House of Lords - European Union - Twenty-Ninth Report

Select Committee on European Union Twenty-Ninth Report

CHAPTER 4: WORKING METHODS

66. Intelligence-led policing has spawned an array of acronyms of which even the police can be proud, but the concept itself is simple: using today's knowledge to shape tomorrow's policing.

67. In this country the expression "intelligence-led policing" was originally used to describe an approach to crime reduction that moved resources away from retrospective crime investigations into pre-emptive operations based on analysed intelligence. Rather than reacting to events as they happen, intelligence-led policing uses the knowledge already acquired to determine crime trends and patterns, and criminal activities in progress, and uses that body of information to influence the directions the police go in targeting particular individuals, activities, geographical locations and the like.

68. This change was implemented within police organisations by the adoption of an "intelligence model" which described the different roles, responsibilities and procedures in an intelligence-led policing environment. When this was adopted nationally in the United Kingdom it became known as the National Intelligence Model (NIM). The ACPO Code of Practice on the NIM, issued in January 2005 by the Home Secretary under the Police Reform Act 2002, provided a statutory basis for the introduction of NIM minimum standards and its basic principles. This "intelligence-led approach" was supported by additional funding and made the subject of time limits for implementation. The process was described to us by Sir Ronnie Flanagan. (Q 364)

69. In November 2004 the Hague Programme adopted the goal of setting up and implementing a methodology for intelligence-led law enforcement at EU level, and introduced a new Organised Crime Threat Assessment (OCTA) as a first step. The United Kingdom held the Presidency of the EU in the second half of 2005, and Mr Storr told us that there were two key objectives: to try to establish intelligence-led policing as a concept within Europe, and to ensure that intelligence and the analysis of that intelligence led to a good quality threat assessment. Two things were achieved: one was the adoption of a new and better Organised Crime Threat Assessment (OCTA), and the other the adoption of a European Criminal Intelligence Model (ECIM), a business model for intelligence-led policing at the international level, based on the NIM. "The idea of actually using intelligence to identify and spot crime trends and to uncover operations of criminal activity in progress and to take necessary pre-emptive action were all interesting changes … we had to work hard to convince some European partners that it was worth doing, but we managed to get it adopted."(Q 10)

70. Their hard work was rewarded when in October 2005 the JHA Council adopted the Presidency's Conclusions on proposals for intelligence-led policing. This was one of the three main matters listed in the summary of results of the Council. The Conclusions stated:[37]

BOX 7
Intelligence-led law enforcement: JHA Council Conclusions

The goal of setting up and implementing a widely used and common methodology for intelligence-led law enforcement at EU level must be further enhanced through concerted and co-ordinated action by all bodies and agencies of the European Union involved in these efforts, as well as the Member States, and must be sustained over a longer period of time. The Council notes and welcomes the Commission's intention to bring forward proposals, prepared in co-operation with the relevant bodies and agencies, as well as the Member States, for further action in this area during 2006.

71. Mr Storr's view was that the concept of intelligence-led policing was now established, but "very much work in progress"; and he conceded that in many Member States it was still "slightly counter-cultural". (Q 10) The Commission were less sanguine, believing—in our view justifiably—that intelligence-led policing had been adopted in only some Member States, and that many Member States were unenthusiastic. The Commission working paper on criminal intelligence-led law enforcement, which the Council expected to be brought forward in 2006, has been delayed, possibly to 2009, and the Commission thought it "premature to work on these issues". (QQ 254-255)

72. We were told by Home Office officials that when the Council Multidisciplinary Group (MDG) on Organised Crime was looking for a new topic for its next round of Member State mutual evaluations the United Kingdom was keen to have intelligence-led policing as the subject. This would have resulted in the collection of clearer information about the extent to which this had been adopted by each Member State. However the suggestion was dismissed because there was no agreed definition of the concept.

73. There seems to us to be a considerable element of circularity involved. In October 2005 Ministers from all the Member States committed themselves to setting up a "common methodology for intelligence-led law enforcement". Presumably they, or at least their officials, understood the meaning of the methodology to which they were committing their law enforcement authorities. Three years later those officials say that they cannot tell whether this result has been achieved, or even to what extent the concept has been adopted, because, in effect, they do not understand what it is they are supposed to be achieving.

