Examination of Witnesses (Questions 160
- 166)
TUESDAY 24 JUNE 2008
Professor Dr Monica G W den Boer
Q160 Lord Marlesford:
Do you think that the reason this has taken so long is that there
has not been treaty provision for it? After all, in theory countries
can instruct Europol collectively without the EU and without European
legislation on treaties.
Professor den Boer: I would use two words
to qualify the reasons, which are (a) intergovernmental, (b) veto.
For instance, under the current political circumstances some Member
States might consider vetoing the elaboration of the clause on
the European Prosecution Service, which is currently within the
Lisbon Treaty. Under a former drafting exercise this clause was
almost kept out, so that is how you see how important the role
of national governance is in the drafting process of treaty revisions
and so on. The primary responsibility in the current situation
still lies with the Member States.
Q161 Chairman:
Referring again to your written evidence, could you say something
more about the implications of the European Parliament "putting
forward interrelated requirements for discharging budgets of EU
Community financed agencies"? How do you think this is likely
to shape governance at EU level in the future?
Professor den Boer: First of all, there
is obviously a normative aspect to this point of view which is:
should we really have an overall architecture for justice and
home affairs governance? I think to begin with it is desirable
if we try and create a framework with criteria for good governance,
and good governance, of course, stands for accountability, transparency,
legitimacy, external control, internal control and so on. With
so many actors in this crowded policy space, as I would call it,
it is difficult for those agencies to get their act together and
I think that the Article 36 Committee, helped by the European
Commission and possibly also the Council Secretariat, could play
a very significant role here. They could even be backed up by
the EU Anti-Terrorism Co-ordinator because, if you try and look
at all this from his perspective, he tries to concert efforts
on anti-terrorism in the European Union. It is awfully difficult
to bring all those actors together so he will only benefit from
a more overall architecture, or at least a framework for governance.
Governance architecture is desirable from the point of view of
transparency and accountability but I also think we should try
and avoid the creation of a Justice and Home Affairs monster that
you cannot control any more because it has become too strong and
it has been supplied with a remit which is too big for us and
which walks away from the national control and the national parliamentary
scrutiny. As an interim arrangement, and in terms of improving
the democratic accountability of Europol in particular, I do not
see a reason why we should not go back to this idea of creating
Parlopol which comes close to the lines of what the Lisbon Treaty
proposes, ie, an early warning mechanism, so that the national
parliaments will be in a position to impose early scrutiny of
pre-policy proposals, if you like, when texts are still in the
drafting process. That should allow parliaments to look at proposals
early and also jointly so that they can inform each other about
what is going on. It has been very difficult, even for our parliament
in the Netherlands, to get hold of the documents on time, especially
also in their mother tongue, which makes scrutiny awfully difficult.
Timing is important, the language is important, and co-ordination
of information is very important, between the European Parliament
and the national parliaments. Mind you, I think the European parliamentary
elections for 2009 offer a very good moment to put this back on
the agenda. Obviously, the national political parties will prepare
the papers in view of the European Parliament elections but they
could definitely try and call for more attention to this issue.
Q162 Lord Harrison:
Do you have a view about the lingua franca that should be used
by Europol? Is it that English de facto has become that
common language? If there were to be a move towards a situation
where de jure in effect it was laid down that English was
the language, what do you see would be the problems and what would
be the benefits?
Professor den Boer: I am not sure I have
a view but I can perhaps say something about it to the extent
that, obviously, working with many different Community languages
is too laborious, too costly, et cetera, so in a working environment
I would allow English and French as the main working languages.
However, when you move up the hierarchy, so you have, for instance,
a Ministerial Council, you will have to allow the official languages
which are being used within the European Union, and that has everything
to do with what I said before, the scrutiny regime. You cannot
really exercise sufficient scrutiny on a paper or a legislative
proposal if you cannot do that in your mother tongue. For pragmatic
reasons, therefore, I think at the working level it should be
English and French, but at the political level the official languages
of the Member States.
Q163 Lord Young of Norwood Green:
Professor, I would like to come back to intelligence-led policing
and it depending upon exchange of information. When you think
about the wealth of information out there, it is not the amount
of information; it is really the quality. How do you strike that
balance so that you do not suffer from information overload and
at the same time there is that scepticism about the security of
exchange of information anyway, so you have a number of facets
to it? The overload thing seems to me counter-productive in trying
to achieve what you want to achieve. It is like panning for gold,
is it not? There is an awful lot of dross before you find a minute
speck, so is less more?
