Examination of Witnesses (Questions 343
- 360)
WEDNESDAY 25 JUNE 2008
Professor Gilles de Kerchove
Q343 Chairman:
Professor de Kerchove, thank you very much for coming. I am sorry
that we have kept you waiting for a few minutes. We are a little
late in starting. You will realise that this is a Sub-Committee
of the principal European Union Committee of the House of Lords
in London. Our task is to overlook European legislation and manifestations
so far as our Home Office is concerned. We started this inquiry
on Europol just a few weeks back. We are hoping to finish our
evidence sessions before the end of July to produce a report after
the summer recess in the autumn, and when we do produce it we
will send you a copy. We will also send you a transcript because
you realise you are on the record here. We much appreciate your
coming. We are extremely interested in problems which surround
terrorism. Let me begin straightaway. You are responsible for
monitoring the implementation of the European Union Counter-Terrorism
Strategy. Could you explain how the TE-SAT produced by Europol
fits into the European Union's Counter-Terrorism Strategy and
what value does it add to what is going on centrally in the European
Union?
Professor de Kerchove: I see a value
in the process and in the product, in the process to the extent
that Europol and Eurojust pull together information and try to
analyse the information, and work with the Situation Centre, which
is a unit within the General Secretariat of the Council which
collects strategic intelligence from the Security Services, Intelligence
Services, police information from Europol, military intelligence,
open sources so the process itself has some merit because it drives
people to exchange more information and that is good. The second
is just to make public the collective assessment of the threat,
which is by nature extremely important because in this very sensitive
subject it is important that the public be well informed, that
the European Parliament and national parliaments get a collective
assessment of the terrorist threats. Something which I find extremely
important is to have this discussion with the European Parliament
and as often as I can I try to attend meetings of national parliaments
because the Council is developing policies and adopting legislation
which may affect freedoms and in this respect it requires a consensus
in parliaments on the need for that, and in order to tailor the
legislation as well as possible we need to build a consensus in
respect of the threat. The first time I attended a meeting of
the LIBE Committee, which is the committee in the European Parliament
dealing with Justice and Home Affairs, I decided to explain how
we saw the threats. It is indeed important, as I said, to explain
the real nature of the threat. On the plane coming here from Istanbul
I was reading an interesting study produced by a Canadian university
on the threat to human security, and the main message of the paper
was that the threat is declining in respect to Islamic extremist
terrorism in terms of fatalities. If one does not include people
killed in Iraq whom you normally would not call victims of terrorism
as such, it is interesting to have as objective a description
of the threat as possible in terms of number of attacks which
took place, number of attacks prevented, number of people killed,
number of trials and number of people sentenced, because all these
say something about the nature of the threat but also about the
adequacy of our legislation. Something I have asked Eurojust to
look at more closely is to see if the national legislation based
on the EU definition of terrorism can stand trials because in
some cases, for example in Belgium, there has been a decision
of the Court of Appeal—and I will not comment on the decision
but it was a decision which surprised some scholars—interpreting
the Belgian legislation defining a terrorist crime and it seems
that yesterday the highest court in Belgium decided to quash the
decision. All this gives you some information so you have to be
informed and Eurojust has to collect as much information as possible
on the key decisions in the European Union.
Q344 Lord Marlesford:
I find it a little surprising to measure a threat by what has
happened because surely a threat is about what may happen, and
the Trend Report was very gloomy, I thought, and certainly the
British assessment, as we are told every day, is that it is highly
likely that there will be an attack. How do they come to the conclusion
that because not much has happened recently the threat is less?
Professor de Kerchove: That was a question
I got in the European Parliament: if the number of casualties
decreases does it mean that there is no threat any more? I do
not think so. There the intelligence community has something to
say as well because they do not reveal everything. The number
of attacks does not exhaust the assessment of the threat, I do
agree with you.
Q345 Lord Marlesford:
I think I am right in saying that there was quite a gap before
9/11.
Professor de Kerchove: What do you mean?
Lord Marlesford: I mean there had not been for
a few months anything very dramatic immediately before 9/11.
