FECL 34 (May 1995):

ACCOUNTABILITY: A PREREQUISITE FOR A LEGITIMATE AND EFFECTIVE EUROPOL

In written evidence presented on behalf of the Institute for Public Policy to the British House of Lords' Select Committee on the European Communities, Dr Neil Walker, a teacher at Edinburgh University, advocates the incorporation of a strong system of policy and individual accountability in the Europol Convention. The pursuit of police co-operation is too important to be left to professionals and bureaucrats alone, since it involves difficult and genuinely political value choice and the allocation of scarce public resources, Dr Walker argues. This requires strong measures of public scrutiny.

The following is based on excerpts from the evidence. The article numbers mentioned in this text relate to the draft Convention of 25.10. 1994.

Despite the unpromising portents, it is vital that speedy progress is made towards the establishment of a Europol Convention. There has been a historical tendency for the growth of practical measures of international police co-operation to outpace the development of systems of adequate regulation of such measures. This tendency remains evident in the circumstances surrounding the negotiation of the Europol Convention. Having failed to conclude agreement on the Europol Convention at Essen, the European Council announced an extension of the crime-fighting remit of the EDU beyond drug-trafficking to embrace trade in radioactive and nuclear materials, illegal immigration networks, vehicle trafficking and associated money-laundering operations.

In effect, this means that, notwithstanding their failure to agree on regulatory principles for the wider Europol, the political leaders of the EU are prepared to allow a significant broadening of the activities of the pilot organisation, the EDU, although it possesses only a skeletal regulatory framework which fails to address the major issues impeding settlement of the Europol Convention. clearly, the view of the political leadership of the EU is that progress towards more intensive police co-operation should not be thwarted just because an optimal regulatory system is not in place.

This perspective reveals an inadequate grasp of what is at stake in the failure to provide comprehensive regulation. In particular, it fails to appreciate the centrality of the issue of accountability to the future of European police co-operation, and the difficulties and dangers of proceeding without adequate resolution of this issue.

There are a number of reasons why it is important to provide a strong framework of accountability.

 

Development of European police co-operation a political choice

The development of policy in European police co-operation is ultimately a question of political choice, and, as such, should be subject to close public scrutiny and consultation. A number of reasons have been advanced to explain and justify the growth in European police co-operation. The most important of these are: the general increase in the mobility of the criminal and in the international dimension of criminal transactions and enterprises, particularly in activities which have a high public profile such as terrorism, drug-trafficking and money-laundering; the effect of the reduction, and eventual abolition, of border controls between member States pursuant upon the "1992" Single market initiative; and the threat to the domestic security and stability of Member States of an increased migratory pressure from economically disadvantaged and politically volatile regions to the South and East of the EU. In some circles it has been suggested or assumed that the need for a European system of police co-operation flows inexorably from these law enforcement and public order imperatives. However, police co-operation is no mere technical response to a self-evident security deficit.

To begin with, although there is broad consensus that it has reached significant dimensions, systematic information about the level of European crime is lacking.

Secondly, even if an accurate picture of the amount of transnational European crime was available, this would not resolve the question of how seriously it should be viewed. Quantitative analysis does not address the relative gravity of different crimes, of particular concern when the crimes at issue include such as terrorism and drug-trafficking; these crimes arguably pose such a profound threat to the state or to society as to defy meaningful comparison with most "ordinary crimes".

In the third place, the causes of international crime remain controversial. In particular, the impact of the removal of border controls is unclear. The overall trend in European transnational crime, therefore, although undoubtedly upwards, remains difficult to predict.

 

Security-based response to problems of crime controversial

Finally, the general priority to be given to a security-based response to problems of transnational crime and public order as opposed to other types of social policy response is also controversial. Drug abuse, terrorism and migration patterns - open and clandestine - have complex social, economic and political roots. They may be amenable to different types of treatment, with variable implications for the nature and intensity of police co-operative measures.

In sum, the pursuit of police co-operation involves difficult value choices and the allocation of scarce public resources to a set of problems which resist precise definition. This is a combination of political circumstances which justifies strong measures of public scrutiny and accountability.

 

Who controls the post-ratification evolution of Europol?

The range and intensity of political controversy surrounding the negotiation of the Europol Convention reinforce the significance which will attach to policy accountability mechanisms during the progressive implementation of the Europol Convention. Under the Convention as finally negotiated, a number of key policy questions are likely to remain unresolved, to be dealt with at a later point through a secondary system of regulation. The decisions made at the later stage may depend critically upon who has rights of prior information and consultation.

