Examination of Witnesses (Questions 146
- 159)
TUESDAY 24 JUNE 2008
Professor Dr Monica G W den Boer
Q146 Chairman:
Professor, many thanks. We are starting four minutes late and
I apologise for that. It is very good of you to find time to come
and see us. You have probably been told already that we are a
Sub-Committee for Home Affairs of the principal European Union
Committee of the House of Lords in London which looks after European
legislation. We are carrying out, as you will know, an investigation
on Europol, which is why we are here. In your evidence, for which
thank you very much, you say that the Department of Public Administration
at the VU University Amsterdam is commissioning further research
with Europol into the governance architecture of the justice and
home affairs field. Could you tell us why the university chose
Europol as a partner? What is the background to all this, please?
Professor den Boer: Thank you very much,
my Lord Chairman, for your introduction and thank you very much
for inviting me to your committee. Your first question relates
to the relationship between Europol and the VU University Amsterdam.
My Chair is a Police Academy Chair on the internationalisation
of policing and Europol is a dossier which I have been following
for many years. Basically, since the inception of Europol I have
been writing about it, and also at the University of Edinburgh
where we did a research project on European police co-operation
in the early nineties. We have a research programme at the VU
University Amsterdam called The Dynamics of Governance. We are
soon going to transform that into a research programme on good
governance of public institutions, and obviously a lot of your
questions revolve around good governance of justice and home affairs
institutions, in particular Europol. We are in the process also
of establishing what we call a security laboratory in which a
few professors who are experts on policing and security congregate
and define joint lines of research, if you like. I think Europol
and the VU University are the perfect match, simply because we
have that experience and Europol itself can be considered as a
very innovative law enforcement agency. It is a truly international
agency which is developing a lot of new and very exciting new
products. That is basically the angle from which I will take it.
We have a few research projects on Europol but also comparative
research on the governance of national police organisations.
Q147 Lord Dear:
Professor, welcome, and thank you for coming today. Can I ask
a strategic question about the institutional design, leadership
and accountability, the whole overview and inter-relationship
of the various EU policing and criminal justice organisations
as you see it? This is a very general question. It could take
a very long time to answer but perhaps you could give us something
in two or three minutes on how you see them inter-relating with
one another and whether improvements could be made.
Professor den Boer: Thank you very much
for that question. I have prepared for the questions so I have
tried to pre-structure my answers. First of all, on the question
of institutional design, I do not think there is an institutional
design. There was no overall plan when, for instance, the Maastricht
Treaty was agreed in the early nineties, and actually you can
see the justice and home affairs policy domain as characterised
by incremental growth, step-by-step gradual development and also,
for instance, an expansion of the mandate by means of recommendations
which were agreed by the Justice and Home Affairs Council and,
of course, sometimes without the possibility for parliaments to
scrutinise those recommendations before they are entered into
force. Therefore, first of all the characteristic has been a gradual
maturation of justice and home affairs governance which could
not always be predicted and sometimes came as a surprise to the
parliaments in particular. Secondly, another very important characteristic
is that this is a governance structure which allows 27 Member
States to be in the driver's seat, and that obviously makes driving
very difficult. The result of that, I would say, is a rather weak
compromise or an agenda which drifts in many different directions,
so that is another important characteristic if you compare it
to Community decision-making and Community agencies. Thirdly,
I would emphasise that much of the justice and home affairs agenda
has been ushered in by Council Presidencies. Every six months
you have the rotating EU Presidency and the priorities which they
have set out have not always been part of an overall or long term
agreed strategy, and I think security crisis in particular has
been pivotal to the development of justice and home affairs co-operation.
Look, for instance, at the impact of 9/11. That has been very
considerable—200 justice and home affairs measures in the
area of counter-terrorism were announced after that terrible event.
I think there is also a leadership question. The leadership must
be awfully difficult for the Director of Europol who is accountable
to a Management Board which comprises 27 delegates from the Member
States, and the decision about the appointment still tends to
be very much a politicised decision, so that is something else
to look at. Accountability is another part of your question. It
is still minimal, certainly when compared with the public institutions
in the realm of national governance. However, I think Europol
is the most mature justice and home affairs agency within the
area of police and judicial co-operation in criminal matters.
