Letter from Lord Tordoff to Barbara Roche
Sub-Committee E (Law and Institutions) considered
the above documents (COPEN 2, 10, 11, 15 and 18) at its meeting
on 22 March. It also took into account the most recent changes
to the draft Convention outlined in a letter of the same date
from your officials to the Legal Adviser.
Two main areas remain of concern to the Committee,
interception and data protection. I deal with these in detail
below. I should, however, say at the outset that the Committee
does not underestimate the importance of the Convention in combating
serious crime. But, as our 1998 Report on the draft Convention
emphasised, a balance has to be struck between the promotion of
mutual assistance and the protection of the individual's privacy
from excessive and unwarranted interference. The Committee does
not think that the right balance has been achieved, particularly
with regard to Articles 18(3) and 20(a), or that the concerns
consistently expressed by the Committee have been adequately addressed.
It has therefore decided to hold the draft Convention (COPEN 18)
On interception, the Committee has two main
points. First, the amended Article 18(3) reverses the position
that a failure to respond within the 96-hour deadline has to be
interpreted as a decision to prohibit both the interception and
the use of the intercept material as evidence in criminal proceedings.
Silence would now imply consent not only for the initial 96 hour
period but, potentially, for up to a further eight days. Your
Explanatory Memorandum on COPEN 18 describes the revised Article
18(3) but does not give the reasons for the change in the Government's
position. You will recall that your letter of 24 February stated
that you were content with the principle that a failure to respond
within 96 hours should constitute a decision to prohibit the interception.
Our second point relates to the use of intercept
material in circumstances where the notified State has not given
its explicit consent to the interception. The wording of the second
indent of Article 18(3)(b) is, in our view, ambiguous. The extent
of the prohibition on the use of intercept material is not explained.
If it is intended to be broader than a simple prohibition on its
use as evidence in criminal proceedings, then there would seem
to be a need to back up the prohibition with a requirement to
destroy the intercept material.
The Committee supports the deletion of references
to "serious dangerous crime" in the latest text of Article
18(3). However, Article 18(3)(b) now provides that intercept material
may be used without the explicit consent of the notified State
"for taking urgent measures to prevent an immediate and serious
threat to public security". While this would as a general
rule under Community law imply a strict test, the new footnote
suggests otherwise. Further, the extent to which the "public
security" test would limit the use of otherwise prohibited
intercept material remains unclear. There is a danger that too
low a threshold might be adopted and that the intercepting Member
State would have too extensive a discretion to determine whether
the exception permitting the use of intercept material applies
in a given case. The Committee considers that it is essential
to include in the Explanatory Report to the Convention a more
precise definition of the category of crimes in respect of which
preventative measures may be taken if the exception is to be interpreted
consistently in all Member States and provide the necessary degree
of legal certainty.
Turning to data protection, the Committee remains
concerned that Article 20a fails to address the two issues identified
by the Data Protection Registrar. The first is the lack of precision
regarding the use of data communicated under the Convention. The
Committee does not accept the assumption implicit in your Explanatory
Memorandum that the degree of protection afforded by the 1981
Convention should vary according to whether the information is
"specifically sorted on specially set up databases"
(such as the Schengen Information System) or processed in any
The second issue is the absence of a binding
requirement to apply, in the areas covered by the draft Convention,
the minimum standard of data protection specified in the 1981
Convention. Your Explanatory Memorandum states that, as the 1981
Convention forms part of the EU acquis, a specific reference
to it in the draft Convention is not considered necessary. Your
response does not seem to take account of the derogations permitted
by Article 9(2)(a) of the 1981 Convention on such matters as "State
security, public safety, the monetary interests of the State or
the suppression of criminal offences". Ratification of the
1981 Convention by all the Member States would not necessarily
imply that national data protection legislation would apply to
all matters covered by the draft Convention. The Committee considers
that there is much force in the Data Protection Registrar's recommendation
to include a specific reference to the generally applicable data
protection standard required by the 1981 Convention. It also wishes
to draw your attention to its own recommendation, at paragraph
67 of its 1998 Report, that Article 25 of the "Naples II"
Convention on Mutual Assistance and Co-operation between Customs
Administrations might provide a useful precedent.
As already mentioned, the Committee is retaining
the draft Convention (COPEN 18) under scrutiny. The earlier documents
(COPEN 2, 10, 11, 15, 60 and Justpen 21) are cleared. If, as you
anticipate, the Justice and Home Affairs Council reaches a political
agreement on the draft Convention at its meeting on 27 March,
the Committee expects a full explanation of your reasons for over-riding
scrutiny, including your response to the points set out above.
I am sending a copy of this letter to the Chairman
and Clerk of the European Scrutiny Committee in the House of Commons.
23 March 2000