Governing European Policing: some problems and prospects

INTRODUCTION: ‘DEMOCRATIC DEFICITS’ IN EUROPEAN POLICING

The question of security today looms large in European politics. In response to various apprehended ‘threats’ to Europe, its citizens, and its borders (drugs-trafficking, illegal migration, money laundering, the forging of Euro’s, international terrorism and so forth) the European Union (EU) has over the last decade or so assembled an increasingly expansive and robust policing capacity. In the process, the practice of policing - long considered as a constitutive element of the legal and political sovereignty of modern states - has in various ways been unhitched from the nation-state and resituated within ‘networks’ of actors operating across national frontiers. Among the most noteworthy of such developments are the following:

A bundle of programmes and initiatives oriented to making flesh the EU’s aspiration - following the 1997 Amsterdam Treaty - to become an area of ‘freedom, security and justice’. These activities are now pursued both under the supranational First Pillar (concerned with visa and asylum policy and cognate matters pertaining to the free movement of persons) and the intergovernmental Third Pillar covering police and judicial cooperation. In what is perhaps a telling indicator of the speed and direction of policy activity in this field, EU interior ministers agreed at the 1999 European Justice Council in Tampere, Finland to a ‘programme of work’ equivalent in scale to that which led up to the formation of the ‘single market’ in 1992 (den Boer and Wallace, 2001: 517).

An extension and thickening of professional police/criminal justice networks across Europe - much of it occurring under the umbrella of the Third Pillar. Prominent among the developments taking place here have been the advent of an Operational Task Force of European Chief Police Officers (a body which has since September 11th been accorded responsibility for coordinating anti-terrorist efforts within the EU (Statewatch 2001a)); ‘twinning’ arrangements between member state police forces and those in Accession States; and the forthcoming launch of a European Police College.

The establishment of Europol. Following its creation under the terms of the 1992 Treaty of Maastricht, and early life as a Drugs Unit, Europol became fully operational in 1999. Its field of formal legal competence now reaches beyond drugs to encompass illegal immigration, trafficking in human beings, stolen vehicle trafficking, money laundering, currency forgery (with especial reference to the Euro), terrorism and the smuggling of nuclear materials. Its principal mode of operation - or ‘core business’ - lies in the ‘exchange of information and intelligence’ (EDU/Europol Annual Report 1997: 2), an activity coordinated through an EU-wide network of liaison officers (Bigo 2000a). In undertaking this role, Europol maintains a database of ‘intelligence’ on transnational crime which it deploys to provide national forces with crime analysis and ‘technical expertise’. Following the aforementioned EU Justice Council in Tampere, moves are also afoot to enable the organization to establish joint investigative teams with member state forces and to play ‘a key role in supporting union-wide crime prevention, analysis and investigation’ (Europol Annual Report 1999: 5) - a role buttressed since 2000 by the advent of a European Public Prosecutors’ Office (or ‘Eurojust’).

A series of bi- and multi-lateral arrangements between member state police forces designed to facilitate information-sharing and ‘on-the-ground’ operational cooperation. The key developments here (such as the International Contact Centre in Maastricht, and the Police and Customs Cooperation Centre in Offenburg that oversees the French-German ‘border-zone’ (Nogala, 2001)) have followed the Schengen Agreement; forming part of a series of ‘compensatory’ law enforcement measures - rights of hot-pursuit across ‘borders’, the Schengen Information System etc. - that accompanied the lifting of internal borders between signatory states. Such agreements also however include Anglo-French police cooperation around the Channel Tunnel (Sheptycki, 1996).

The onset - as part of the European Defence and Security Policy instituted under the EU’s Second Pillar - of a permanent ‘crisis management and intervention’ capacity at the European level. This has involved the formation of a stand-by ‘rapid reaction force’ - encompassing a combination of military and police personnel - designed to perform peacekeeping/civic reconstruction functions at various ‘trouble-spots’ around the globe (Cavallier, 2001). This ‘force’ - which enables the EU to perform what is in effect a potentially far-reaching policing role - has been most significantly mobilized in the aftermath of the war in Kosovo (Caygill, 2001).

