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
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