House of Lords - European Union - Twenty-Ninth Report

Select Committee on European Union Twenty-Ninth Report

CHAPTER 3: OBJECTIVES AND STRUCTURE

30. For Europol, as for many organisations, there is a distinction between its objectives—what it aims to achieve—and its competence—the powers it has to achieve those objectives. In the Convention Article 2, though headed simply "Objective", deals with competence as well. It sets out the objective of Europol as being "to improve, by means of the measures referred to in this Convention, the effectiveness and cooperation of the competent authorities of the Member States in preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime where there are factual indications that an organised criminal structure is involved and two or more Member States are affected." In other words, any crime which is not organised crime is currently outside Europol's objectives, and hence its competence.

31. This has for some time been seen as an unnecessary and unsatisfactory restriction. The expression "the fight against organised crime" is used in TEU Article 30(2)(c) and is a useful summary of Europol's work, but it should not be seen as limiting Europol's competence. The Austrian Friends of the Presidency Group which, as we explained in the previous chapter, was the spur for the Council Decision, put forward two alternative formulations of Europol's mandate, neither of which included the expression "organised crime".

32. There is in our view another reason for avoiding the expression "organised crime". Rob Wainwright, the Deputy Director for international matters at the Serious Organised Crime Agency (SOCA), explained that "Organised crime does not always carry any definition. In many countries, their definition of organised crime can be different." He told us that the Serious Organised Crime and Police Act 2005 has no definition of "serious" or "organised" "because it is not a term that is recognised within UK law". (Q 76)

33. This Committee was highly critical of the use of "organised crime" in the draft Council Framework Decision on the use of the Passenger Name Record (PNR) for law enforcement purposes.[29] Like the Friends of the Presidency Group we believe that, so long as those words lack a common definition, it would have been more satisfactory to define Europol's competence without resorting to that expression.

34. The Friends of the Presidency Group also thought that Europol would benefit from a clearer distinction between its objectives, competences and tasks. This is not a question of semantics, as was made clear to us by David Smith, the Deputy Information Commissioner, who was giving evidence to us as Chairman of the Europol Joint Supervisory Body: "If you are checking on whether there is a legal basis for the processing of data at Europol, where do you go to? To the competences or to the objectives? … the objectives talked simply about organised crime, whereas we have always been keen that Europol is confined to cross-border crime." He gave us as an example the murder of two French students in London. This clearly had cross-border implications simply because they were French students in London, but there was nothing to suggest that this would be a Europol matter and require international cooperation. There was no known connection with any French criminal activity. (Q 429)

35. The expression "organised crime" was however restored by the Commission in its proposal for the Decision, but in a way which makes clear that terrorism and serious crime can fall within Europol's powers even if not "organised", however that word is defined. The draftsman of the proposal, Mr Dick Heimans, explained to us the reasons for this. (Q 243) When Article 4 of the Decision is in force it will make clear that the competence of Europol extends to organised crime, to terrorism and to any of a long list of serious crimes, but only if two cross-border conditions are satisfied:

? the crimes affect two or more Member States;

? the scale, significance and consequences of the offences must require a common approach by the Member States.

The second of these conditions is simply an expression of the principle of subsidiarity, which would be breached if a common approach by the Member States was not more effective than action by them individually.

36. Mr Storr welcomed this change; he thought it helpful that Europol would be able to investigate serious crimes involving a number of Member States even though they might not be classed as organised crime. "I would see facilitated illegal immigration, trafficking in human beings, as being issues of the same degree of difficulty as international drugs trafficking because they involve the same element of organisation with a cross-border element to them, and that aspect of bringing either goods or people past the best efforts of law enforcement to tackle them. The distinction I would draw between what is organised crime and what is serious crime really relates more to crimes like murder, where previously the Europol definition of what was organised crime, and the mandate which it had, left serial murders involving a number of different countries, or other crimes (rape, etc) involving activity in a number of different countries unclear as to whether Europol had the mandate to cover them. Yet Europol, we knew, would have in those particular cases, or would be likely to have, information and intelligence which would be extremely useful to facilitate the investigation and detection of those crimes. So we were very much in favour of widening the Europol purpose to allow them to be active in those areas." (QQ 20, 22)

37. Mr Max-Peter Ratzel, the Director of Europol, gave us a number of examples of matters which at present were outside the competence of Europol, but on which it would be able to help Member States once the Decision was in force: serial killers, child pornographic material distributed in a loose network, and violent demonstrators making a habit of disrupting sports or political events. (Q 177)