Q346 Chairman:
A gap in terrorist activity.
Professor de Kerchove: Yes, that is true.
Q347 Chairman:
Could you tell us whether the open publication of the EU Terrorism
Situation and Trend Report is sufficient to give citizens of the
Union a rounded picture of the problems they face? It is very
important to think of the effect of all this on the civilian population.
Professor de Kerchove: To a certain extent
it gives some data and it has to be as accurate as possible, but
you need to qualify the data and explain the context. Once again
you have to add the assessment provided by the intelligence community
on failed attacks and that is how I see part of my role. It is
important to ensure that 27 Member States share a common perception
of the threat. It is probably more obvious for the ten Member
States which have been directly confronted with terrorist attack.
Q348 Chairman:
Do you include Estonia in that?
Professor de Kerchove: Because of the
cyber attack?
Q349 Chairman:
Yes.
Professor de Kerchove: Yes, indeed, but
others have not been directly affected. I was in Poland recently.
The terrorist threat is a bit more theoretical there but on the
other hand Poland belongs to the free movement Schengen area and
may have possible targets. Poland has an American embassy. It
may have cells hidden somewhere. It is important to ensure that
it realises how it develops.
Q350 Chairman:
Can I pursue a personal hobbyhorse here? When we are talking about
the civilian population does it come within your remit to think
about what would happen in the aftermath of a very serious CBRN
attack? Does that come within your concerns?
Professor de Kerchove: Yes.
Q351 Chairman:
I have been pursuing for a number of years the concern I have
that, certainly in the United Kingdom, in the event particularly
of chemical or biological attack, in normal circumstances you
would not know until you started getting clinical symptoms whether
you had had that attack or not. I am concerned about the pitifully
low number of people in our emergency services, whether it is
police, ambulance, doctors, nurses, firemen, those sorts of services,
who have been vaccinated for what might be biological agents so
that if you were to suddenly start getting symptoms appearing
when you were not aware of the attack in the first place, which
might have been made a week early, the emergency services would
be wide open to becoming victims of the attack. Is that something
you have ever thought hard about in the EU context?
Professor de Kerchove: We have started
working on that. As you know, the EU CT Strategy is based on the
UK one except that we do not use the four Ps; we have replaced
the last one, "Prepare" by "Response". We
have been very active on two of the four strands and a bit less
on the other two, and one where we need to work more is, of course,
on response. On CBRN the Commission has set up a task force recently
with a view to producing a policy package by the middle of next
year. I cannot say that the EU has designed all the necessary
policies on that yet but during the UK Presidency it started designing
a special arrangement in Brussels to help Member States, because
from beginning to end it is mainly a responsibility for the Member
States. What we do is support Member States. We are not in the
front line, in the driving seat; Member States are. If it is such
a huge attack where more than one Member State is a victim of
an attack the EU may play some role and it has started designing
procedures to help Member States react. It is sometimes difficult.
When you mentioned the vaccine, my predecessor was really very
worried by the fact that the Commission tried to get some information
on the stockpile of vaccine in EU Member States and has never
received full information from the Member States, I suppose for
good and less good reasons. A good reason, of course, is that
it has to remain confidential because you do not say, if you have
a stockpile, how big it is, but also because in the case of a
major attack some might be a bit reluctant to share; and even
large Member States have not provided the necessary information
to the Commission. So at this stage the Commission has dropped
this request but we have to work much more on that, and I do agree
it is a very relevant problem.
Chairman: Perhaps I can come back to you on
a personal basis with that at some future time.
Q352 Baroness Garden of Frognal:
Professor de Kerchove, you have been quoted as saying, "We
need to know whether the Member States are providing enough information
to Europol and Eurojust—which I'm not sure they are",
you say, "- and find out what we can do to make it work".
Do you think that Europol and Eurojust are receiving sufficient
information to make reliable reports and, if not, what are the
implications and how do you see improvements being made?
Professor de Kerchove: You know that
the Council adopted a Decision in 2005 which obliges Member States
to provide systemically to Europol and Eurojust all information
related to investigations (Europol) and prosecutions (Eurojust)
in terrorist cases where more than two Member States are involved.