These developments - which are simultaneously a product of, and contributor towards, the wider project of EU polity-building - are giving rise to new sites of social power within, between and beyond Europe’s nation-states. [1] As such they raise a number of concerns. They are, in the first place, arguably being propelled by a securitizing discourse that evinces a powerful tendency to colonize other domains of public policy and sideline/trump considerations of accountability and human rights. [2] This tendency, which was already afoot prior to September 11th, has deepened and accelerated in the aftermath of that day’s events - witness the hasty formulation of an EU-wide definition of ‘terrorism’, and the urgency suddenly accorded to the much-debated and long-stalled European arrest warrant (Statewatch, 2001b and c). We might allude, secondly, to the lack of transparency and restricted information flows that characterize policy making in the justice and home affairs field, and attend the operations of both the Europol and Schengen Information Systems. And we might point, thirdly, to the marginal role played by both national legislatures and the European Parliament in this domain (den Boer and Wallace, 2001: 509), and to the fact that Europol’s activities remain unjusticiable before the European Court of Justice. The direction, pace and substance of European policing is, in short, being determined by bargaining among networks of bureaucratic and professional elites (Bigo, 1994) whose actions have been largely disconnected from process of public will-formation and democratic scrutiny, whether at national or European levels.

All this matters for several reasons. It indicates, for instance, that police cooperation is making its own modest but not insignificant contribution to the de-legitimating distance that has opened up between Europe’s political classes and its citizens; something that has post-Maastricht begun to trouble EU leaders, and which is currently giving rise to a flurry of official activity about the quality and future forms of European governance (European Commission, 2001). To this we might add that these democratic ‘deficits’ assume particular significance in respect of institutions and policy networks possessing (or ‘steering’) the means of legitimate surveillance and, potentially, violence; bodies that can impact for better and worse on the quality of life of Europe’s peoples - EU citizens and non-citizens alike. The means by which this public power and social good is allocated and made responsive to different ‘publics’ is clearly of some import.

How then might we best respond to this situation? Is it possible to develop a policing capacity in Europe that contributes not in some narrowly-envisioned, liberty-encroaching sense to the ‘security’ of citizens, but, more broadly, to the ‘freedom’ of citizens understood in Pettit’s (2001) terms as ‘non-domination’. Can European policing, in other words, be fashioned in ways that enable it to contribute positively to bothpublic safety andthe strengthening of democratic rights and values? Moreover, what kinds of governance arrangements might best enable the field of European policing to be reconfigured in this way?

My purpose in this paper to set out some possible answers to such questions. The discussion proceeds as follows. I seek, first of all, to clear a little ground by offering a critique of two currently prevalent and - in certain quarters - appealing responses to European policing’s democratic shortcomings. Secondly, I identify some key properties of the European policing field that future regulatory strategies must take proper account of. I then outline a framework for regulating European policing networks in ways that sustain considerations of equity and democratic accountability and sketch some tentative institutional proposals that can advance such a ‘project’. A brief conclusion assesses the prospects for this project within contemporary European politics.

TWO CUL-DE-SACS IN CURRENT EUROPEAN POLICING DISCOURSE

There are two main responses to the - alleged - democratic shortcomings of European police cooperation prevalent in current political and policy discourse; responses sometimes explicitly mobilized by actors operating in the field, sometimes implicit in professional practices and policy utterances. I consider both of these positions to be cul-de-sacs, actively unhelpful ways of thinking about the future governance and legitimacy of European policing. I want briefly, in this section, to set out why.

The first - which has, at one level understandably, been much emboldened in the wake of September 11th - is responsible for the insertion of the word ‘alleged’ into the above sentence. For it either denies that European policing currently exhibits any serious legitimation ‘deficits’, or else holds that these pertain wholly or mainly to its lack of effectiveness and can thereby be remedied by removing the barriers that continue to stand in the way of enhanced performance. The central - if sometimes implicit - move here is to conceptualize legitimacy as social legitimacy (cf. Anderson et al., 1995: 267). This latter term couches legitimacy in terms of whether forms of cross-border police cooperation are found to be ‘acceptable’ to Europe’s citizens; such acceptance flowing from the perceived performance of European police institutions in countering a range of criminal ‘threats’ and thereby contributing to the public good of security. There are of course aspects of legitimacy that are properly addressed by such a conception. The legitimacy of any social institution plainly has something to do with - and is, to this extent, inseparable from - its performance in accomplishing its stated purposes. Yet there also exist good reasons for holding that the legitimation of power cannot, by these means, be reduced to matters of effectiveness. Let us consider two.