74. We share the Commission's doubts as to whether the concept of intelligence-led policing is as well established in the Member States as Mr Storr suggests. We agree with Sir Ronnie Flanagan that such changes require an "unrelenting focus" if they are to be accepted. (Q 364)

75. The Friends of the Presidency Report recommended that Europol and the Heads of Europol National Units (HENU) should draw up an inventory of the methods, skills, and knowledge required for successfully implementing intelligence-led policing. This in their view would result in recommendations on intelligence-led policing for Europol and the Member States. They thought that Europol and CEPOL (the European Police College) should organise training on the subject.[38]

76. We believe that Europol is uniquely well placed to establish among the police forces of the Member States a common understanding of intelligence-led policing. Europol should work with the Heads of National Units and the European Police College to organise training which will encourage the adoption and use of intelligence-led policing as the common working method.

The Organised Crime Threat Assessment

77. The Hague Programme instructed Europol to draft the first OCTA for the year 2006. Prior to that there was no Organised Crime Threat Assessment; there was only an Organised Crime Report, looking backwards and mainly based on historical statistical data, unlike the OCTA which looks forward and is based on qualitative data. Europol, strongly supported by the British Presidency, drafted the first OCTA by the end of 2005. OCTAs are now published annually by Europol, informing the JHA Council of the principal threats faced in the EU and allowing Europol to facilitate joint operational responses by Member States.

78. The Europol Work Programme for 2009[39] states that the strategic objectives of the organisation have been particularly influenced by the documents from the October 2005 JHA Council on intelligence-led policing and the development of the Organised Crime Threat Assessment,[40] but no specific mention of the ECIM is made. On the other hand, Europol officials promote the ECIM methodology, for example, in strategic meetings in relation to regional initiatives in the Western Balkans.[41]

79. Opinions on the value of the OCTAs differ. Dr Nicholas Ridley believes that "it is a magnificent tour de force from an academic, strategic analysis point of view … [but] the unfortunate thing is that OCTA is not really operationally orientated". (Q 452) SOCA however believes that "the ECIM/OCTA model is ushering in a new phase in the development of Europol, establishing the agency as a central intelligence base in the EU supporting a range of sub-regional initiatives around the EU. This approach is exactly in line with our aspirations for the organisation."(p 25) In oral evidence Mr Wainwright told us that the OCTA was now "an embedded, very important part of the Europol machinery … a direct response to what we did in 2005." But he added that there was still some way to go, and that the concept of a dedicated intelligence requirement had still not taken root in Europol. (Q 81)

80. SOCA adds that responses to the OCTA now increasingly take the form of regional or sub-regional initiatives in Europe, in which a small number of Member States, sharing a common, localised problem, use Europol's centralised knowledge base and information systems to help deliver effective operational actions. Sub-regional versions of the OCTA, for example in the Balkans, are now being developed.

81. We congratulate the Government and officials on their work in exporting to other Member States and to Europol the concept of the Organised Crime Threat Assessment. The continued development of the OCTA should be pursued.

82. When associated with an intelligence-led approach to policing the OCTA should improve the liaison arrangements between prosecuting and investigating officials required by Article 30(2)(c) of the Treaty on European Union, and lead to better coordination of internal security, improved information exchange, and more accurate communication. We encourage the Government to persevere in their attempts to embed these concepts in the policing culture of all Member States.

Information Exchange and Analysis

83. The Europol Convention provides a tight legal framework for the exchange and analysis of information about organised crime and terrorism in the EU. Article 6 instructs Europol to maintain a computerised system of collected information consisting of an information system (the Europol Information System or EIS) and analysis work files (AWFs). In this section we consider the context in which they operate before looking at them individually in greater detail.

84. Title IV of the Convention seeks to regulate the respective data management responsibilities of Europol and the Europol National Units by drawing up "Common Provisions On Information Processing". Article 13 requires Europol to "promptly notify the national units ... of any information concerning their Member State and of connections identified between criminal offences for which Europol is competent …" This responsibility extends to information received at Europol by virtue of cooperation agreements with third parties under Article 42.