38. Mr Tim Wilson, a Visiting Fellow of a joint research institute of Newcastle and Durham Universities, gave us the graphic example of the case of Michel Fourniret, a Frenchman living in Belgium, who has been convicted of seven murders on the Franco-Belgian border and is under investigation for another murder, that of a British student. Until an intended victim escaped, the French and Belgian authorities were not aware that they had a serial killer on the loose. Mr Wilson thought that in such a case there was a role for Europol to assist on a bilateral or trilateral basis. (p 60, Q 137)

39. At the same time, he was the only one of our witnesses to sound a note of caution about the expansion of Europol's mandate. He told us that if he were writing an open letter to the next Director of Europol or Chairman of the Management Board, he would be fairly modest in what he was expecting the organisation to do. The statistics had in his view to be treated with caution. It had to be remembered that most crime was local, and more than 75% of crime that was investigated forensically occurred and was solved within one police area. The work that Europol and SOCA were doing, though important, concerned only quite a small amount of criminal activity. (Q 134)

40. We do not ourselves share Mr Wilson's concerns. The significance of the crimes seems to us to be paramount. Like Mr Storr, we believe that where Europol is likely to have information or intelligence which will facilitate the investigation and detection of crimes, those are crimes which should fall within Europol's mandate.

41. In our view it is therefore right that Article 4 of the Europol Decision will not limit the mandate of Europol to "organised crime". As drafted, in our view it gives as good a definition of the crimes which should fall within its competence as is likely to be achievable.

National units and liaison officers

42. Liaison between Europol and the "competent national authorities" takes place through a national unit. In the original Convention the "competent authorities" were undefined. Since the entry into force of the Danish Protocol they are defined as "all public bodies existing in the Member States which are responsible under national law for preventing and combating criminal offences." This definition is adopted in the Decision. Plainly it goes much wider than just police, and will cross ministerial boundaries in the United Kingdom and most other Member States.

43. The national unit is the single point of contact between Europol and each Member State to coordinate its law enforcement activities and interests with Europol. For the United Kingdom SOCA is that national unit.

BOX 6
SOCA

SOCA, the Serious Organised Crime Agency, was set up by the Serious Organised crime and Police Act 2005, and assumed its full functions in April 2006. It is an intelligence-led law enforcement agency with harm reduction responsibilities. The most damaging sectors to the UK are judged to be trafficking of Class A drugs, organised immigration crime and fraud. Other threats within the remit of SOCA include high tech crime, counterfeiting, the use of firearms by serious criminals, serious robbery, organised vehicle crime, and cultural property crime—but, significantly, not terrorism.[30]

@44. Mr Wainwright explained that within SOCA it was the International Department which was responsible not only for Europol but also for the other international channels of police cooperation in the United Kingdom. It was an integrated part of a bureau that also included Interpol, the European Arrest Warrant functions in the European Union, and a very large bilateral network of liaison officers around the world (some 140 in 40 countries). (Q 62) Liaison with Europol originally took place only through the national unit, but since the entry into force of the Danish Protocol Member States may allow direct contact between other "designated competent authorities" and Europol.[31]

45. The only disadvantage of having SOCA as the United Kingdom national unit is that it has no counter-terrorism remit.[32] Sir Ronnie Flanagan, the Chief Inspector of Constabulary, told us: "… it is absolutely crucial that we in the UK have a one-stop shop. I cannot think of a better body or a more appropriate body than SOCA in that national sense. Undoubtedly, it does have shortcomings. SOCA, for example, has no remit in relation to counter-terrorism, so suddenly you find our Met colleagues, who have very much an international remit in that regard, deploy representatives to Europol quite outside SOCA … They [the Met] have one [liaison officer] and have imminent plans for a second one to be embedded." (QQ 379-380)

46. While we accept that SOCA is best placed to act as the United Kingdom national unit, the fact that it has no counter-terrorism remit makes it all the more important that it should work very closely with the Metropolitan Police and other forces which do have such a remit.

47. Each national unit is required to second at least one liaison officer to Europol, and these, having one foot in each of the Europol and national unit camps, are the main source of personal contact. The United Kingdom currently has eight staff at the Liaison Bureau representing SOCA, the Metropolitan Police, HM Revenue and Customs (HMRC) and the Scottish Crime and Drugs Enforcement Agency. The cost is in the region of £150,000 per annum per officer. Other large Member States have similar sized teams.