Such a reduction forgets, first of all, that the social good to which European policing seeks to contribute - security - is one whose meanings remain contested; that can be pursued through a range of different means, and which requires balancing against the claims of competing goals and values. How - given the impossibility of complete security for all - are scarce policing resources to be distributed and the claims of different constituencies adjudicated between? What combination of police and other wider social resources are to be mobilized in pursuance of public safety? What trade-offs are to be made between security and other desirable goods such as human rights and accountable public power? To the extent that puzzles such as these are ineluctably raised in any consideration of the contours and future shape of European policing, effective performance cannot adequately stand as the sole criteria against which its legitimacy is judged. Rather, such legitimation requires deliberation on precisely what - against the background of these competing social possibilities - is to count as ‘effective performance’. In its failure to recognize this, the politics of what Habermas (2001: 8) calls ‘legitimation through outcomes’ unjustifiably ‘presupposes a consensus on what goods people want and an indifference to who delivers them, how and amongst whom they are distributed’ (Bellamy and Castiglione, 2002: 13). In short, it ties legitimacy to the narrowly-conceived pursuit of ‘security’, rather than to the institutional character of the polity within which conflicts over the meanings of security, and the means by which this good is best secured, are deliberated upon and - however provisionally - settled.

This conception of legitimacy evinces, secondly, a powerful tendency to become self-confirming - amounting to little more than law enforcement bodies responding to popular anxieties that are in part constituted through the in/securitization projects of political elites, the mass media, or police institutions themselves (Bigo 2000b). This likelihood seems especially pronounced in the European policing field, where police agents and agencies are concerned with a terrain of transnational ‘threats’ that remain experientially remote from the quotidian lives of most EU citizens, and where issues are often framed in highly mediated, symbolic terms. When one couples this with the paucity of institutional mechanisms through which public authorization can be actively elicited or withdrawn, mechanisms that fall some distance short of meeting the stipulations of any robust framework for the legitimation of power (cf. Beetham, 1991: ch. 2; Beetham and Lord, 1998), one begins to see social ‘legitimacy’ as sufficiently partial and reductive as to not properly warrant the nomenclature at all. The passive indifference of the many, and the impassioned - not infrequently xenophobic - demands of the noisy, or powerful few, cannot reasonably ground the democratic legitimacy of European police networks.

The second position prevalent within current political discourse is of a rather different, and on occasions competing, order. It does not so readily deny that transnational police cooperation suffers from legitimation deficits - on the contrary, cross-border European policing is viewed here as raising some potentially profound democratic problems. These problems are, however, treated as arising from a single source - the remoteness of European policing forms from national mechanisms of oversight. The ‘solution’ is consequently seen to lie in enhancing the role of national political and judicial institutions so as to reduce that remoteness and the legitimation deficits that accompany it.

We might term this outlook - following Neil Walker (2000: 256-8) - the national sovereignty trap. Walker uses this term to characterize the discourse of actors who respond to the movement of legal and political power from member states to the EU (and the democratic shortfalls that have accompanied this process) by striving either to claw these powers back for the nation-state, or else to allow national parliaments to exercise more leverage over what is now performed at the European level. Given the fact that our received democratic lexicon - of membership, representation, participation, accountability and so forth - is saturated with presumptions concerning the sovereign primacy of states, this should hardly surprise (Eriksen and Fossum, 2000a). Nor am I seeking to deny that nationally-situated modes of accountability are likely to retain an important place in any coherent regulatory politics of European policing. Such mechanisms - as Walker points out in this volume - possess some distinct advantages over those one might envisage at a European level; not least that they operate in contexts where some kind of ‘common public culture’, and the minimum levels of civic solidarity upon which its institutions depend, are already in place (Miller, 1995: 21-27).