85. Article 17 specifies that the data in the Europol system can be transmitted or utilised only by the competent authorities of the Member States, only to prevent and combat crimes falling within the competence of Europol, and only in compliance with the laws of the receiving Member State. Europol can use the data for its tasks. The data sent to Europol by a Member State can be made subject to "particular restrictions on use to which such data is subject in that Member State or by third parties". The article goes on to make clear that the restrictions in question are those established by national law—there is no provision for the use of data to be restricted because of their use in Europol.

86. Originally, therefore, the Europol Convention set out the design of a tightly defined network of trustful communication links and data stores between law enforcement officials engaged in combating Europol-type crimes across the European Union. Unfortunately, no entity was made responsible for the maintenance and development of the network; Europol and the Member States remained responsible for their respective parts of the system without there being an operating authority with responsibility for overall coordination. Early on, the development of the information system and the AWFs was divided into two entirely separate and independent programmes called EIS (Europol Information System) and OASIS (Overall Analysis System for Intelligence and Support). From the first days, the Member States drew up the Council rules applicable to Europol Analysis Files[42] and required themselves to notify Europol of any possible access restrictions to their data. These restrictions could be applied retrospectively, and were not limited merely to those to which the data were subject in the Member States.

87. There have been major technological advances since the establishment of Europol, and a doubling in the number of Member States, but this does not excuse the poor delegation of powers in the arena of the computerised system of collected information. From the moment that the Member States decided that they needed the Europol network, the Council should have delegated powers to manage the whole system effectively.

88. We found ourselves wondering whether some Member States have any real interest in what Europol does, or in coordinating the necessary support for Europol. The overall picture we gained, in particular from the evidence of the Commission, was that some Member States have lost the view of what they want Europol to do in terms of information management. Europol is acting in accordance with its best endeavours, but having to make its own rules almost as it goes along. Dick Heimans, a former Europol official who is now Head of Sector for Counter-terrorism at the Commission, thought this painted an excessively bleak picture. He conceded that there would be difficulties in managing an organisation where the main power rested with the Council, working through a Management Board consisting of 27 different Member States which all had individual interests, individual systems of criminal law, individual relations between prosecutors and law enforcement personnel, and different relationships between law enforcement agencies and intelligence agencies. However he thought they were "doing a fairly good job of it". (QQ 264-266) We continue to doubt whether all Member States have the necessary commitment to the exchange of information which is Europol's core function.

89. The problem of coordination is one that has been identified in other parts of the EU structure. Professor Gilles de Kerchove, the EU Counter-terrorism Coordinator, told us: "… by attending meetings of the LIBE Committee of the European Parliament … I have had the feeling that Members of the European Parliament do not see the overall picture where the European Union wants to go and where it will stop creating different legislation on data collection and data sharing ... [the Council] did not provide the Parliament with a strong vision of where it wanted to go and where it wanted to stop … That is why … I strongly recommended … the setting up of one single working group within the Council to look at all aspects of the problem."(Q 358) In reply to our question about segmented development of information systems relating to criminality, Mr Storr said (Q 58): "Frankly, I think if we were starting now with a blank piece of paper, we would not design the systems in quite the way in which they have been designed or developed. As with many things within the European Union, life is not perfect"—a masterly understatement.

90. In the Council Decision, nearly all traces of the tight network for trustful collaboration between competent authorities have been lost. So too has the principle of a single computerised system with a narrow focus of operations. This appears to be simply an acceptance of today's reality, where the EIS and OASIS (AWF) programmes have been implemented independently of one another. Some Member States seem uncertain about the purpose and usefulness of loading data into the information system automatically, a development which occurred during the implementation of the current system. The OASIS programme has created large databases not originally foreseen in the Europol Convention, developed text-mining tools and made award-winning innovations.[43] But meanwhile, as we have said, Member States continue to regard bilateral data exchanges as the preferred means of maintaining trustful relationships. This failure to implement an EU-wide network to connect competent authorities is a lost opportunity to address the problems of effectiveness.

