keep a watching brief on all aspects of interception under the draft Convention. It is content, on this basis, to clear the new documents dealing with interception from scrutiny, subject to clarification of two points of detail.

  First, while it is clear that the visited Member State may prohibit the use of intercept material as evidence in criminal proceedings, draft Article 18(3)(a) and (b) in COPEN 43 would not seem to prohibit any other use. Could, nonetheless, intercept material be used to support an application for the use or exercise of coercive powers, such as forcible entry? Secondly, under COPEN 35 the prohibition on the use or intercept material could be overridden if necessary to protect the rights of an accused person. COPEN 43 does not include this override power. Might this prejudice an individual's rights of defence?


  The Sub-Committee has noted the similarity between the text proposed in COPEN 44 on the status and liability of officials taking part in controlled deliveries, joint investigation teams and covert investigations and Articles 42 and 43 of the 1990 Schengen Implementing Convention relating to cross-border surveillance and "hot pursuit". You state in your Explanatory Memorandum that there would be no need to change UK law to give effect to the proposals in COPEN 44. By contrast, your commentary on the equivalent provisions of the Schengen Convention (submitted with the UK application to join parts of Schengen) states that primary legislation would be required. Why do you consider that primary legislation would be needed to give effect to Articles 42 and 43 of the Schengen Convention but not to the equivalent provisions of the draft Mutual Assistance Convention?

  The Sub-Committee would also find it helpful if you could explain how, in practice, would an individual in the UK suffering damage to person or property obtain redress from the Member State whose official caused the damage, as contemplated in draft Article Y.

  A further question arises with regard to the relationship between draft Article 13(1) and the new draft Articles proposed in COPEN 44. The latter only apply to "officials from a Member State other than the Member State of operation". However, Article 13(1) on joint investigation teams makes provision for the participation of officers from third (non-EU) countries, international organisations or bodies, and experts. Which rules would govern the status and liability of third country officials taking part in joint investigation teams?


  The Sub-Committee welcomes the Government's acceptance, in principle, of including within the Mutual Assistance Convention rules on the protection of personal data. The German proposal, however, gives rise to a number of concerns. First it is not clear from the text whether the proposed data protection provisions are based on, and consistent with, an objective standard such as the 1981 Council of Europe Convention on the protection of individuals with regard to the automatic processing of data and the 1987 Council of Europe Recommendation R(87) 15 regulating the use of personal data in the police sector. You draw attention in your Explanatory Memorandum to the potential scope for exchanging information under Article A. Under Article B(3), it seems that access to data may be refused on broad public interest grounds, in addition to any other grounds for non-disclosure under national law. Can you confirm that the rules proposed in COPEN 37 fully comply with Council of Europe requirements? In particular, do you consider that they provide adequate protection of individual privacy rights?

  Possible data protection concerns also arise in relation to the use of data by members of a joint investigation team. As you note in your Explanatory Memorandum on COPEN 42, Article 13(9)(b) would permit information to be used for a purpose other than that for which the joint investigation team was established. As mentioned above, officers from non-EU States or from international organisations or bodies may participate in joint investigation teams. What, if any, data protection safeguards and restrictions on the use of data would apply to such third country officials?

  The proposals in COPEN 37 do not include a requirement to establish or designate an independent body to oversee the application of the data protection rules. Most other Third Pillar Conventions recognise the need for a supervisory body to ensure effective controls on the use of data. This is also the case under the Schengen Implementing Convention. Which body or bodies, if any, would be responsible for supervising the application of the rules?

  You will doubtless wish to consult the Data Protection Registrar on the adequacy of the proposed text in COPEN 37. The Sub-Committee would be grateful for a summary of her views, when available.

  Finally, the Sub-Committee is concerned at the increasing fragmentation of data protection provisions in complex Third Pillar information systems. It would welcome a progress report on the Italian proposal to standardise data protection rules and supervisory bodies. Subject to agreeing on a satisfactory standard, would this not be a better way forward than drafting ad hoc rules in relation to each new Convention?

  The Sub-Committee looks forward to receiving your response.

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

11 November 1999

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