Cast in such one-dimensional terms, however, this remains a trap; a discourse that stands in the path of developing democratic forms properly fitted to the unique political order of the European Union. This is especially so when it operates - as it does, most often, in the British case - as the barely concealed code of political and social movements whose aim is to call a halt to, even undo, the entire project of European integration - in justice and home affairs as elsewhere. Addressing the democratic deficit in the place at which it arises - by strengthening European political institutions, or by establishing more robust connections between national and supranational modes of governance - would strike such movements as abhorrent. The ‘choice’ between national and post-national regimes of regulation remains here obstructively posited as just that - in zero-sum terms as a choice.

Yet even at its best, when animated by well-intentioned democratic sensibilities, this position neglects to register the shifts in policing capacity that have already taken place, shifts that have significantly empowered policy networks and professional actors above the level of the nation-state. To this extent, it remains trapped within an - often implicit, taken-for-granted - framework of single, competing state systems; one that is insufficiently alive to the advent of plural systems of police authority across Europe, and ill-equipped to think through the complex problems of coordination, representation, transparency and institutional design that emerge - in a revised light - in its wake. A regulatory strategy organized around forms of ‘indirect’ oversight through national legal and political structures no longer offers - on its own - a viable means of producing legitimate and effective European police networks. It is akin to strengthening the door of a stable the horses have long since vacated.

PROPERTIES OF THE EUROPEAN POLICING FIELD

I want now, in a more constructive spirit, to formulate a way of thinking about the governance of European policing that seeks, in sharp contradistinction to the two prevalent positions just discussed, to reconfigure the field in ways that sustain - and are sustained by - considerations of equity and democratic dialogue. If this project is, however, to secure any critical purchase on extant forms of cross-border policing it must attend closely to the specific institutional, political and social dynamics of both the field of European policing and the wider polity of which it forms part. It is to furthering an understanding of these dynamics that my remarks in this section are aimed. Four points might usefully be made.

Such specificity demands, first and foremost, that we think about designing regulatory arrangements that have some affinity with the EU’s functionally variable structure of multi-level governance - the cap must, in other words, fit (cf. Bellamy and Castiglione, 2000). This requires not merely ‘stretching’ concepts that have been tied historically to ‘the territorial logic of the state’ (Eriksen and Fossum, 2000a: 7), nor simply grafting national institutional forms onto the political body of the EU. It means also, more specifically, recognizing the limited value of many established ways of thinking about police accountability forged in the context of single national systems. At the very least, the lessons learned in struggles for democratic policing across different nation-state settings need to be adapted in the light of the unique regulatory puzzles posed by plural policing in the EU.

The future governance of European police networks has to come to terms with a field composed of dispersed, though overlapping sites of power and authority - some formally constituted, others more opaque and shadowy; sometimes subject to extant sub-national and national structures of oversight, but increasingly operating across frontiers in the absence of clear channels of democratic accountability. This situation necessitates some innovative thinking about the precise complex of subnational, national and supranational governance mechanisms best suited to the task of rendering European policing more democratically responsive - not only in respect of particular bounded institutions such as Europol, but also when it comes to bringing under closer supervision those formal and informal networks of police elites and Third Pillar officials that currently evade sustained public scrutiny. Such thinking is faced, moreover, with the problem of how, indeed whether, cross-border policing can be governed in ways that help to nurture the kind of European demos and public sphere upon which effective post-national democracy ultimately depends. As things stand, these are both fragile entities rooted in some fairly barren soil. [3]

Secondly, one must recognize that European policing is a largely informationalized activity. To say this is by no means to deny the spread across different sites within Europe of new forms of operational cooperation between national police forces, some of which I alluded to earlier. It is, however, to emphasise that cross-border policing (think of Europol’s modus operandi, or the central place occupied by the Schengen Information System) remains a practice oriented not to the on-the-ground delivery of visible police functions such as arrest, patrol or crowd-control, but towards supporting and shaping such practices through the generation, storage and dissemination of information (Sheptycki, 1998). Some policing commentators have been inclined to conclude from this - or, more particularly, from the barriers that currently impede the effective transaction of cross-border information-brokering - that European policing is somehow peripheral, non-operational, even largely mythical. This, in my view, is a mistake. It fails to notice several cognate trends occurring within both national police forces in particular (Ericson and Haggerty, 1997) and contemporary surveillance practices more generally (Lyon, 2001); and underestimates the import of those activities that are actually taking place on a specifically European level (e.g., Baldwin-Edwards and Hebenton, 1994; Joubert and Bevers, 1996). For present purposes, the pertinent point about such activities is the low public visibility they accord the institutions and practices of European police cooperation - something that future regulatory strategies need to take due account of.