When I was reporting for the first time to the European Council
I raised this concern and I asked the two agencies to report,
which they did a month ago, and in my recent report I made a first
assessment of the two reports from the two agencies. It is improving
but there is still some room for improvement. Europol it seems
(and they have confirmed that) does not get systematic information
on terrorist cases, I would not say quite often but it happens
that they learn that something has happened or there is a pending
investigation by reading the press or by watching television,
and then they ask the relevant Member States to provide information.
I need to look at what the most recent report said, but I would
say that they have identified for the first three months of 2008
six cases, 10% 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. That confirms
the feeling I had before asking, and the same for Eurojust.
Q353 Baroness Garden of Frognal:
And that would have had an impact on the operational outcomes?
Professor de Kerchove: Yes. Europol in
its report suggests that we amend the Decision of 2005 to delete
the requirement that two Member States be involved in the terrorist
act because when you start an investigation you do not always
know if another Member State is involved, and in order to have
the full picture of the terrorist situation in the European Union
they really ask for all information if possible. That is something
which the Council may consider in the future.
Q354 Lord Young of Norwood Green:
In your discussion paper to the Council dealing with the EU Counter-Terrorism
Strategy you call for the creation of structural links between
Europol and Eurojust. What is the problem with the current framework
for co-operation between these two organisations?
Professor de Kerchove: That is indeed
a concern that I still have. I was surprised, talking to my colleagues
in Eurojust, to learn that they had hired analysts to process
the information provided in the context of the 2005 Decision,
and I said to myself that if one looks at who is doing what in
the Architecture of Internal Security Europol should be the place
where one collects and analyses the information, while Eurojust
is in charge of co-ordinating prosecutions. It would be a duplication
of effort to see Eurojust collecting and analysing information
because it is the core business of Europol. That is the first
concern. The second concern is that, of course, Eurojust has to
perform its task at the request of Member States but the Decision
creating Eurojust says also that Eurojust may undertake some work
on its own initiative based on information it receives from Europol.
That requires that there be a close link between the two agencies
and when Eurojust needs a criminal analysis it just asks Europol
to do it. In the field of terrorism it makes sense, I think, that
Eurojust gets access, if not to 100% of the Analysis Work Files
on Islamic terrorism but at least on the main findings and the
trends and the like. I was surprised to hear that at least two
(but I heard recently three) Member States did not agree because
in the Convention creating Europol there is a veto right for each
state participating in the Analysis Work File. I therefore intervened
in the Council of Justice and Home Affairs in November last year,
insisting and explaining that we were in a unique context because
the Council was discussing at the same time the transformation
of the Convention creating Europol into a Decision and at the
same time some amendments to the Decision creating Eurojust, so
that was the perfect occasion to have a provision in both legislations
building a bridge between the two agencies. It seemed to me a
bit odd that these two agencies, which participate in the same
logic—investigating, prosecuting, bringing people to justice,
supporting Member States' investigations and prosecutions—in
their prospective legislation treat the other one as a third agency
with no special links, such as the relationship between Europol
and the Food Agency or whatever; so I insisted a lot, and I must
say I was not very popular in doing so, but it just reflects some
difficulties or some competition, you may call it, between the
ministries of interior and the ministries of justice. I said in
a recent speech at Eurojust where all the terrorist focal points
were meeting, "It is not UK which is against it", and
it is a bit surprising because in fact the objection came (and
still comes) from countries where the prosecutors and the investigative
magistrates are fully involved in the investigation, they control
the investigation, so in the Member States where they do not want
Eurojust to get access to Europol most of the information goes
to the judicial authorities. I did my best to convince them. I
would not say that I failed, but the Council was in a hurry to
agree on the Europol Decision and have it adopted formally before
the entry into force of the Lisbon Treaty, and Ministers were
a bit scared that if they were to open that box it would procrastinate
the adoption of the Europol Decision. So the compromise in April
was to leave the text unchanged but to adopt the conclusions asking
the two agencies to report by the end of this year and propose
amendments to their co-operation agreement. It is, I think, a
step in the right direction but it will not be possible to amend
the co-operation agreement beyond what the texts foresee and the
veto right remains in the Decision creating Europol, so that may
happen again in the future. It is not only about Eurojust getting
access to the Analysis Work Files of Europol. It is also about
Eurojust providing Europol with all the information it receives
and feeding the Analysis Work Files. That is one point. They should
inform each other when a joint investigative team is set up. They
should try to work together more often and that is something I
try in my function to find : cases where they could work together.
