Letter from Kate Hoey MP to Lord Tordoff
I am writing in response to your letters of
6 May and 27 May about the interception provisions in the draft
Convention on Mutual Legal Assistance in Criminal Matters.
Your letter of 6 May asks for an explanation
of why the notification requirements in Article 13, if applied
to the security and intelligence agencies, would necessitate disclosure
of sensitive techniques and operational methods. In some cases,
we believe that disclosure of the very fact that an intercept
was possible might reveal sensitive operational capabilities of
the security and intelligence agencies. Much can be deduced, over
time, by the circumstances of particular notifications.
You ask whether the Convention would permit
the UK authorities to make their consent to a request from another
Member State subject to the condition that the intercept material
could not be used in evidence. The Convention would allow the
UK to impose any conditions on other Member States that it would
impose on its own authorities. This could include a prohibition
on the use of intercept material as evidence. We recognise, however,
that other Member States will wish to use intercept material obtained
under the Convention as evidence. The Government's own policy
on the use of intercept material as evidence in UK courts will
be addressed in the consultation document on interception legislation
which we shall be publishing very shortly.
You express concern about the resource implications
of using the remote access solution to satellite interception.
Law enforcement agencies will need to take account of any cost
implications when deciding whether to apply to the Secretary of
State for a warrant to intercept a satellite telephone. The same
considerations apply to existing types of interception and the
use of other investigative techniques, for example a decision
to deploy a greater number of officers for surveillance purposes.
You also ask whether we consider that the Government
has a continuing interest in the use made of a facility situated
on its territory. We fully recognise that the Government has such
an interest. Indeed, satellite operators with facilities on UK
territory will need to comply with the normal licensing conditions
for telecommunications operators in the UK. We will also need
to be satisfied that appropriate security arrangements are in
place to prevent misuse of any remote access facility. We do not,
however, believe that the host Member State has a substantive
role to play in individual cases where the target is on the territory
of the intercepting Member State.
Your letter of 27 May asks whether the effect
of the proposed definition of a criminal investigation in Article
2a of JUSTPEN 33 is such as to exclude from the scope of the Convention
the activities of the security and intelligence agencies. The
version of Article 2a in JUSTPEN 24 would have this effect. However,
for the reasons set out in the Explanatory Memorandum on JUSTPEN
39 (which I am depositing in parallel with this letter), we believe
the revised definition of criminal investigation in JUSTPEN 33
would apply to intelligence gathering by the security and intelligence
agencies. It is therefore not acceptable in its present form.
Finally, you ask in your letter of 27 May whether
the Government accepts the need for data protection provisions
and if so whether these are to be agreed before the Convention
is ratified and enters into force. The Explanatory Memorandum
of 9 March on JUSTPEN 108 (13144/98) explained that agreement
had not been reached among the Member States on whether data protection
provisions are necessary. The Government continues to support
the principles of data protection and is awaiting clarification
from the Presidency on how this matter is to be taken forward.
I am copying this letter to Jimmy Hood.
15 June 1999