Thirdly, and relatedly, cross-border police cooperation remains for the most part experientially distant from the everyday lives and outlooks of Europe’s citizens - a practice such citizens have little unmediatedsense of. [4] While this of course holds in large measure in respect of police practices within European states, intra-national policing retains both a visible presence in local social relations and an orientation to dangers about which citizens often possess some personal experience or situated/local knowledge. For the most part, beyond those locations where the effects of cross-border organized crime manifest themselves with a certain concentrated acuteness, this holds to nothing like the same degree at the transnational level. Here law enforcement agents operate mostly ‘behind-the-scenes’ in response to ‘threats’ that are either i) obscure to lay understanding by virtue of the secrecy and technical expertise that surround them (e.g. money laundering, counterfeiting Euro’s); or ii) apparent but rather ‘placeless’, flowing across frontiers in ways that remain ‘at-a-distance’ from the lived social relations of particular European localities (e.g. illegal migration, the cross-border trafficking of people, drugs, or stolen goods). When one couples this with a regime of media reporting that combines routine inattention to developments in European policing/criminal justice, with an often zealous, xenophobic focus on the ‘dangers’ posed by asylum-seeking, or transnational crime, or terrorism, we can begin to see why the European policing field is today marked by an ascendant securitizing logic - one that threatens in the aftermath of September 11th to transmogrify into a permanent emergency mentality. The effects of this mentality, and the forces that serve to sustain, or seek to disrupt, it, are matters that a plausible regulatory politics of European policing has to come fully to terms with.

Fourthly, one needs to address the fact that European policing is markedby adeep asymmetry in the social distribution of its benefits and burdens. Such asymmetries of course also obtain within sub-national and national contexts - policing burdens being commonly experienced by the most economically and socially disadvantaged individuals and social groups. Yet there are processes in play within nation-states (traffic regulation, the enforcement of soft drug laws, and so on) which mean that policing remains for ‘law-abiding’ citizens a potentially double-edged sword; one whose burdens might periodically fall upon them, or those close to them, in ways that can make the control of police conduct (and lines of accountability for remedying police misconduct) an experientially pressing concern. In the field of European policing, however, these benefits and burdens have been almost entirely de-coupled - the policing of transnational crime being an activity directed largely at Others (migrants, organized criminals, drugs-traffickers etc.) on behalf of us - Europe’s citizens. These various categories of Other are, moreover, both routinely represented as alien and dangerous, and generally lacking in the cultural or political capital needed to make them anything other than marginal to the lives and sympathies of the majority of Europe’s citizens.

These considerations matter for two principal reasons. On the one hand, they help to explain the relative absence across Europe of public demands for more democratically responsive forms of cross-border policing, and the ease with which Europe’s political and police elites can secure ‘legitimacy’ by dramatizing selected threats and indicating what is being - or ‘must’ be - done to repress them. Yet they also warn us of the risks that attend strategies of democratization in this field, risks that inhere in creating institutional spaces that merely enable voice to be given to the anxieties and untutored prejudices of European citizens vis-à-vis the threat posed by ‘alien’ or ‘criminal’ Others.

PUBLIC JUSTICE AND EUROPEAN POLICING

Is it possible then to develop regulatory arrangements capable of enhancing the democratic legitimacy of European policing while at the same time foreclosing - or at least minimising the risks of - such populist, majoritarian outcomes? I believe that it is and want in this section to try to make good this claim. I do so by reconceptualizing the problem of democracy in European policing around a principle of public justice; one oriented to maximizing levels of public consent for policing forms and practices without impacting detrimentally on the rights and entitlements of the individuals and social groups affected by policing decisions.