That should also be emphasised. It comes out as the most accountable
of those agencies within the EU sector. The accountability certainly
applies to external democratic accountability. In the past we
have seen several instances when the European Parliament tended
to be bypassed even though it had the right to be informed or
consulted, especially in terms of the agreement between Europol
and the US on the exchange of strategic data on terrorism. As
far as legal accountability is concerned, the change of the regime
on privileges and immunities I think should be considered as a
positive step but Europol itself is still not subject to the jurisdiction
of the European Court of Justice. Finally, I think it should be
emphasised that an organisation like Europol is very cautious
about public acclaim of its success because the core of law enforcement
intervention in serious and organised crime lies within the national
realm. Hence, the supportive and co-ordinating capacity of Europol
is meant to be complementary to the law enforcement efforts of
the EU Member States, which is of course dictated by the subsidiarity
principle. It is very difficult to claim social legitimacy, if
you like, support from the citizens, because it should not be
at the expense of national law enforcement pride or efforts.
Q148 Lord Dear:
That was admirably concise, if I may say so. If you were writing
our report for us and were tasked with coming up with three recommendations
to improve Europol from your standpoint, off the top of your head
could you give us three, in no order of priority?
Professor den Boer: External accountability
is extremely important and external accountability would, for
me at least, be divided into three main sectors—democratic
accountability, legal accountability and what I would call social
accountability: the explanation to citizens or communication to
civil society about what this agency is producing, starting with
the latter, social accountability.
Q149 Lord Dear:
That is the most difficult one.
Professor den Boer: An organisation can
start explaining what it does. It is output legitimacy, as political
scientists call it. Just try and advertise the success of your
law enforcement efforts or your intervention, if you like. Democratic
accountability is beginning to change. It is improving. However,
it could still be improved to the extent that the European Parliament
were fully responsible for the democratic control of Europol in
combination (and I emphasise "in combination") with
the national parliaments. My evidence for today is also that we
look back to an initiative that was proposed many years ago, the
initiative of creating a Parlopol, an inter-parliamentary accountability
body for the control of Europol and perhaps also extending to
the other justice and home affairs bodies. Legal accountability
is a very difficult issue. The European Court of Justice is only
minimally responsible for Europol matters. That could be extended
in the future, but the most important thing is that there should
also be a role for the European Court of Human Rights, and this
would be possible through the Lisbon Treaty, but, of course, now
we do not know whether it will ever be fully ratified. Those three
dimensions could certainly be improved and obviously one has to
develop an action plan, so one has to prioritise the one thing
to the other. I think democratic accountability comes first.
Q150 Baroness Garden of Frognal:
In your view does the new Council Decision improve these qualities
in Europol and how do you see Europol being affected?
Professor den Boer: My initial reaction
to the Europol Convention being replaced by a Council Decision
was one of disappointment. The reason why I was disappointed was
because the Europol Convention is obviously a much stronger legal
instrument than a Council Decision. The main difference is that
a Convention requires explicit ratification in all the Member
States. We know, however, that the last time this happened, between
1995 and 1998, it took about two or three years before all the
Member States (and there were even fewer at the time) ratified
it. Obviously, one has made a choice for a less lengthy approval
procedure, if you like, and a lighter Council instrument. The
similarity between the Council Decision and the Convention is
that they are both binding for national law, so Member States
have to follow suit. They are forced to implement the consequences
and embed the legal text within their own national environment
and legislation. However, when the implementation of a Council
Decision is going to be slow the European Commission cannot take
a Member State to the European Court of Justice for failure of
implementation, for instance, but there will be a soft machinery,
the peer review machinery, the Scoreboard mechanism, which will
call Member States to account and say, "Hey, guys, why haven't
you implemented this yet?". It is a soft implementation pressure
on the Member States and it remains to be seen when the Council
Decision is fully ratified in all the 27 Member States. The new
Council Decision is an improvement from the point of view of budgetary
control. It makes the control of Europol more democratic, more
transparent. It transposes a lot of the responsibility to the
European Parliament, which I regard as a significant step forward,
and furthermore the Europol officials will be appointed as Community
officials and that will subject them to the same selection and
integrity regime as their fellow officials in, for instance, the
Organisation for the Fight Against Fraud (OLAF) which I think
is a very comparable agency in terms of remit. And, of course,
it will be easier for the Director of Europol (or I guess at least)
to manage this agency instead of having to make 27 separate deals
with the Member States.