EUROPOL INFORMATION SYSTEM: CURRENT IMPLEMENTATION

91. EIS is the name of the programme of work that implements the information system component of the computerised system of collected information. The programme provides a general information exchange service available to all Member States through their liaison officers and the Europol national units. It is used to store personal information about people who, under the national law of that country, are suspected of having committed a crime for which Europol has competence, or where there are serious grounds to believe they will commit such crimes. It allows Member States to search what is in practice a central EU repository for serious organised crime. In January 2007 the EIS held 34,742 data items; by the end of the year this had risen to 62,660 items, and by April 2008 to 87,947 items. (p 87)

92. The small number of references our witnesses made to the information system is testimony to the lack of interest in it, and hence to its low level of use. It was instructive to hear Mr Ratzel on the subject: "When we confront the Member States, for example, [with the fact that] we do not have enough data in the information system, nobody is really receiving the message and putting it into action back home. If I confront the Management Board with that, the answer is 'We are the Management Board. We are guiding the organisation, but we are not guiding our people back home.' If I tell it to the Heads of Europol National Units … they tell me 'I do not have the resources back home'. If I talk to the [Police Chiefs Task Force][44] … their advice is 'We are the Police Chiefs Task Force. Go to the other people and try to convince them to insert data into the system'."(Q 179)

93. In 2007 there was an 80% increase in the number of items of data stored on the EIS, due largely to the introduction of so-called automatic data loaders, but as at May 2008 only five countries were using the automated loading system—Germany, the Netherlands, Denmark, Spain and Belgium. The United Kingdom still needs to double key any data it loads onto the EIS; data systems are not compatible, so that the automated loading system cannot be used. This is one reason why the volume of data this country loads is still very low. Assistant Chief Constable Gargan commented: "In terms of the better use of the Europol Information System, I suppose a start would be to get properly connected to it, which we are not". (Q 394) The Home Office and SOCA both told us that these problems were being addressed (pp 5 & 26), so that "when [the IT change-out] comes on stream—hopefully within the next year or two—we will be able to update on to the EIS very quickly". (Q 75)

94. Information capture is an important part of Europol's functions, and the Government should ensure that automatic data loading from SOCA to the Europol Information System is implemented as a matter of urgency.

95. Across the EU, the Council Multidisciplinary Group on Organised Crime reported that "Although Europol started automatic extraction of data from Member States' national services for the launch of the EIS system, very few Member States are completely ready to operate the system. There are different reasons accounting for this situation. In some Member States the information to be transmitted is not yet defined. Some other Member States can only insert live information in the information system with the prior authorisation of judges. Due to these different levels of preparedness, it will still take time before a fully integrated Europol system is available for the benefit of all police agencies in Europe."[45]

96. The United Kingdom is not a major user of the EIS. One reason is that about 45% of the entries relate to Euro counterfeiting, but there are also concerns about the quality of the data loaded. The United Kingdom aims to input only high quality data relating to serious and organised crime, but data from some other Member States need to be updated, or else have expired and need to be deleted.[46] Concerns over data quality, and hence over the value of the EIS, are one reason for reluctance to load data onto the EIS; another disincentive is the very success of bilateral engagement to which we have already referred.

97. The Friends of the Presidency Report reveals that "the majority of cross links between data exchanged via Europol are not detected. In addition, information exchanged by the liaison officers via Europol is in many cases not cross-checked against other information available at Europol". The Group recommended that "To make full use of Europol an automated cross-check mechanism should be put in place that automatically checks information in the different Europol systems (e.g. AWF, IS, InfoEx) for cross-references and wherever the handling codes applied allow for this, notify the owners of the information (Europol should be enabled to act as a black-box facilitator for all data exchanged via and processed at Europol)". They described this as a "quick win" which could be achieved by an initiative of the Director, though it might require further resources.[47]

98. We agree with the Friends of the Presidency Group that the Director should put in place a mechanism which can automatically check the information in the different Europol systems for cross-references, and where possible notify the owners of the data. If further resources are needed, they should be made available.

ANALYSIS WORK FILES: CURRENT IMPLEMENTATION

99. OASIS is the name of the programme that implements the "work files for the purposes of analysis" component of the computerised system of collected information. The outcome is a group of applications that help analysts to organise and present information in the form of results of analysis, data mining components and large databases that store comprehensive information in AWFs. As we have said, our witnesses referred remarkably little to the EIS. They were considerably more vocal about analysis work files, bearing out the views of the Multidisciplinary Group: "Given the current situation [of the EIS], the main tools and resources available to the Member States are still the analyses produced by Europol."[48]