This theoretical strategy builds upon - and extends - my recent work on the governance of plural policing in national contexts (Loader, 2000; see also Loader, 1996: ch. 7). In that earlier intervention, I set out the composite elements of such a principle (a politics of recognition, of human rights, and of allocation) and indicated how they might serve to regulate plural policing networks in ways consistent with considerations of democratic deliberation, effectiveness and equity. My task now is twofold. I want first to consider how, taken together, the three constitutive moments of public justice offer a framework for governing European police institutions and networks in ways that enable them to: i) contribute more fully to public safety and the realization of democratic values (and, in this sense, to ‘freedom’ grasped in Pettit’s terms as ‘non-domination’), and ii) help give form - in one specific domain of EU activity - to the nascent idea of a post-national European citizenship. Secondly, I want to suggest - by means of some tentative proposals for institutional change - how the idea of public justice can be put-to-use in a manner that can remedy some of the thorny problems of coordination, responsiveness and transparency posed by the plural sites of power and authority that compose the European policing field. The discussion is organized around each of the concept’s key dimensions, starting with human rights. [5]

Rights

The positive role of a politics of rights within a broader conception of public justice is to militate against the related dangers of illiberal majoritarianism and populist authoritarianism. While the dynamics clearly differ in each case, these dangers remain associated with both opaque, bureaucratic decision-making processes, as well as those informed by more expansive forms of public recognition and representation. In either case, rights politics operates in a similar way: to delimit the outcomes of institutional decision-making to those that demonstrably avoid either i) prejudicing the active rights of any individual or social group affected by relevant decisions; or ii) being disproportionately detrimental to the other legitimate interests and aspirations of such individuals and groups.

In these respects more robust regimes of rights protection constitute the minimum necessary conditions for developing European policing forms consistent with the realization of freedom as non-domination. Such a politics requires, in practical terms, the full application of the EU’s Charter of Fundamental Rights to institutions and processes of police cooperation, as well as the establishment of agencies - a European Police Ombudsman perhaps - tasked with routinely monitoring the human rights performance of cross-border police networks. It equally demands making Europol’s activities justiciable before the European Court of Justice; a reform advocated recently by both French Prime Minister Lionel Jospin and German Chancellor Gerhard Schröder, as well as by the present Justice and Home Affairs Commissioner Antonio Vittorino (Jospin, 2001; Schröder, 2001). Rights-based considerations have a particular purchase, as well, in areas of cross-border policing which are either technically specialist (such as actions against money laundering), or remote from the routine experience of the vast majority of EU citizens (such as the operation of the Schengen Information System). In both of these domains, matters of due-process constitute the main democratic imperative. The cultivation within European policing bodies of organizational cultures that balance security orientations with the aim of upholding human rights also stands as a pressing political priority here, not least in seeking to counter-act dominant ‘securitizing’ agendas (cf. Independent Commission on Policing for Northern Ireland, 1999: ch. 4).

Given the juridically-encoded character of the EU polity, and the levels of engagement with human rights questions current among both European politicians and officials and various non-state actors, rights politics stands today not only as the dominant means of acting upon the question of European citizenship, but also as the most practically salient vehicle for reforming European police institutions in ways that offer some hope of tempering ascendant securitizing agendas. This does not mean, however, that rights discourse represents a sufficient - or even optimal - conduit for the connected, mutually reinforcing tasks of deepening postnational citizenship and creating more responsive, transparent European policing forms. More robust rights protections ought clearly, for the reasons indicated, to form part of any coherent programme for the reform of cross-border policing - especially in a policy domain where the generation, storage and dissemination of information has become so central. Such protections would thereby give effect - in an increasingly significant field of EU activity - to the European Commission’s stated objective of producing more ‘open’ and ‘accountable’ governance within Europe. We need nonetheless to retain some scepticism towards rights and a clear-headed sense of their lacunae. Rights discourse - concerned as it is with placing protective capsules around individuals that delineate the space within which agencies of governance can legitimately act - projects a juridical, somewhat ‘thin’, conception of citizenship that makes a necessary but ultimately limited contribution to debates about resource allocation and the character of democratic participation within the EU polity (Bellamy, 2001). It remains, as such, but a partial remedy to the democratic deficits that attend European policing.