With some colleagues in Washington we were looking for cases where
the two agencies, with the Americans, could work together in the
field of terrorism. That led to the organisation of a meeting
a month and a half ago on jihadists returning from, in this case,
Iraq, where the Pentagon and the FBI decided to share all the
information they had collected in Iraq on jihadists returning
to either northern Africa or Europe. That turned out to be an
excellent meeting and I am trying to convince the two agencies
to multiply that type of co-operation.
Q355 Lord Young of Norwood Green:
Would it help I they were in the same building or co-located?
Professor de Kerchove: I have always
thought that the two agencies should be in the same building.
To me it is very unfortunate that that has not been decided. I
do not know if it is still possible since Europol is building
a new building.
Q356 Chairman:
We are told that it is not possible. We were shown a model of
Europol's new building and we understand the new Eurojust building
will be adjacent but not connected.
Professor de Kerchove: But indeed they
should have been in the same building.
Chairman: Exactly.
Q357 Lord Marlesford:
If I can come in because it seems relevant to what you have just
said, Professor, it seems to me that Europol is very police linked
and I wonder whether there should not be more of a direct link
into Europol from Member States' intelligence agencies, for example,
in our case the Security Service MI5. I know that through SOCA
and all the rest there is information sharing, and I can see some
of the inhibitions that there would be but, given that two of
the Analysis Work Files are very much about terrorism and many
of us feel that terrorism is perhaps the biggest single priority
because of its catastrophic potential, I would feel happier if
Europol were more linked in and that it was not just "pol",
but I am not suggesting changing the name, of course.
Professor de Kerchove: I tried this a
long time ago. After 9/11 it was the Belgian Presidency and I
did my best to push the intelligence community to come closer
to the EU decision-making process. The security services set up
at the time a specific group called the Counter-Terrorist Group
(CTG), which is a sub-group of the Berne Club, which is the club
for the security services, but the CTG is only devoted to counter-terrorism.
At the same time I suggested that one create at Europol a counter-terrorist
task force where Member States could send intelligence and security
agents. It was not a success, to say the least. The intelligence
community is not very eager to work with Europol. They could.
If you look at the Convention, and I have not checked but if you
look at the Decision as well, "competent authorities"
may provide information to Europol. Nowhere is it said that it
is only the police as such. 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. The first step—and that is why I am so much in favour
of that—is what develops at national level. You in the UK
some time ago created the JTAC where the different players share
information and you do that very well. France has UCLAT. Belgium
created what they call OCAM. These are platforms where security
services, intelligence services, customs, police, prosecutors,
share information related to terrorism. Three months ago the Spanish
government organised a meeting in Madrid to explore how these
different platforms could work together, in the first phase not
on an operational basis but on a strategic basis. They have a
lot to learn from each other because the integration of data is
a complicated process. They could have common training and they
can share experiences in integrating different data. You are right:
in the long run that would be the right thing to do, but step
by step. We have to do that slowly.
Q358 Lord Mawson:
In your discussion paper to the Council dealing with the EU Counter-Terrorism
Strategy, you mentioned a lack of co-ordination in the implementation
of the principle of availability. You recommended that the Council
should adopt a common EU policy on information sharing. Can you
describe the positive progress being made in this respect?
