Letter from Kate Hoey MP to Lord Tordoff
Thank you for your letter of 4 March. You will
now have received my substantive reply of 3 March to your letter
of 3 December about the interception provisions in the Convention.
I deal below with the other matters which you have now raised.
ARTICLE 9(9) HEARINGS
The Government takes the view that Article 9(9)
provides adequate safeguards for the protection of the rights
of the accused, the most important of which is that the hearing
of an accused person would not take place without the accused
person's consent. The provision is also entirely permissive in
nature, allowing for Member States to apply it "at their
discretion" and "where appropriate". The manner
in which the hearing would be carried out would also be subject
to the agreement of the Member States concerned. There would therefore
be no obligation to hold such a hearing and we would judge each
request on its individual merits. For these reasons the Government
does not see that there is a need for the Council to adopt legally
binding rules and, indeed, the footnotes to Article 9(9) explain
that it will be stated in the explanatory report "that the
use of video conference will be allowed for accused persons even
prior to the possible adoption by the Council of a legally binding
instrument for the protection of the rights of accused persons".
The Government would of course give full and careful consideration
to any proposals for such an instrument which may be made in due
The Convention does not define an "accused
person" and the term may therefore have different meanings
in different Member States. But a principal purpose of the Convention
is to enhance co-operation and remove obstacles to obtaining and
providing assistance. We believe that Member States would interpret
the term flexibly. We ourselves would interpret it to include
not only a person who has been charged with an offence but also
an individual who is suspected of an offence at the preliminary,
pre-trial, stage of an investigation. The Government envisages
that pre-trial suspects are more likely than charged persons to
wish to participate voluntarily in hearings by video conference.
In particular, a suspect might be able quickly and conveniently
to eliminate himself from the enquiry.
The Government is still considering whether
opting-out of Article 9(9) would, or would not, be appropriate.
Parliament will be informed of the decision which is taken and
of any subsequent change to the decision.
You note that requests for hearings by telephone
conference are subject to the "fundamental principles of
law" of the requested State and ask how that can be reconciled
with the proposal that such a hearing should be supervised by
a police, rather than a judicial, authority in the UK.
The reference in the proposed Article XX to
the "fundamental principles of law" relates to the question
whether or not the requested Member State should provide the assistance
sought. That decision is one which the Government contemplates
would be made by or on behalf of the Secretary of State or, in
Scotland, the Lord Advocate, in the particular circumstances of
the individual request. Once a decision had been made to agree
to the request, the provision of the assistance would essentially
be a matter of implementing the purely practical arrangements
agreed between the UK and the other Member State concerned. The
police officer would not himself have to deal with questions of
law, but would simply be required to: identify the person to be
heard eg by production of a passport; ensure that he was co-operating
on a voluntary basis; and provide a telephone line to the authority
in the requesting Member State.
Under cover of a letter of 9 March to Jimmy
Hood MP, Chairman of the European Scrutiny Committee, into which
you were copied, I explained that the Government is now negotiating
on the basis that we can accept the principle of including in
the Convention an Article granting the ECJ jurisdiction equivalent
to that which it would have were the Convention to be adopted
on the basis of the Amsterdam Treaty.
You ask about the criteria which the Government
has in mind in deciding whether or not to make the Declaration
provided for under Article 35(2) of the revised Treaty on European
Union, which would accept the jurisdiction of the ECJ to give
preliminary rulings in respect of the legal instruments identified
in the Treaty and their implementing measures.
The Government takes the view that, given the
once and for all nature of such a declaration, making it could
give rise to significant difficulties of both principle and practice.
Once made, such a declaration would amount to a "blank cheque"
as it is not possible to predict what Third Pillar measures will
in future be brought forward and what the possible advantages
and disadvantages of ECJ preliminary rulings jurisdiction would
be with regard to those measures. The Government would certainly
not wish, for example, to be placed in the position of having
to obstruct a draft instrument, which in every other respect was
acceptable, solely because in the particular circumstances of
the case preliminary rulings jurisdiction by the ECJ would be
It should also be borne in mind that the Treaty
of Amsterdam extends ECJ preliminary rulings jurisdiction to implementing
measures which, under the voting arrangements provided for in
the new Article 34, could be agreed against the wishes of perhaps
as many as a third of the Member States. Such implementing measures
could relate to quite sensitive issues and Member States might
therefore be faced with having to give them legal effect, without
any clear idea of how the ECJ might choose to interpret them.
For all these reasons, the Government does not intend to make
a declaration under Article 35 of the TEU when the Amsterdam Treaty
enters into force, though it will keep the matter under review.
The Government fully recognises that, as far
are possible, EU legislation should be interpreted and applied
consistently in all Member States, and that the ECJ provides a
means by which this can be achieved. However it should be borne
in mind that since none of the instruments provided for under
either the Maastricht or Amsterdam Treaty has direct effect, the
need for ECJ oversight of Member State compliance and consistency
of implementation is reduced. Moreover, the Government also believes
that, subject to an oversight by the national courts, there must
be a degree of national discretion in implementation of Third
Pillar measures. This is recognised by the provisions of the Amsterdam
Treaty relating to framework decisions, which leave to Member
States flexibility over implementation. Where a conflict does
arise between Member States as to the interpretation of a particular
instrument, Article 35(7) of the revised TEU, in the Government's
view, provides the correct approach, in that it allows the Council
a period of up to six months to resolve the dispute at a political
level before it is referred to the ECJ for a ruling.
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.
I am sending a copy of this letter to Lord Hoffmann,
Chairman of Sub-Committee E, Jimmy Hood, Chris Mullin and Joyce
22 March 1999