Select Committee on European Union Thirty-Eighth Report



30. The Mutual Legal Assistance Agreement does not contain any provision equivalent to Article 13 of the extradition instrument providing safeguards in death penalty cases. There is only a reference in the Preamble to "due regard for rights of individuals and the rule of law". Mr Ainsworth noted that "this is a difficult area", as it is not at all clear that assistance should be a priori refused in all cases that may involve the imposition of the death penalty (which could include serious terrorist offences). The Minister noted that decisions will be taken on a case-by-case basis (QQ 108, 110). We welcome the Minister's assurance that, notwithstanding the absence of specific treatment of the capital punishment issue in the Agreement, the UK could—should it ever so wish—properly decline to assist in such cases or could properly subject any cooperation to conditions.


31. The 2001 Protocol to the EU Convention on Mutual Legal Assistance contains several provisions on access to bank information. As the Explanatory Memorandum of 13 May 2003 points out, Article 4 of the EU-US Agreement on Mutual Legal Assistance is designed, in effect, to extend to the US certain of those Protocol provisions (para. 24). These are of particular relevance to international efforts to combat money laundering. However, Article 4(1)(b), which is not drafted with elegance or clarity, has no direct parallel in the 2001 Protocol.

32. Article 4(1)(b) provides for mutual legal assistance for the purpose of identifying information regarding natural or legal persons convicted "or otherwise involved in a criminal offence", information in the possession of "non-bank financial institutions" or "financial transactions unrelated to accounts". Mr Ainsworth was asked to clarify the meaning of these rather vague terms. He understood the term "otherwise involved" to mean someone who is under investigation and confirmed that the Government would require "some assurance that there was an actual investigation going on" (QQ 112, 113). Identification might also involve innocent third parties whose accounts might be used for money laundering without their knowledge (Q 114). "Non-bank financial institutions" would include organisations such as bureaux de change (QQ 116, 117) and "financial transactions unrelated to accounts" would also involve bureaux de change (Q 118). We welcome the Minister's partial clarification of the terms included in Article 4(1)(b) and his assurance that assistance would be provided only if an actual investigation was going on and the assistance requested was proportionate. The terms, however, remain broad and the provision as drafted could extend to a wide range of information about legitimate everyday transactions of, as the Government admitted, "innocent third parties".


33. Article 5 enables the establishment of joint investigation teams to operate in the respective territories of the US and the Member States involved. The procedures under which these teams will operate will be "as agreed between the competent authorities responsible for the investigation or prosecution of criminal offences as determined by the respective States concerned" (Article 5(2)). It is therefore not clear whether the operation of these teams, including aspects such as the liability of participating members, would be determined by legislation—and would therefore be subject to parliamentary scrutiny—or would merely take the form of an executive agreement between prosecutors or law enforcement authorities. The approach here is in sharp contrast with the regulation of joint investigation teams in the EU, where specific rules on their powers, criminal and civil liability and data protection issues have been established by Third Pillar legislation.[26] The Minister's response was not entirely clear-cut. He noted that the UK/US mutual legal assistance treaty "does not prevent joint investigations from being established" and his officials noted that it is "quite likely perhaps for the Chief Constable of the force here to be legally answerable for torts" (Q 121). It was then noted that there was provision in the Police Act 1996 (as amended) to deal with such teams in relation to co-operation with EU members and that "similar arrangements no doubt would be applied" (Q 125).


34. Article 8 allows for mutual legal assistance to be provided to national and "other" administrative authorities investigating a case with a view to a criminal prosecution, or to referral of the case to criminal investigators or prosecution authorities. It is to be read in conjunction with the detailed Explanatory Note appended to the Agreement. The Government confirmed that assistance will not be provided if the requesting authority does not have proper competence in criminal matters (Q 126). We welcome this assurance.


35. Article 9 contains a series of data protection safeguards, but no reference is made to specific data protection instruments such as the 1981 Council of Europe Data Protection Convention, the EC data protection Directive and the EU Charter of Fundamental Rights.[27] This may be a cause of concern in view of the different systems of protecting data in the EU and the US. The issue was highlighted during the scrutiny of the Agreement between Europol and the US on the exchange of personal data which the Committee carried out last year[28] and also by the European Parliament Citizens' Rights Committee, which said, in relation to the EU-US Mutual Legal Assistance Agreement, that there were "no common principles on which to act with regard to (a) the correct use of data (b) the integrity thereof and (c) the rights of the data subject".[29] Article 9(2)(b) further states that "generic restrictions with respect to the legal standards of the requesting State for processing personal data may not be imposed by the requested State as a condition … to providing evidence or information".[30] We urge the Government to ensure that a high level of data protection, consistent with EU legislation and the 1981 Council of Europe Data Protection Convention, is required as a condition for the provision of information to the US.


36. The Agreements raise important questions to which the attention of the House should be drawn. We make this Report to the House for information.

26   Council Framework Decision of 13.6.02 on joint investigation teams, OJ L 162, 20.6.2002, p 1. Back

27   See also the concerns of Statewatch, noting that no rights of access to data held or rights of correction and deletion are included in the agreement and no conditions are set out prohibiting passing information to third parties. See Back

28   See in particular the letters of Lord Grenfell to Bob Ainsworth dated 20 November and 4 December 2002, Back

29   Op. cit., p 6. Back

30   The Explanatory Note on the Agreement further states that: "A broad, categorical, or systematic application of data protection principles by the requested State to refuse co-operation is therefore precluded. Thus, the fact [that] the requesting and requested States have different systems of protecting the privacy of data (such as that the requesting State does not have the equivalent of a specialised data protection authority) or have different means of protecting personal data (such as that the requesting State uses means other than the process of deletion to protect the privacy or the accuracy of the personal data received by law enforcement authorities), may as such not be imposed as additional conditions under Article 9(2)(a)." It is also to be noted that under Article 9(4) a requested State may apply the relevant provision of its bilateral treaty in substitution where doing so will result in less restriction on the use of information or evidence. Back

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