Q151 Lord Harrison:
Professor, welcome. My questions are about the management of complexity.
The Commission has mentioned the ambition and complexity of the
projects in the JHA area, and not just the complexity but also
the ambition of the aims. Do you believe that the difficulties
of managing that complexity are properly understood at the policy
level when people are making these decisions and asking for these
things to be done? Is it fully taken into account that you are
working in a very difficult area?
Professor den Boer: Yes. In the beginning
I tried to follow the whole Justice and Home Affairs Chapter but
I have had to let go of some specific areas like asylum and migration
and so on. I am currently trying to focus on police co-operation,
security co-operation only, but even that is difficult enough.
However, I doubt whether within the European arena there is much
more complexity than within the national arena.
Q152 Lord Harrison:
You doubt it?
Professor den Boer: I doubt that. I do
not know. I really do not know what the yardstick should be here.
If you look at the Netherlands, for instance, I was on a committee
looking at internal security organisations and we counted 120
different organisations holding some sort of responsibility for
security. Sixty of them, half, were executive/operational, and
the other half were policy/co-ordinating/strategic/supportive,
that kind of role, so they held each other in balance. I would
regard that as a very complex environment in which to operate,
so even within the realm of national governance we are constantly
looking at refurbishments, if you like, at rebalancing and seeing
whether organisations could fuse information systems, whether
they could be more closely attached and so on. However, I do share
your observation that the justice and home affairs arena has become
more complex throughout the years. When you look at the role of
the European Commission, yes, the European Commission obviously
could not intervene in this process. They have been put in the
role of participant observer. That is the role they have had to
take. They could not intervene but they could try and steer from
the side. It is a kind of coaching role, if you compare it to
football. From the lines you can try and steer the process a little
bit, especially when it concerns the quality of legislation. I
think the Member States primarily are responsible for organising
this complexity because of a series of steps that were taken throughout
the process. First of all, they are responsible because they allowed
the segregation between three legislative and policy pillars within
the Treaty on the European Union, thereby causing the differentiation
in policy-making, decision-making and the legislative regime.
That is the first dimension of that complexity. Secondly, they
allowed, with the Maastricht Treaty and the Amsterdam Treaty,
and lately, of course, also with the Lisbon Treaty, the creation
of a completely different set of legal instruments (not the Directives
and Regulations that apply in the Community sector but the Council
Decisions and the Conventions in the intergovernmental realm of
decision-making), so that is a second dimension of that complexity.
Thirdly, a dimension that makes the complexity perhaps even worse
is the intergenerational changes throughout the treaties and running
through those the various action programmes. We saw, for instance,
in 1997 an action plan on organised crime which demanded from
all the Member States in the European Union that they create a
national intelligence agency for the processing and co-ordination
of national and international intelligence gathering. We have
also seen the Tampere programme, we have seen the Hague Programme.
We see various anti-drugs programmes, et cetera, which all provide
an impetus to this agency, to Europol, for further organisation,
so of course this means a hectic policy environment for this agency
and it is very difficult to discern a very clear line into the
future.
Q153 Lord Harrison:
If they are guilty of introducing this complexity do they better
understand it now and are there remedies to it?
