Select Committee on European Union Twelfth Report

Letter from Barbara Roche MP to Lord Tordoff

  Thank you for your letter of 23 March.

  2.  I appreciate the detailed consideration which your committee has given to this draft Convention, and I have considered your comments very carefully. In the event, as you will be aware, it was not possible to agree the draft Convention at the March Council meeting, but substantial progress was made, and we are hopeful that agreement will at last be obtained at the May meeting of Council.

  3.  You will be aware, too, that the matter which remains to be agreed between Member States is data protection, and, in order to meet the remaining specific concerns of Luxembourg, there will shortly be a new text proposed which will be submitted for scrutiny in the usual way. A full explanatory memorandum at that time will explain the Government's position in relation to that and any other outstanding issues. However, in the meantime, I am anxious to respond directly to the points you raise in your letter.

  4.  You state that, in accepting the additional eight day period during which a Member State may continue interception, the Government has reversed its previous position in which it accepted "silence being equivalent to refusal". To clarify the position, it may be helpful if I provide a more detailed explanation of the intention of Article 18(3). The Convention will place the notified Member State under a legal obligation to respond, without delay, and no later than within 96 hours. It would be a breach of the Convention, and a very serious matter, for the notified Member State to provide no response (ie to be silent). In general, it is expected that the notified Member State will reach a firm decision within 96 hours on whether to allow the interception to continue or to require the interception to be terminated. In the UK, we are confident that, in the vast majority of cases, we will be able to reach a firm decision within the 96 hour deadline.

  5.  The new text provides the notified Member State with the opportunity to require a short extension of the original 96 hour period to consider carefully whether the interception is acceptable under its national law. Some Member States argued that this might be necessary in complex or sensitive cases. Nevertheless, there must always be a response from the notified Member State specifically requiring an extension of up to eight days (which includes the original 96 hours) and justifying, in writing, why this extension is necessary. Given the need for the intercepting Member State to know as soon as possible whether it has permission to use the intercept product, it is inevitable that there will be substantial dialogue between the intercepting Member State and the notified Member State until a final decision is reached. There will be no "silence" during this period. In all circumstances, the Convention requires a final decision to be made within the eight day period.

  6.  This was a compromise reached during negotiations in the run-up to the Justice and Home Affairs Council. We believe this is an acceptable solution, and I hope that the Committee will agree.

  7.  You also suggested that the broader restriction on the use of intercept product should include a specific obligation to destroy the intercept product. While we understand your thinking behind this suggestion, this will not be acceptable to some Member States. The broader restriction on the use of the intercept product provides greater protection for individuals. But some Member States have argued that it may be necessary to retain intercept product to justify any action taken on the basis of it (for example, to prevent a murder). In such circumstances, the intercepting Member State may need subsequently to explain during a trial why the police took a particular course of action. This was an important principle for a few Member States, and the text again reflects what we consider to be an acceptable compromise.

  8.  This does not prevent us from asking the intercepting Member State to terminate the intercept and to destroy the intercept product. In most cases, we would expect a request to destroy the intercept product to be granted. In the UK, we would also expect to comply with a request from another Member State to destroy the intercept product. Indeed, the Interception of Communications Act 1985 and the Regulation of Investigatory Powers Bill require the intercepting agency to destroy intercept product when it is no longer necessary for the purposes set out in the legislation.

  9.  Finally, you suggested that the Explanatory Report to the Convention should contain a precise definition of the category of crimes to be included as those presenting a serious threat to public security. We agree with you, and will take this up when the Explanatory Report to the Convention is under negotiation.

  10.  I shall of course submit for scrutiny any further proposals on the Convention in the usual way and provide the Committee with a revised consolidated text of the Convention as soon as it is available. In the meantime, I hope you will clear Article 18(3) from scrutiny.


  11.  In relation to data protection, you have identified two principal concerns. The first concern, shared with views expressed by the Data Protection Registrar, is that Article 20a of the draft Convention contains a lack of precision regarding the use of data communicated under the Convention. Articles 20a(1)(a) and (b) list those alternative issues for personal data provided under the Convention which are to be permitted. This is an attempt for the first time to restrict onward use of such information, which at present may not be controlled at all. While the provision may not meet the standard suggested by the Data Protection Registrar, or indeed yourself, it is an attempt to control unauthorised and inappropriate use, and is as far as many Member States feel able to go. It is also unlikely that the UK Government could obtain any more favourable provision through negotiation which would be acceptable to other Member States.

  12.  Your second concern is that despite the European Union wide ratification of the 1981 Convention, individual derogations permitted under Article 9(2)(a) of the Convention, weaken its force, and that specific reference to this Convention would be appropriate. However, this matter was discussed at length during the meetings of the working group on this matter and the clear consensus emerged that such a specific reference would not be agreed. In the circumstances there would be no purpose in the UK insisting on such provision at this stage in the negotiations.

  13.  I note that you are retaining COPEN 18 under Scrutiny.

  14.  I am sending a copy of this letter to Jimmy Hood, Chairman of the European Scrutiny Committee.

20 April 2000

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