Professor de Kerchove: I will start by
explaining why I made this statement. It was because by attending
meetings of the LIBE Committee in the European Parliament (not
only me but colleagues as well) 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. Some,
but I do not agree with the statement, are afraid of creating
a "surveillance society". I think we have to go further
in data collection and data sharing, and in order to achieve that—and
I had, of course, the Lisbon Treaty in mind in saying that—we
need to have the European Parliament and national parliaments
on board. It is then up to the Council and the European Parliament
to define all the elements of an EU policy in the field. The feeling
so far was a bit that the Council was proceeding step by step
like slices of salami and did not provide the Parliament with
a strong vision of where it wanted to go and where it wanted to
stop. It started with modernising the SIS, creating the Visa Information
System, allowing the police to get access to the VIS. The Germans
suggested, but it is not a formal proposal yet, getting access
to EURODAC, another database. The Commission came up with this
proposal to set up a Passenger Name Record system like you have
in the UK. All of this is necessary and in order to get a better
consensus on this legislation I think we need this overall strategy.
That was the first point. The second point was that for purely
logistical reasons some legislation had been discussed in different
groups within the Council, and so you have sometimes lawyers or
police people discussing part of the same subject and sometimes
there is a lack of consistency. That is why in my first report
I strongly recommended, and I think most of my colleagues are
in agreement with this, the setting up of one single working group
within the Council to look at all aspects of the problem. The
first step was done recently by re-setting up an ad hoc working
group on information sharing, which has met or will meet in the
coming days, to look at the way to implement two sets of legislation.
One is what we call the "Swedish initiative", which
is meant to improve cop-to-cop sharing of information, and the
other one is on the Prüm Decision, which is very technical
because it defines all the standards for DNA exchange of information,
fingerprints and the like, so to answer your question it is a
step in the right direction but I hope that as soon as possible
the Council will decide to set up this working group. With colleagues
in the Secretariat we have started working, but we are not that
much advanced, on defining the different aspects of what could
be the EU policy in the field of data sharing and data protection.
Other proposals will come soon. The Commission will come with
the proposal to set up an agency for not all but the main IT systems
in the field of Justice and Home Affairs, the SIS, the VIS, EURODAC
as well, I think. They are all projects on the site of what we
call e-Justice, so all this calls for a good discussion in this
working group.
Q359 Lord Mawson:
Do you agree with Professor Willy Bruggeman that the participation
of Europol in joint investigative teams and the right of Europol
to ask Member States to start an investigation in specific cases
are first but certain steps on the road to a more executive Europol?
Professor de Kerchove: It depends on
what you mean by "executive power". I have always thought
that executive power was mainly the possibility to arrest someone.
It is a coercive power. The answer is yes, when Europol participates
in a joint investigation team you may call it executive power
but it is not coercive power. In the current legal framework,
the current Treaty and even the Treaty of Lisbon Europol is not
given any real executive power. It cannot itself launch an investigation.
However, I am very much in favour of that because for me Europol
is an agency which is there to support Member States' investigations.
In order to show Member States the added value that Europol can
bring I think it has to be involved as often as possible. Eurojust
as well. The question we discussed at the outset on providing
information to Europol and Eurojust, and it is the same at national
level, requires a high level of trust between the police and the
prosecutors and the EU agencies, so if they do not meet each other,
if they cannot realise what it is they can get from Europol, from
the information they provide, they will not do it, or they will
not do it enough. It is, I think, very necessary that Member States
accept having Eurojust and Europol even in the back seat in joint
investigation teams. They have to learn, and if they go to the
field they will learn, and they have to be in a position to show
the added value of what they do. It is not the case yet but where
there are not enough joint investigation teams (JITs), I think
there should be something like 30 JITs. The Spaniards and the
French have created more than ten JITs in the field of terrorism
but on ETA terrorism they do not see why Europol should be involved,
and I can understand that; it is mainly a concern for these two
countries. A JIT has also been set on PKK, I think, between France
and Germany. Europol should participate in this joint investigation
team. I do not know if the UK has set up many joint investigation
teams and if so whether it has involved Europol.
Q360 Chairman:
I think on that note we are really going to have to stop because
we have to catch a train. You have been extremely full in your
answers and very clear. We have found this a particularly interesting
session because terrorism is something which this Committee is
very concerned about and, one never knows, it may return to this
in the future. You have been most helpful and it is most appreciated,
Professor. Thank you.
Professor de Kerchove: My pleasure.
|