Under Article K.6 of Title VI of the TEU [Maastricht Treaty], the European Parliament is entitled to be consulted on "the principal aspects of activities" within the domain of justice and home affairs and to have its views "duly taken into consideration". How exactly will these general phrases be interpreted in the post ratification of the Europol Convention? For example, the key question whether Europol may, in time, acquire wider operational powers will depend upon whether the amendment mechanism under Article 40 is activated so as to extend the definition of competent tasks in Article 3; the broadening of the range of crimes which Europol is competent to address requires the satisfaction of a procedure contained in Article 2, involving, inter alia, the preparation of a draft decision by Europol's management Board prior to final resolution by the Council of Justice and Home Affairs Ministers; the development of data file rules determining the nature of the data to be stored under Article 10, [in the so-called Analysis Registers] and the adoption of rules governing the communication of personal data between Europol and third parties under Articles 10 and 16, are postponed to a later decision of the Council, again assisted by the Management Board.

The extent to which, and the point at which the European Parliament is consulted about these and many other decisions will depend upon the detailed content and interpretation of draft Article 31 [Information of the European Parliament]. The accountability mechanism which it eventually puts in place will be of vital significance, therefore, as it will be required to invigilate not only the general performance of Europol, but also key aspects of its structural development.

 

Individual vulnerability

The international exchange of information on individuals, which in the early years at least, will provide the main thrust of Europol's operational activities, is particularly susceptible to error and abuse. An international database of criminal information and intelligence on the scale contemplated increases the likelihood of the dissemination of false information about individuals. Further, if Europol is influenced by a strong "IT culture", there is the danger that information may assume a spurious objectivity in the perspective of those to whom it is disseminated. This possibility is reinforced by the fact that persons physically remote from the context in which information was produced may lack the background knowledge necessary for adequate interpretation of that information.

An effective system of data protection is required to address these problems, including more precise protective criteria and mechanisms wherever possible, and the provision for an effective and consistent enforcement regime.

The detailed working of the data protection system will raise policy issues, in which the European parliament will have an interest. A mechanism should therefore be provided whereby the European Parliament can keep itself informed of the workings of the data protection system.

 

The tyranny of the majority

In domestic policing literature, arguments in favour of special mechanisms both of policy accountability and individual accountability, often refer to the danger associated with the tyranny of the majority. By its nature, policing tends to be directed against deviant groups which often attract little support amongst the general public. In such a climate there is a danger that a form of authoritarian populism will gain currency which is unduly dismissive of the point of view and careless of the entitlements of members of minority groups or associated persons. In these circumstances, it is particularly important that a package of accountability measures is developed which is vigilant in its representation and protection of a plurality of interests.

 

Does accountability jeopardise effectiveness?

There has traditionally been a tendency for questions of democratic accountability to be marginalised in discussions about international police co-operation, and for only limited - and largely internal - accountability controls to be proposed and implemented. As was indicated by the readiness with which the European Council was prepared to extend the remit of the EDU despite its lack of accountability mechanisms, there remains a strong body of opinion opposed to or indifferent to more external control.

There are three main arguments which explain the persistence of such attitudes. These arguments speak, respectively, to the limited role of the general public in European police co-operation, and to the political preference for intergovernalism. Each argument can, however, be successfully answered. The cumulative effect of these counter-arguments is to suggest that the inclusion within the Europol Convention of a robust framework of accountability is a prerequisite to the development of an effective system of practical police co-operation.

 

Professional autonomy versus accountability

In the first place, there is the emphasis upon specialist knowledge and techniques in international policing. Many of the key issues of international policing are typically tackled by specialist units, each claiming to possess their particular brand of exclusive knowledge, with their own, necessarily confidential sources and techniques of criminal intelligence. From this point of view, professional expertise is seen as paramount. Even the broadest issues of constitutional design are viewed primarily from the point of view of professional efficiency. The development of an integrated approach to criminal justice matters under Title VI of the TEU, for example, has been encouraged and welcomed as a way of facilitating a more co-ordinated European security programme involving policing, Customs controls, extradition, mutual legal assistance, asylum and immigration policy etc.

On the other hand, the professional world-view is not necessarily receptive to the idea of strong systems of accountability. From its perspective, external consultation and supervision can lead to undue interference with professional expertise and inadequate security of sensitive information.

 

An organisational paradox

We have already argued that to view European police co-operation exclusively as a matter of professional expertise and technical accomplishment is to ignore its political dimension and to deny the undoubted relevance of democratic values. However, the argument from professional autonomy is also flawed on its own terms. The integration of the various aspects of criminal justice co-operation under Title VI appears to give rise to an organisational paradox. Proper co-ordination of Justice and Home Affairs matters in the name of professional efficiency, it seems, can only be purchased at the price of excessive bureaucracy. The Council of Ministers is served by a general Co-ordinating Committee [the K4-Committee], which in turn has three "Steering Groups", each with a number of working groups which, finally, have direct oversight of particular functions, including Europol. This elaborate architecture may give rise to a number of bureaucratic pathologies. These include delays in decision-making, a narrow and self-referential attitude to policy development, blurred lines of responsibility, defensive reporting, buck-passing, and pedantic preoccupation with rules and procedures. In the name of optimal efficiency and effectiveness, the professional approach may generate an unwieldy structure which harbours its own inefficiencies.