Resources

The politics of resources (or, if one prefers, allocation or distribution) is concerned with establishing institutional mechanisms whose purpose is to ensure that all citizens are provided with a ‘fair’ share of available policing goods; something that requires attention both to the unwarranted ‘over’ (or overly invasive) policing of particular individuals or social groups, and to the inability of disadvantaged citizens and communities to acquire a proportionate level of such goods (cf. Johnson, 1999: ch. 10).

At a European level, this has two plausible levels of application. It directs attention, first, to the balance that is to be struck between the funds taken up by the field of justice and home affairs and those available for other social goods delivered by the EU. Given the momentum that justice and home affairs have assumed following the formation of the EU into an ‘area of freedom, security and justice’, and the security imperatives that currently animate this field of activity, such questions of ‘balance’ have become both pertinent and pressing. They also intersect closely with the European Commission’s stated aspirations concerning the delivery of ‘coherent’ and ‘effective’ public policy. Against such a backdrop, the above allocative principle might usefully function as an orientating device, serving to remind Third Pillar officials and European police elites, as well as actors within civil society, of the powerful capacity of narrowly-envisioned security agendas to: i) swallow-up ever greater proportions of limited budgets, and ii) permeate - and ‘criminalize’ - other fields of social policy activity in ways that undermine their overall coherence and effectiveness.

The question prompted by such a politics within the justice and home affairs domain itself surrounds the issue of how governmental resources are (to be) allocated; and, in particular, with finding ways of ensuring equitable distributions of necessarily scarce ‘security’ resources. Who is to determine how Europol formulates its annual priorities and allocates its budget? What proportion of Third Pillar funds should go towards training police officers in Accession States, or monitoring xenophobia and human rights abuses, or protecting non-EU nationals from organized human trafficking? What criteria ought the EU to deploy when deciding in which of the globe’s conflict zones to mobilize its emergent ‘crisis management’ capacity? These are urgent, topical questions, each of which require the claims of different regional and political interests, social groups and, indeed, principles of ‘good governance’ to be weighed and adjudicated between. They are also conundrums for which a conception of ‘fair’ allocation of policing resources could act as ‘fundamental ordering principle’ (Held, 1992: 226) informing decision-making across a multiplicity of sites; one that could afford cross-border police cooperation potentially much greater coherence. [6]

Such possibilities also depend, however, on a wide diversity of currently under-represented public constituencies becoming effectively involved in deliberative policy-making processes across this range of sites, as well as in monitoring, evaluating and revising subsequent policy outcomes. It is at this juncture that questions of distribution become inseparably entangled with what has come to be known as the politics of recognition (cf. Tully, 2000).

Recognition

The politics of recognition demands that policing policy is determined by processes of public will-formation that elicit and equal take account of the views of all individuals and groups likely to be non-trivially affected by relevant decisions. As such, it is concerned to maximize the amount of social knowledge and experience that ‘goes into’ the production of policing policies - and by these means to enhance the ‘quality’ of governmental decision-making. But it is also oriented towards developing - in the realm of policing - institutional mechanisms that can foster the individual and collective autonomy of citizens (Held, 1995: ch. 7). In this respect, the formation of new deliberative mechanisms capable of rendering cross-border policing more democratically responsive exhibits a close connection with the project of strengthening an European civic identity and public sphere. This connection, as we have seen, currently assumes a mutually corrosive form, the relative absence of one of its elements serving to confirm the impossibility of the other in ways that are both circular and conducive to political fatalism. It remains possible, however, to conceive of conditions under which the dynamics of that relation might begin to operate in more virtuous, mutually reinforcing ways (cf. Habermas, 2001).

The EU nonetheless presents some acute difficulties for a deliberative politics of policing and security. It remains the case that the ‘models’ we have to hand of plausible ‘experiments’ in the development of more participative policing forms are generally associated the decentralizationof decision-making and service-delivery - think, for instance, of Clifford Shearing’s current work in, among other places, South Africa (Brogden and Shearing, 1993; Shearing and Wood, 2000), or of recent proposals for the democratic reform of policing in Northern Ireland (Independent Commission on Policing for Northern Ireland, 1999). The structures of police cooperation and wider governance arrangements in the EU are, as we have seen, markedly different, such that one is confronted with sites of police authority and decision-making that stretch across not merely local but national boundaries. The centripetal character of European police cooperation is plainly something that deliberative politics has to come to terms with. [7]