100. Analysis work files (AWFs) are files in which Europol stores data on criminal offences for the purpose of analysis. Dr Nicholas Ridley explained that "an AWF is nothing more … than an electronic storage receptacle of intelligence, instantly available to the analyst". (Q 441) Article 10(2) of the Convention defines the purpose of an AWF as "the assembly, processing or utilisation of data with the aim of helping criminal investigations",[49] but Dr Ridley told us that he regarded this as a misnomer. He suggested that this definition was out of date. It was equating and confusing the intelligence process with intelligence analysis. The assembly and processing of data was part of the intelligence process, and was separate from analysis. (QQ 442-443)

101. Subsequent to his oral evidence Dr Ridley sent us the following diagram:

FIGURE 1
Analysis Work Files

He explained that the three stages of "assembly, processing and utilisation" of data should more accurately be seen as the five stages of intelligence collection, collation, evaluation, analysis and dissemination. The analysis work file itself was simply the database used for collation and evaluation of intelligence; analysis took place subsequently.

102. The procedure for establishment of a work file now leads to the creation of a large database rather than support for an investigation, as was originally intended. Authorisation still occurs through an opening order that states the purpose of and limitations on the collection of personal data for analysis. The order is adopted by the Management Board after being agreed by the Joint Supervisory Body.[50] Over time, opening orders have been widened to reduce bureaucracy and they now cover a number of investigations associated with the same theme. In 2006 AWFs covered the following categories of crime (referred to by Europol as "crime areas"):

TABLE 1
AWF Crime Areas

Crime area	Number of operational projects
Drug trafficking	3
Crimes against persons	3
Financial and property crime	4
Organised crime groups	4
Terrorism	2
Forgery of money	2
Total	18

103. Only two files on financial and property crime were operational in 2007, but four are now again operative. Mr Ratzel gave us more details: "… we have two Analysis Work Files dealing with terrorism issues … one dealing with money laundering … another one dealing with counterfeiting of products and the counterfeiting of money, mainly counterfeiting of euros but also of the British pound … another dealing with trafficking in human beings, another one dealing with illegal migration and another dealing with eastern European organised criminals."(Q 167)

104. The United Kingdom is a member of 16 AWFs and currently applying to join another.[51] HM Revenue and Customs gave us examples of two AWFs in which they participate. Their main area of work with Europol is AWF Smoke, dealing with tobacco fraud. Prior to the secondment of an HMRC officer to Europol in June 2006, HMRC were contributing to AWF Smoke only on a sporadic basis. Since then the United Kingdom has consistently been in the top three, and in the last quarter of 2007 was the largest contributor of tobacco fraud intelligence in Europe with 36 out of 135 contributions. The second AWF, MTIC (Missing Trader Intra Community), opened on 2 April 2008 and is a United Kingdom lead initiative to combat abuse of the tax system by organised criminal groups. The aim is to provide a European platform for collating and analysing data from Member States' MTIC investigations.

105. Every new AWF must have a link to the Organised Crime Threat Assessment, otherwise it would not be a priority for the Member States. Member States are not obliged to participate in all AWFs; it is up to individual Member States to declare that they are ready and willing to do so. They may not wish to participate in an AWF which specifically concerns only a few Member States, but in fact the majority would like to participate in as many as possible. (Q 176)

106. Analysis is the key feature which differentiates AWFs from those databases (like the Police National Computer) which merely store information. Dr Ridley explained: "… the key aspect about analysis is that it gives added value; it gives new information or new lines of inquiry or new interpretations to enhance and move that operational inquiry forward … the analyst is enhanced by a superb speedy data-mining system". But, he added, while AWFs were "beyond reproach in terms of instant retrieval and instant connections of intelligence", analysis was held back by cumbersome data input procedures, which caused delays in information exchange. (Q 441)

107. Mr Wainwright was enthusiastic about United Kingdom participation in AWFs. He thought the service from Europol was, in the main, a high quality service, particularly in relation to receiving tactical and strategic intelligence from its analysis files. Their importance lay in the fact that they were the only access SOCA had to a pan-European database containing millions of data entries about the most serious forms of organised crime operating in the EU. There were strict controls on how that information was held and who had access to it. Europol was currently the only restricted level for the sharing of confidential information between European law enforcement agencies. (QQ 69, 72)