Professor den Boer: They certainly do
not better understand it. By the way, I do not think they are
necessarily guilty but I think the Member States have allowed
this to happen, obviously because they wanted to protect what
they call the last bulwark of their sovereignty—policing
matters. No, Member States have lost control, I think. When I
try to explain the police environment to my police students, what
the situation is like in Brussels, after half an hour they just
begin to loose interest. Of course, they listen to me but they
are not necessarily interested in participating in the institutional
set-up of the European Union. What that creates is more space
for them to pioneer. What you see a lot within the European Union
is bottom-up constructions—law enforcement, co-operation
across borders, et cetera. The positive thing about Europol is
that it has at least some form of official governance, some form
of accountability, in great contrast to, as I said, the more spontaneous,
bottom-up law enforcement co-operation in the European Union border
areas. I would advocate that Europol closely co-operates also
with these law enforcement pioneers in the European regions.
Q154 Lord Harrison:
I turn to Europol itself now and the management of complexity.
It delivers 93 products and services. Is it overloaded? Can they
do anything about it or are they necessary and they just have
to get on with it?
Professor den Boer: I do not have a view
or a judgment about the quantity of products and services. I really
do not know whether 93 is a lot or a little. It depends for me
on the quality of the products and the way in which Europol is
successful in advocating those products to the Member States or
co-producing them. I am of the opinion that Europol co-produces
some very interesting products, in particular OCTA, the Organised
Crime Threat Assessment, and the European Crime Intelligence Model,
which I am absolutely convinced will help to bring forward intelligence-led
policing in general. I have some other PhD candidates and one
of them is working on law enforcement cultures in the Member States.
What he is currently establishing is that not every Member State
in the European Union is ready for intelligence-led policing yet,
so it must be awfully difficult for Europol to come across and
work itself through those layers of the national law enforcement
bodies and propagate that new model of intelligence-led policing.
The success of the implementation of these models depends strongly
on the national law enforcement leadership, vision and support.
The future for Europol in my view lies predominantly in the development
of law enforcement excellence, best practices, and translation
of those best practices across the Member States because they
are the wider European Union law enforcement community, with the
emphasis on inter-disciplinary co-operation, so not just police
but also customs, immigration, et cetera. Professionalism is very
important and strategic support by means of top-quality intelligence-gathering.
Those products I would say stand out for the future.
Q155 Lord Harrison:
You have identified two particular services to illustrate how
useful Europol can be, but of those 93 I suppose there may be
some services or products which are of lesser importance.
Professor den Boer: For me the difficulty
is that of course I am not a law enforcement official, so I am
looking at this from an academic perspective. The only other product
I would perhaps have questions about is the Analysis Work File.
In 2007 or maybe 2006 Europol ran 18 Analysis Work Files, so you
think, is 18 a lot or is it far too little? I would say that Europol
could potentially be more productive but, and 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.
Q156 Lord Young of Norwood Green:
Professor, you said that some of them are not ready for intelligence-led
policing. Why not and what would it take to get them ready? That
is an obvious question but, given the importance of this issue,
I ask it anyway.
Professor den Boer: I wish I had my PhD
candidate with me. He is an expert on crime analysis and has written
several books on this, mind you, in Dutch, so I guess they are
a little bit inaccessible to you. There is a theoretician called
Hofstede who has performed cross-cultural comparisons between
the Member States but also outside the European Union he has looked
at cultural variables. What you see is that Anglo-Saxon countries,
but also the north-western countries like The Netherlands and
the Scandinavian countries, have a much flatter model, ie, they
are not as hierarchical as the more Mediterranean countries, Latin
countries, Italy, Spain, Portugal and so on, and you can see this
in the law enforcement organisation as more a hierarchical style
of management and direction and so on. It seems to be the case,
although this still needs to be worked out and more research has
to be done on it, that intelligence-led policing works better
in a more horizontal, network style of environment than in a hierarchical
style. The other point in this is that in southern European countries,
for instance, Italy, you have three main police organisations
that all have their own intelligence cultures, and, of course,
the difficulty is to bring the intelligence together. Mind you,
a country like Italy is reasonably successful. They started the
Anti-Mafia Directorate many years ago and they were pioneers in
this sense.
