Select Committee on European Union Twelfth Report

Letter from Dr Christopher Kerse, Legal Adviser to the Select Committee on the European Union, to Lorna Harris, Judicial Co-operation Unit, Home Office

  Further to our telephone conversation on Tuesday (29 February), I thought it might be helpful to clarify a number of practical matters relating to the draft Mutual Assistance Convention. I understand that the intention remains to reach a political agreement on the Convention at the Justice and Home Affairs Council on 27 March. Before then, you have indicated that there will be further documents to be submitted for scrutiny. As I have explained, Sub-Committee E (Law and Institutions) is not proposing to meet on 15 March. The last opportunity it will have to consider the draft Convention will be on 22 March. To prepare for that meeting, I will need to have the documents and accompanying Explanatory Memorandum at the latest by the preceding Wednesday morning. Those documents, any outstanding points from the Minister's letter of 24 February and her reactions to the Statewatch paper will be put before the Sub-Committee on 22 March.

  We have identified a number of discrepancies between your assessment of the scrutiny position on various Articles of the draft Convention (set out in Annex A to the Minister's letter) and our own. Most are not significant. For example, Articles 4, 5, 10, 14, 21 and 22 are not, as the Minister suggests, identical to the equivalent provisions of the draft Convention printed with our Report. The most significant difference concerns Article 10. As previously drafted, this did not extend to the taking of evidence by video link from an "accused person". The Minister has responded to a number of questions raised by the Committee with regard to Article 10. The Government has not yet indicated, however, whether it intends to opt out of that part of Article 10 (paragraph 9) concerning an accused person.

  The Annex states that all the interception provisions have been cleared from scrutiny. While this is correct, Lord Tordoff stated in his letter of 2 December 1999 that the Committee was clearing the provisions in the expectation that there would be no further changes. A revision of Article 18(3) diluting or reversing the principle of explicit consent to an interception from another Member State might be considered by the Committee to be a significant change.

  Finally, the Committee's consideration of the draft Convention on 22 March would be greatly assisted by an assurance that the Data Protection Registrar has been fully consulted on the Convention and is content with the proposed data protection provisions. In addition, as I mentioned on the telephone, the Committee would welcome greater clarity on the involvement of Europol officials in joint investigation teams and, in particular, the level of immunity they would enjoy.

  I hope you find these comments helpful.

2 March 2000

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