108. The strict controls on access are of course the reason Member States are prepared to trust sensitive information to the AWFs. As Dr Ridley said, "it helps to assuage Member States' fears or caution about giving over information because each Member State still has sole access and control over its contributions within each work file. Only the analyst can see all the different Member States' contributions and pull them together. In a sense it is an ideal tool for obtaining information, voluntary data capture."(Q 456)

Joint investigation teams

109. The Framework Decision of 13 June 2002 on Joint Investigation Teams (JITs)[52] allowed the competent authorities of two or more Member States to "set up a joint investigation team for a specific purpose and a limited period … to carry out criminal investigations in one or more of the Member States setting up the team." JITs may also be set up under the two Conventions on mutual assistance in customs and criminal matters.[53] This allows officers of two or more Member States to work together on a criminal investigation, each State allowing officers of the other State to perform certain investigation activities on its territory.

110. The Future Group has described JITs as "an efficient tool in large-scale, complex investigations requiring concerted, coordinated action on the part of the Member States concerned." Since the entry into force on 29 March 2007 of the Protocol of 28 November 2002, Europol staff have been allowed to participate in JITs in a supporting capacity. This will continue under the Decision, allowing the teams to take advantage in particular of the analytical strengths of Europol staff.

111. The Commission draft proposal for the Decision went further, and suggested that one of Europol's principal tasks should be "the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigation teams."[54] This would have been a major change in its functions, and it did not survive the negotiations. Mr Storr told us: "We were very happy for Europol to have the role of intelligence coordinator. What we were not happy with was seeing Europol have the right to initiate an investigation, which in our view remains a decision which should be for individual chief officers of police within what the law permits." (Q 23) The President of ACPO, Chief Constable Jones, agreed: "[Europol's] key value-added is in facilitation of Member States' law enforcement activities and if it ever got into the position of initiating investigation, it would probably unravel." (Q 403)

112. Ultimately, only the Member State or States controlling the resources are currently in a position to initiate investigations. Europol can of course request or encourage the initiation of an investigation, but that is as far as it can go, and in our view rightly so. The role of Europol in relation to joint investigation teams should be to facilitate, support and coordinate investigations, but not directly to initiate them.

Counter-terrorism

113. When the Europol Convention was signed in 1995, international terrorism did not have the prominence it has today. Terrorist activities were not even among the forms of crime which were Europol's initial priorities.[55]

114. There is no doubt about the importance which the Member States, and Europol, attach today to its counter-terrorism activities. The Analysis Work File on Islamic terrorism is the only one to which all the Member States have agreed to contribute information, and an annual EU Terrorism Situation and Trend Report (TE-SAT) is issued to complement the OCTA. Nevertheless one of our concerns was to see whether Europol's working methods were as well adapted to the fight against terrorism as against other forms of serious crime. Mr Hughes gave us an example. (Q 92)

BOX 8
Europol's role in counter-terrorism

Europol played a key role in an operation led by Greater Manchester Police to prosecute a man for offences related to terrorism. Key evidence was developed from the documents that were seized at his address in Manchester but most of the correspondence between him and his associates in Pakistan and Afghanistan was in Arabic. Europol experts supported that investigation for GMP, translated and analysed the material and found evidence that clearly showed his complicity in supporting terrorism. That man has now been prosecuted, convicted and sentenced.

115. In September 2005 the Council adopted a Decision[56] which obliges Member States to provide Europol with comprehensive information relating to investigations in terrorist cases involving two or more Member States. But when we took evidence from Professor de Kerchove he told us: "Europol it seems (and they have confirmed that) does not get systematic information on terrorist cases … they have identified for the first three months of 2008 six cases, ten per cent of what they have received, where Member States should have sent information. After having asked the Member States to provide information, out of the six cases they received three answers. Out of the other three cases, in two they did not get any information and they got one refusal, based on the fact that it was not police information but linked to an intelligence operation. That means that there is room for improvement for sure". (Q 352)

116. The 2005 Council Decision was thus adopted under the United Kingdom Presidency, two months after the 7/7 bomb attacks. It states in a recital that it is "without prejudice to essential national security interests, and it should not jeopardise the safety of individuals or the success of a current investigation or specific intelligence activities in the field of State security." This, presumably, is the basis on which Member States believe they can decline to comply with it. But we believe that where the Governments of the Member States have unanimously adopted legislation requiring their security services to pass intelligence information to Europol, that is what should be done.