48. The Home Office saw the liaison bureau as an essential component of supporting Member States' law enforcement activity, providing as it does a direct link between Europol and the Europol national unit in the home country. (p 3) SOCA was equally enthusiastic: "The unique value offered by the Europol network derives from the co-location of liaison officers from all 27 Member States in one centre, allowing in particular for operational coordination across multiple (i.e. more than two) borders. This works well for the UK in over 500 cases each year. Notable successes in recent years include the disruption of a criminal organisation involved in international drug trafficking and money laundering, operating across six countries, which led in February 2008 to the arrest in London of 22 suspects, the seizure of 125kg of cocaine, and the recovery of a substantial amount of cash and firearms."(p 26)

Bypassing Europol

49. There is however a downside. With every Member State[33] having a number of liaison officers located within the same building it is inevitable, and plainly desirable, that informal contacts should be built up between them, particularly since these can deal with matters outside the competence of Europol. It is also inevitable that some exchanges of information should take place between liaison officers without involving Europol at all, even though dealing with matters within its competence; and a question which has exercised us is the extent to which this takes place, and whether this too is desirable.

50. We were astonished to read in the Home Office written evidence (p 3) that "the vast majority of information exchanges between liaison bureaux occurs outside the formal systems, and thus while providing very significant benefit to the participating countries the main loser is Europol, which is denied the opportunity to access the information. It is reported that up to 80% of bilateral engagement occurs this way"—a figure confirmed by Mr Ratzel. (Q 181)

51. The Home Office evidence explained that the fact that Europol is deprived of a huge amount of intelligence data is a matter of concern to them, and something they feel should be addressed. They told us that the United Kingdom is prepared to take a lead on improving the amount of bilateral exchange material shared with Europol, but that the other partner to the bilateral exchange must be similarly disposed, or else the United Kingdom could find itself frozen out of bilateral engagement. (p 3)

52. We too are concerned that such a very large proportion of information is exchanged without Europol being in any way involved. In our view Europol itself is only one of the losers; the others are all the Member States not party to these bilateral or multilateral exchanges, since they will not have access through Europol to the information, or be able to contribute to it. Their inability to contribute may also be detrimental to the Member States involved in the exchanges. It seems, as Sir Ronnie Flanagan said, that the very success of bilateral approaches can leave the Member States involved in the dialogue happy despite the centre remaining in ignorance of what is going on. (Q 397)

53. We accordingly questioned a number of our witnesses about this, including Mr Storr. He told us that if intelligence suggests that there is a European dimension involving activities of criminal organisations in a number of Member States, SOCA will take a decision as to whether to involve the SOCA liaison officers based at Europol, or whether "if it is a particularly serious case" to involve Europol's full facilities, including analytical capacity and the ability in particular operations to open an analysis work file. (Q 5) He added: "I do not think the 80 per cent and 20 per cent are necessarily referring to the same type of operational activity. There may be some, in fact a large number, where you would simply have a particular piece of criminal activity that involved two, three or four Member States. If that is possible to solve within the liaison officer arrangements, then that probably is a more efficient way of doing it than inviting Europol formally to take charge of coordination arrangements. I think SOCA and indeed other Member States' competent authorities will constantly be asking themselves: what will get us best value out of those arrangements? Is it using the liaison officer function or is it inviting Europol to open an analytical work file or otherwise to provide assistance of a specialist nature or good quality analysis?" (Q 55)

54. Assistant Chief Constable Nick Gargan thought we had "a very generous and high quality set of arrangements in terms of SOCA liaison officers" for bilateral inquiries. (Q 369) Mr Wainwright told us that the liaison bureau was a "very effective" network of which the United Kingdom was "a good user … the second or third highest between the 27 Member States". But he thought it "over-simplistic" to compare what was obtained through the liaison officer network with what might be obtained from the main body of Europol itself, adding that "in almost all of those cases there will have been a supporting involvement of Europol, and therefore it is not so easy to separate the two." (Q 69) Even if such a comparison is over-simplistic, it is still the case that 80% of the information is obtained directly through liaison officers at a cost to the United Kingdom of approximately €2 million a year, while the remaining 20% which comes through Europol costs this country €9.6 million. (Q 32)[34]

55. Our own concerns about the bypassing of Europol were echoed by other witnesses. Sir Ronnie Flanagan thought that "… if [intelligence] is not channelled through the centre, if it is not channelled through the mechanisms and structures we have created, there is a great risk that those gaps result in a less than efficient ability on the part of others, not originally engaged in a particular bilateral."(Q 399) The point was even more forcefully made by Professor Monica den Boer of the Vrije Universiteit (VU) Amsterdam: "I keep emphasising this point, Europol depends on being fed with intelligence from the Member States. As long as the Member States keep the intelligence to themselves it just will not happen, so the culture of change will have to take place there rather than within Europol itself." (Q 155)

56. The Friends of the Presidency Group asked for a Management Board decision allowing the use of Europol's secure ICT infrastructure for bilateral exchanges of information between the Member States, using Europol as service provider; they suggested that where possible information exchanged bilaterally should be included in appropriate Europol databases.[35]

57. We agree with the Friends of the Presidency Group that it is highly desirable that bilateral exchanges of information should be recorded on Europol secure databases. The Management Board should give this serious and urgent consideration.

