Select Committee on European Union Twelfth Report

Letter from Lorna Harris, Head MLA UK Central Authority, Home Office to Dr Christopher Kerse, Legal Adviser to the Select Committee on the European Union

  You have recently received an Explanatory Memorandum in relation to COPEN 18, the latest consolidated text of the draft Mutual Legal Assistance Convention. I understand that this will be considered by the Scrutiny Committees today.

  I received yesterday a further consolidated text, contained in document 7046/00 COPEN 19 which was produced as a result of discussions of COPEN 18 at COREPER on 15 and 16 March. In view of the discussions on this draft Convention which will take place at the meeting of the Justice and Home Affairs Council on 27 March, I was anxious that the Scrutiny Committees considered as up to date a text as possible. In addition to the amendments contained in COPEN 19, a discussion on the proposed text took place in a meeting of COREPER this morning, as a result of which further amendments to the text were agreed.

  The position therefore is that there are several alterations from the text contained in COPEN 18, and I would wish to draw these to the Scrutiny Committees' attention.

  1.  On page 4 of COPEN 19, there is a proposal by the Luxembourg delegation to amend Article 17(4). That was approved today at COREPER. This amendment is acceptable to the UK.

  2.  On page 4 of COPEN 19, also, there is a proposed declaration on Article 17. This was considered at COREPER today, and a new form of words has been agreed. Subject to final drafting, the text will now read as follows.

    "Declaration on the preparation of the application of the Convention on mutual assistance in criminal matters between the Member States of the European Union. With a view to an effective implementation of the Convention on mutual assistance in criminal matters between the Member States of the European Union, the Member States shall, within a year after the adoption of the Act establishing the Convention, consult each other on all practical and technical aspects related to the application of the provisions of the Convention, in particular the provision of Title III, taking into account the obligations in Articles 4 and 5 of the Telecoms Directive. The Commission shall be fully associated."

  This additional declaration is acceptable to the UK.

  3.  COPEN 19 contains amended text of Article 18(3)(a)(3). At COREPER today the text was further modified, so that the first sentence now reads as follows (amendment underlined) "in cases referred to in subparagraph (a)(2), requiring that any material already intercepted while the subject was on its territory may not be used or may only be used under conditions which it shall specify." The footnote to the text in COPEN 19 explains the differences in the text as compared with the text previously in COPEN 18. You will observe that the material alteration here is the removal of the sentence allowing the use of the intercepted material for the purpose of preventing the commission of serious crime. However, the footnote makes it clear that the Explanatory Report will indicate that Member States should show flexibility in the use of intercepted material in preventing an immediate and serious threat to public security. This proposal does not cause a problem for the UK.

  4.  Additionally, the footnote to this Article will contain a new form of words proposed in COREPER today by Denmark, covering the first indent to (b). Subject to final drafting, this indent will read as follows: "explain that in some cases, however, it might be necessary to use the material already intercepted in proceedings concerning claims for damages in relation to the interception carried out or action taken on the basis of Article 18(3)(b). Such limited use should not be considered contrary to a decision of the notified Member State pursuant to Article 18(3)(a)(3)." In particular this second sentence may be the subject of some further redrafting, but the thrust will remain.

  5.  Following COREPER today, too, there will also be an amendment to the third indent, so that the last line will read (amendment underlined) "crimes involving threats to human life, drugs offences and similar serious crimes." Both these proposed amendments are uncontroversial.

  6.  Article 18(3)(b) will be amended as in COPEN 19. This text was approved today in COREPER. Although the text is narrower than the UK had wished, since it is restricted to cases where there is an immediate and serious threat to public security, it is thought that the provisions in the Explanatory Report detailed in the footnote on page 37 of COPEN 19 go much of the way to meeting our concerns.

  7.  In relation to data protection, there was no support at COREPER today for the alternative wording for Article 20a(1) proposed by Luxembourg and contained on page 42 of COPEN 19. Accordingly, there will be bilateral discussions between Luxembourg and the Presidency to try to achieve agreement on a text in relation to this issue.

  I would be most grateful if these issues could additionally be placed before the Scrutiny Committees, and regret that the material has come in so late for their consideration.

22 March 2000

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