117. The Government must make sure that United Kingdom agencies comply with the 2005 Council Decision on the supply to Europol of information relating to terrorism investigations, subject always to the qualification protecting essential national security interests. We recommend that the Government should persuade other Member States to do likewise.

118. Professor de Kerchove also pointed out to us that Europol had suggested that the 2005 Council Decision should be amended to delete the requirement of Article 2(3) that at least two Member States must be involved in a terrorist act for that Decision to apply; he explained that when you start an investigation you do not always know if another Member State is involved. (Q 353) He thought, and we agree, that the Council should consider amending the 2005 Decision to remove this constraint. However we appreciate that nothing in the Decision prevents a Member State from providing Europol with information even if no other Member State is involved, and we understand that the United Kingdom already does so.

119. Currently Europol is run by the police for the police. In at least some of the larger Member States prevention of terrorism is dealt with, not only by the police, but primarily by the intelligence services through other channels, usually highly confidential bilateral channels. This is the case with the United Kingdom: as we have explained, our national unit is SOCA, which is not responsible for counter-terrorism. They told us that "currently the UK's CT liaison post is provided through the posting of a Metropolitan Police Counter Terrorism Command (SO15) officer to the UK Liaison Bureau. He oversees the flow of a significant amount of information to Europol from ongoing UK investigations and operations and other sources … an increasing amount of operational data is also provided by the recently established regional CT Units, most significantly the Greater Manchester Police CTU."(p 26)

120. We asked Professor de Kerchove whether in his view there should be a more direct link into Europol from Member States' intelligence agencies. He replied that at the time of 9/11 he had suggested creating at Europol a counter-terrorist task force where Member States could send intelligence and security agents. However the suggestion was not well received. "The intelligence community is not very eager to work with Europol. They could [do so] … 'competent authorities' may provide information to Europol. Nowhere is it said that it is only the police as such.[57] The security services, MI5 or the DST in France, could be considered as competent authorities and provide information to Europol. I think in the long run it will happen. I am optimistic on that one, but it will take a lot of time."(Q 357)

121. For as long as communication between a Member State and Europol could only take place through a single national unit, there was no scope for a direct link with intelligence agencies. But since the entry into force of the Danish Protocol in April 2007 there is a provision, which will be carried over into the Decision, allowing Member States to authorise direct contacts between designated competent authorities and Europol. It is thus open to the United Kingdom to designate MI5 as an authority which can have direct bilateral contacts with Europol. Other Member States could of course do likewise. This would implement Professor de Kerchove's suggestion.

122. We are however mindful of the distinction between sending information on counter-terrorism to Europol for law enforcement purposes, and the exchange of intelligence. We suspect that the reasons for the intelligence community's reluctance to work with Europol are twofold: the low level of security clearance of many Europol officials, and the fact that intelligence is already exchanged through SitCen, the EU Joint Situation Centre.[58]

123. We believe the Government should treat with caution any proposal that direct exchanges of intelligence between the security services of the United Kingdom and those of other Member States should take place through Europol.

37 Document 12645/05, pp 13-15. Back

38 Option 40. Back

39 27 March 2008, Document 7801/08 (though the pagination is numbered 7801/07). Back

40 Document 10180/4/05. Back

41 Document 8103/08. Back

42 Council Act of 3 November 1998 adopting rules applicable to Europol analysis files (OJ C 26 of 30.1.1999, p. 1), Article 3. Back

43 See http://www.ialeia.org/awards. Back

44 The Police Chiefs' Task Force was established at the European Council of Tampere in 1999. Its main purpose is "to exchange, in cooperation with Europol, experience, best practices and information on current trends in cross-border crime and contribute to the planning of operative actions". Back

45 Third Round of Mutual Evaluations of the Multidisciplinary Group on Organised Crime (MDG) Concerning the exchange of information and intelligence October 2007 (paragraph 6.2) Back

46 Letter of 23 July 2007 from Rt Hon Tony McNulty MP, Minister of State, to Lord Grenfell; relevant extracts are printed at p 206. Back

47 Option 29. Back

48 paragraph 6.3 Back