The birth of the EU’s Interior Ministry?
01 January 2003
The final report of Working Party X ("freedom, security and justice") for the Convention on the future of Europe proposes changes to the structure of decision-making on third pillar issues (policing and legal cooperation) which raise fundamental constitutional and political questions.
In particluar this article looks at its proposals the creation of a potentially hidden and unaccountable committee to coordinate EU-wide police cooperation, internal security and external border management.
"Strengthening operational cooperation"
The introduction to the Working Party report says that “Citizens need to feel a proper sense of "European public order" ("ordre public européen")”. To bring this about a "golden rule" is proposed to:
Introduce, as much as possible, a separation between "legislative" and "operational" tasks"[1]
The key section of the report says that "current operational collaboration lacks efficiency, transparency and accountability". Efficiency, it is argued, is hampered because "operational responsibilities are split" between national police and judicial authorities, Europol, Eurojust and OLAF (fraud). The example given is the "efficient control of the Union's external borders".
It is true that current operational cooperation lacks "transparency and accountability". Numerous issues come to mind, the Schengen evaluation reports are kept secret, so too are most of the documents on EU-US cooperation and opinions of the Legal Services, and the workings of the Police Chiefs Operational Task Force etc. As to accountability on "operational collaboration" there are no mechanisms for parliamentary or public scrutiny of the implementation of policies - save for sanitised annual reports. The Working Party proposals offer little or nothing to correct these problems, rather it want to make operational matters even more secretive and even less accountable.
To understand the fundamental nature of the proposal, to separate "legislative" and "operational" tasks, it is necessary to step back for a moment and put the idea in context. At the European level, a number of stages are involved in a democratic political process in respect to third pillar matters:
1. Treaties (setting out the legal and constitutional basis)
2. "Legislation", based on the Treaties. This may be binding or allow for "approximation" (that is, in a binding form that brings national laws into line but adapted for national traditions and laws)
3. "Policies" may be defined in "legislation" or be defined in subsequent decisions - the latter is particularly the case in the "third pillar".[2] The term "policy-making" is thus confusing as it can apply strictly to "legislation" or to policies adopted later which are based on the legislation[3]
4. "Operational issues" are based on legislation and defined in policies, which in the third pillar often take the form of Decisions, Recommendations or Conclusions, or in some cases are exercised by an EU agency
5. "Operations" per se take place on the ground, for example, controlled deliveries, the surveillance of suspects, patrolling the seas for migrants etc
6. "Evaluations" concern reviewing a series of "operations" as to their effectiveness or otherwise, which may or may not leave to a review of policies
7. "Changes in policy" can come about in a number of ways. At present changes usually come about because officers, agents and officials want more powers and put a proposal to the Council.
8. To come full circle, fundamental changes result in the amendment of Treaties.
With the sole exception of point 5 - actual "operations" - all the other stages (with a few additional, very narrowly defined, exceptions) should be subject to parliamentary scrutiny and public debate. A corollary to this is that all documentation should be publicly accessible, subject again to a few, very narrowly defined exceptions.
Thus while parliaments and civil society do not have a right to see information or "intelligence" held on<