Professor den Boer: I also would like
an emphasis on quality rather than quantity, but within the national
law enforcement environment I still see a very strong preference
for gathering as many data as possible. Obviously, this is enhanced
and facilitated by the many new regimes which we have recently
introduced, such as PNR, Passenger Name Retention. We also have,
of course, the EU Telecommunication Directive. We have many national
ways in which we can gather and collect data on individuals, so
we have stocks and stocks of personal data. It has been suggested
that the Schengen Information System currently contains 20 million
data and we do not know whether they are polluted or contaminated.
We do not really know whether the quality is good or not. That
is a very important aspect because otherwise you make mistakes
in your enforcement chain, I would say. If you do not start with
good quality information then obviously you are going to run up
against a problem somewhere in the process. I would suggest that
here we also need a culture shift. We have to move from quantity-oriented
intelligence gathering to quality-oriented intelligence-gathering,
but we will need some efforts and we need again visionary leadership
within the national police bodies for that to happen.
Q164 Chairman:
Could I end with two short questions? First of all, you mentioned
the possibility of the Italians vetoing various proposals. What
sort of veto are you talking about, because I ought to know this
and I do not? Is it a veto based on the fact that there has to
be unanimity over something or is it the other one under QMV where,
if a nation claims a vital national interest, you have to get
a blocking minority to support you in that to apply what is called
the veto? The veto in QMV terms is an extremely loose definition
which people use without understanding how it works. Secondly,
how would you improve Europol's image from the perspective of
your students?
Professor den Boer: I will take first
of all the question about Member States and their use of veto
powers. The example I gave you was not a veto-related context.
Obviously it is very important even in a drafting process to reach
consensus, because when you know that you are going to be vetoed
later on you might as well just try and create a compromise text.
Yes, the position of the Member States, I think, is extremely
important as long as the Justice and Home Affairs Council votes
by unanimity. Vetoes do not always happen. I know from cases that
Coreper, the Permanent Representatives' Committee in Brussels,
will try and prevent these things from happening within the Justice
and Home Affairs Council, so again this happens in political preparation
of the final decision-making process. In the future, of course,
it may still happen, but when it happened in the past the "salami"
tactic was very popular. The salami tactic happened when the Financial
Interest Convention was going to be adopted by the Justice and
Home Affairs Council. They could not agree on the whole text so
they salami-d the whole text in pieces and achieved agreement
on the heart of the instrument and left the other parts of the
instrument to protocols. This is what happens in the daily reality
of unanimous decision-making.
Q165 Chairman:
But you said that in certain circumstances if there was one proposal
made some Member States would veto it.
Professor den Boer: Yes, but the political
representatives in Brussels would do everything to prevent that
from happening, because obviously it would be embarrassing to
the relevant Minister would lose his good image.
Q166 Chairman:
I know exactly what goes on because I can remember the Germans
applying the veto when I was President of the Agriculture Council.
I remember all the shenanigans that went on around it but that
was a veto where they had to acquire a blocking minority from
other countries to support their claim for vital national interest;
otherwise the things falls, and the British were rolled over back
in 1978 or 1979 when they said this was a vital national interest.
They could not get the blocking minority and they were rolled
over.
Professor den Boer: But, of course, what
the Member States will do is find other ways to circumvent unanimous
decision-making. Look at the Prüm Treaty. This is a form
of enhanced co-operation. It is a snowball effect and later on
you try and make more Member States a member of your partnership
or whatever. Enhanced co-operation will be the future bypass construction,
I think, as long as the veto regime prevails. On your other question,
Europol's image, I think making students responsible for, let
us say, assignments about Europol, making them familiar with the
products of Europol (and many of my students do so already) will
mean they become increasingly familiar and also more and more
enthusiastic about the agency, but the most important thing is
that they will all become truly international police officers
themselves.
Chairman: Thank you. You have been most interesting
and most helpful to our inquiry. We have, very rudely, kept you
five minutes later than your deadline, and wherever it is you
are going will you make our apologies for your lateness? Thank
you so much. We have really enjoyed it.
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