Q157 Chairman:
Professor, you keep using the word "quality". You have
talked about the quality of the products and Lord Harrison mentioned
that, and then you talked about quality of intelligence. What
about the quality of the people within Europol? Do you think—and
this follows a conversation we had over lunch—Europol suffers
because of the threats to a career structure, people coming into
it, that it may suffer because there is no returns policy? Do
you think changes could be made which might ensure that the quality
of people within Europol was improved?
Professor den Boer: With the new Council
Decision regime, which will probably enter into force on 1 January
2010, all the Europol officials will be Community officials so
the selection of the quality of the officials will change anyway,
but yes, I think your question speculates on the national career
patterns within the national law enforcement organisations. I
have not done research on this, I have to say, but I do think
that it depends on the priority within the national law enforcement
organisation that is attached to European police co-operation
whether or not the best people are sent to Europol. In some countries
this may lead to, "Well, this is your last job in your career",
and in other countries it may amount to, "This is the best
job you can get and this is your best way to the top back in the
national law enforcement organisation", so I think you have
a mixed representation of quality within the Europol body.
Q158 Chairman:
Of course, Europol does not really cross the horizon of most individual
police forces—and I am speaking about the United Kingdom.
I spoke only yesterday to the police force in the area in the
north of England where I live, and they told me that ever since
Europol has been set up they have only had contact once, and therefore
Europol does not really come over the horizon very much at all.
Is that a problem and could it be improved, do you think?
Professor den Boer: I do not think it
is a problem. I do not think every police officer, even if he
or she is a top police officer within the national realm, has
to have daily or even frequent contact with Europol, but I think
the right people have to have the right contact with Europol.
We know that Europol still works with the Europol national units.
They are the main interlocutors within the Member States for Europol,
and as long as they are well qualified I am sure that the line
of intelligence runs very well. It is a different thing whether
Europol is a well-known institution and whether it is a well supported
institution. In The Netherlands I think Europol is a well-known
institution, also because we now train our police officers on
international police co-operation even within the initial curriculum.
We are also a close partner with CEPOL, the European Police Academy,
which obviously can help to advocate the name and fame of Europol,
but the other thing is that within crime investigation milieus
Europol is still not very well supported. This is because in the
national crime investigation scene you have, let us say, a cocooning
of intelligence. One breeds his or her intelligence egg and one
has great difficulty sharing that intelligence with Europol. As
I claimed in one of my publications, Europol runs the danger of
being dehydrated.
Q159 Lord Marlesford:
My question is really on the basis of the remit to Europol. Operational
agencies have to implement the policies they are given and policies
derive from information, evaluation and analysis, and ultimately
legislation to implement the policies. In Britain we have had
a terrible record in this field. We have a Criminal Justice Bill
virtually every year and each Bill is often adjusting or changing
the law in every sort of way—and this is not only under
the last decade of the present Government but previously as well.
To take an incredible striking example from the previous administration,
the previous Conservative Government at one moment introduced
a law which said that in sentencing previous convictions were
not to be taken into account. Of course, it did not last long;
it had to be changed. What I am really asking you is, do you think
that there is any way in which you could suggest that the European
Commission in particular can improve the remit which ultimately
makes Europol function more efficiently?
Professor den Boer: To the extent that
the European Commission can influence this process, which it can
effectively only do after the entry into force of the Lisbon Treaty,
let us be realistic about this, I think the European Commission
should try and take up the Corpus Juris project again. The Corpus
Juris project tries to harmonise the criminal laws within the
Member States to the extent that obviously there is something
like Euro crime so they have to work out the subsidiarity principle.
There is no harmonisation necessary across the whole spectrum
of European or national criminal law but there is, let us say,
a fragment, for instance, environmental crime or the trafficking
of human beings. There are several serious and organised crime
forms which would fall within the scope of a European criminal
law. I also think that the European justice and home affairs arena
could be further furnished, if you like, with other institutions,
for instance, a European Prosecution Service. Again, for that
we will need the full ratification of the Lisbon Treaty. That
would allow a gradual growth of Eurojust into the European Prosecution
Service. These are the two elementary necessities to build a good
quality justice and home affairs arena.
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