A question of trust

58. The Home Office thought it was not particularly clear why so much information was not channelled through Europol; it was likely to be a combination of factors, but "there is the issue that tends to pervade all information exchange between countries and Europol, the issue of "confidence and trust" in handling and protecting the data". (p 3) Mr Storr amplified this in oral evidence: "I think more needs to be done to convince Member States of the added value that Europol can provide, and indeed the integrity … and the security of their information systems."(Q 55)

59. In connection with the analysis work files, which we consider in the following chapter, the Home Office said: "… although there is no evidence of Europol's systems being insecure, we recognise a reluctance on the part of many Member States to share what is very sensitive information, especially in the early stages of an investigation and the information gathering process, where any leak could compromise the investigation."(p 5) Where sensitive material was compromised it was not only prosecution cases that were jeopardised; lives which might be put at risk, a point made both by Sir Ronnie Flanagan and by Chief Constable Ken Jones, the President of the Association of Chief Police Officers (ACPO). (QQ 385-386, 392) HMRC said bluntly: "… there is still a strong reluctance from HMRC to share sensitive intelligence with other Member States through Europol channels. The Fiscal Crime Liaison Officer Network is the preferred route."(p 205)

60. "Confidence", "security", "integrity"—these words in our view all point to a lack of trust as being the main reason why the central Europol system is so often bypassed. Any information going into the system goes, potentially, to the national units of 27 Member States, and thence to their "competent authorities", potentially all their law enforcement authorities. While there is undoubtedly an element of convenience in simply discussing problems and sharing information with only a few other liaison officers, in the case of more sensitive information this may be thought not just desirable but essential and, we would add, entirely understandable. But it entails the major disadvantage that, unless and until that information is shared with Europol and with States other than those known to be involved, it will not be apparent whether there is a benefit to be derived from making it available for analysis by Europol or other Member States.

61. Mr Augustin Diaz de Mera MEP, the member of the LIBE Committee of the European Parliament[36] who acted as rapporteur for the draft Council Decision, told us: "Europol was created in 1995, which is almost 13 years ago, and we have not been able to reach the kind of trust level that we wanted … there has been a problem of not being able to share enough information and intelligence between Member States … It is not a problem of the Member States, but rather of their special services not being able to trust each other as much as they should. The key is trust."(Q 273)

OUR CONCLUSIONS

62. There is a lot to be said for building up bilateral and multilateral contacts between national liaison officers. It is the first and most important step in the development of trust between them.

63. However, for Member States to share information in a limited way through liaison officers is the antithesis of the purpose of Europol, which is the enhancement of the already existing combined effort of the Member States' competent authorities so that the whole is greater than the sum of its parts. Limited sharing of information will not achieve a common approach to cross-border cooperation against serious crimes.

64. The Home Office tell us that the United Kingdom is prepared to take a lead in improving the amount of material shared with Europol. (p 3) We look forward to hearing in the Government's response to this report precisely what steps they intend to take to bring this about.

65. We consider in Chapter 7 how trust might be improved.

29 The Passenger Name Record (PNR) Framework Decision (15th Report, Session 2007-08, HL Paper 106, paragraphs 38-40). Back

30 When we took oral evidence from the Directors of SOCA we put to them the point that the requirement for banks, estate agents, lawyers and others to make suspicious activity reports was too widely drawn . We were told that there were indeed one million records on the database, but that it was a very useful database enabling SOCA "to identify, for example, very quickly, criminal networks involved in the laundering of money, and the MTIC fraudsters, the so-called carousel VAT fraudsters". We accept that since the making of suspicious activity reports is a requirement under the Proceeds of Crime Act there is no possibility of an immediate change, but we caution against the possibility of SOCA being inundated with enormous volumes of data, much of which might related to matters other than serious crime. (QQ 78-80) Back

31 Convention, Article 4; Decision, Article 8. Back

32 Sir Stephen Lander, the Chairman of SOCA, is a former Director-General of MI5, but this is coincidental. William Hughes, the Director-General of SOCA, is a former Director General of the National Crime Squad, while Rob Wainwright, the International Director of SOCA, was formerly Director of the International Division of the National Criminal Intelligence Service (NCIS). Back

33 and a number of other States and bodies: see Chapter 6. Back

34 The figures given by Mr Wainwright in answer to Q 103 are rather different, but this does not affect our argument. Back

35 Recommendation 19. Back