Arguably, the introduction of mechanisms of overview by and consultation of representative bodies at key points within the structure, Europol included, can help to overcome the paradox by ensuring against complacency and insularity and by countering the opaqueness of internal decision-making processes. In the context of an expanding bureaucracy, accountability arrangements can complement rather than compromise professional expertise.

 

Policing without the public

A second argument against strong accountability controls refers to the limited role of the general public in many areas of international policing. Domestically, the doctrine of policing by consent implies that the police service requires a steady flow of information from all sections of the public in order to achieve acceptable standards of effectiveness in preventing and detecting crime. This information flow depends upon mutual trust, which, in turn, is at least partly dependent upon public confidence that the police are answerable for their activities.

In international policing, the connection between effectiveness, public cooperation and adequate accountability is more tenuous. To the extent that the public subscribe to arguments concerning professional autonomy and the marginal status of targeted minorities, their support may not depend upon adequate accountability. More importantly, their active support may in any case be of less importance; small sections of the public are crucial informants in intelligence networks associated with international policing, but the public as a whole is not such a vital resource.

This is, however, only a sustainable position in a short term. In the longer term, as European policing intrudes into more mundane areas of crime (a tendency which is already evident in discussions of the remit of Europol), and as the relative transparency of the new Title VI procedures encourages greater public awareness of their role, international policing arrangements may lose their mystique and their detachment from normal processes of public involvement.

Europol will have to come to terms with a more knowledgeable, critical and potentially useful general public. As the Committee on Civil Liberties has argued, if the European general public are to become an effective weapon in the fight against the developing threat of transnational organised crime, a process of "social mobilization" is required, which can only be achieved by the forging of stronger accountability links.

 

Intergovernalism versus supranationalism

A third argument against holding European police institutions closely to account has deeper roots. Political ambivalence towards a supranational as opposed to an intergovernmental system of governance within the EU entails a lack of enthusiasm for accountability arrangements which accord a key role to supranational organs such as the European parliament and the Court of Justice. In part, this is a consequence of general political attitudes towards the development of any new competence on the part of supranational organs. In part, it is a concern peculiar to policing and internal security. The maintenance of internal security has traditionally been one of the defining characteristics of statehood. Moreover, many of the areas in which pressure for police co-operation is greatest, such as terrorism and money-laundering, are also those where the security of the state and the protection of its key interests are most directly at stake. Viewed through a nationalist lens, the strengthening of the capacity of the European centre to monitor policing may automatically be perceived as a threat to state sovereignty.

A refusal to give up traditional intergovernmental methods of international co-operation in policing and criminal justice matters may help to sustain a belief in the integrity of state sovereignty, but it also can provide a severe impediment to the development of effective systems of co-operation. After the Essen Council of Ministers meeting in December 1994, both the outgoing European Commissioner for Justice and Home Affairs, Padraig Flynn, and the European Parliament, expressed their disappointment at the slow rate of progress in the first year of operation of Title VI. They reserved particular criticism for those Member States who insisted on the use of the unanimity rule when negotiating Conventions.

The preference for unanimity is at least partly explicable by reference to fear of the "democratic deficit" at EU level. Only the veto, it is often argued from this perspective, stands between the Member States and the overweening authority of the European Commission, backed by a majoritarian Council of Ministers. There is, however, an alternative response to this fear which involves a more positive embrace of supranationalism rather than its outright rejection. If the European parliament - its legitimacy increasingly bolstered by its separate democratic mandate and its distinctive contribution to European politics and public policy - were to be permitted effective input into and overview of Title VI decisions, the veto might no longer be widely perceived as an indispensable constitutional longstop. Such a change of attitudes might free the way for more effective progress under Title VI along majoritarian lines.

Indeed, strong supranational accountability, in combination with national systems of accountability, is most likely to contribute to reducing the present overall democratic deficit and to providing a climate within which international agreement on co-operative arrangements becomes easier to secure.

 

Neil Walker

 

 

This abridged version of evidence presented by Dr Walker to the Select Committee is published with the kind permission of the author. The full text is available at: Dr Neil Walker, Department of Public Law, University of Edinburgh, Old College, South bridge, Edinburgh FH8 9YL, UK; Tel: +44/131 6502058, Fax: +44/131 6620724.