Yet it remains possible - especially given the Commission’s stated aim of enhancing the place of citizen participation within structures of European governance - to conceive of ways in which deliberative democracy might obtain some greater purchase within EU policy- and polity-making (cf. Erikson and Fossum, 2000b). In this spirit, it is equally possible to envisage ‘democratic experiments’ (Unger 1998) that enable inclusive dialogue to secure a firmer hold in shaping the contours of cross-border police cooperation. In general terms, this points in the direction of creating new ‘deliberative spaces’ that enable a diverse range of public audiences to contest the institutional forms and practical strategies that today compose European policing. More concretely, it might encompass the following: opening up the EU’s ‘comitology’ process to a wide range of non-governmental organizations (including those representing non-EU citizens such as asylum-seekers, or recipients of police interventions beyond the EU’s borders); creating space for bodies from within civil society to participate routinely in Justice and Home Affairs Councils; instituting ‘notice and comment’ procedures in respect of currently opaque, self-corroborating decision-making within Third Pillar committees and police networks; and affording the European Parliament, as well perhaps as representatives from national and regional assemblies, a more strategic role in determining the future contours of cross-border police cooperation and scrutinizing its constitutive institutions and processes.

CONCLUSION

I have in this paper sought to indicate in fairly broad terms how the idea of public justice might remedy some of the democratic deficits associated with European policing. It has not been my purpose - I possess neither the space, nor the necessary expertise - to engage in a detailed exercise in institution-building or re-design. Instead, I have set out some of the specific problems of transparency, responsiveness and coordination engendered by the advent of a multi-level plurality of policing institutions and networks within the EU and sketched the outlines of a regulatory politics that is attuned to the specific properties of the European policing field. Such a politics, I have argued, should be geared towards giving effect to the idea of ‘complex accountability’ (Walker, 2000: 292); something I have interpreted as requiring a range of mechanisms and sites of governance, operating at different levels, each differently oriented to questions of rights protection, equitable resource distribution, and maximizing citizen involvement. By such means might it become possible to generate a European policing capacity that is simultaneously effective and legitimate.

It only remains to be said that the prospects of the field moving in such a direction remain, for reasons I have touched upon, somewhat remote. It is ‘security’ rather than democracy and citizenship that today preoccupies governing classes across the EU. There is among Europe’s citizens, at the same time, relatively little awareness of, let alone active concern about, emergent modes of cross-border policing. In the light of this, and in the absence of effective channels of democratic supervision, Europe’s political and police elites have little trouble in either ‘going-on’ in this field without much regard to ‘public opinion’, or else mobilizing public anxieties about ‘alien’ or ‘criminal’ Others as a means of buttressing popular support, securing resources, or both.

Yet there are also signs that alternative, more democratic futures for the EU polity and European policing remain open to us. The European Union and its democratic shortcomings have, for instance, in the aftermath of both the Maastricht Treaty, and the corruption scandals that brought down the Santer Commission, assumed a greater prominence in the consciousness of Europe’s citizens - something that has contributed in no small measure to the current Commission’s concern with the quality of European governance. This ‘polity-in-constant-motion’ also currently exhibits a constitutional plasticity far greater than that of its composite member states; something that makes the question of institution-building both unusually prominent and more than usually up-for-grabs. And since 1992, the EU has begun to articulate a discourse of postnational citizenship around which a genuinely European civil society and public sphere is, perhaps, slowly starting to form. [8] When one adds to this the disquiet recently expressed by certain European leaders, EU officials and strategically-placed police practitioners (see Bruggeman, 2001) about the opaque, thinly-accountable character of cross-border policing institutions, one can find at least some grounds for believing that the future governance of European policing might yet take a democratic turn.

Acknowledgements

Earlier versions of this paper were presented at a seminar on ‘Policing and Public Accountability in Europe: Designing European Police Networks’ at the European Institute of Public Administration, Maastricht, Holland, and at the London Centre of International Relations, University of Kent. I would like to thank all those who participated in the discussions that ensued for their comments and James Sheptycki for his detailed written response to the earlier text. The usual disclaimer applies.

published in Policing and Society, 2002, 12/4:291-306

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