Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

Current developments in police governance and accountability in Ireland

2005 saw the passing of landmark legislation for policing in Ireland??the Garda Síochána Act??which made substantial changes to the structures and operation of governance and accountability. It came on the heels of the greatest scandal ever faced by the Irish police. This paper sets out to assess critically the impact of that legislation. We begin by considering the nature of police reform and the various conditions necessary for successful change. We then contextualise the reforms in Ireland, considering the existing structures of governance and accountability and highlighting the numerous concerns which existed in relation to them. The focus then turns to the Morris Tribunal, which documented gross misconduct and corruption in one Garda division. We examine how this served as a major catalyst for reform in Ireland. The paper then turns to consider the reforms themselves providing an overview of the legislation and critiquing in depth a number of features: the clear centralisation of government control over the police, the limited independence of the new independent police complaints body and the failure to fully embed the reforms in a human rights agenda. We conclude by arguing that insufficient steps have been taken to address police governance and accountability in Ireland and that the best opportunity for such reform may have been missed.     

Free Movement of Persons and European Solidarity1

Abstract: This article explores the tension between freedom of movement within the EC/EU and the principle of social solidarity, a tension which has increased in step with the progressive enlargement over the years of the circle of potential beneficiaries of the right to cross‐border access to the social and welfare benefits guaranteed by the social protection systems of the Member States. The article aims to re‐construct the system of Community rules regarding the free movement of persons within the EU from the point of view of the justifying criteria for the cross‐border access to national welfare systems of the different categories of ‘migrants’. The focus of the article is on the different degrees and models of solidarity which, at least at the present stage of the European integration process, justify correspondingly graduated and differentiated forms of cross‐border access to Member States' social and welfare benefits for the various categories of persons who move about within the EU.     

Accountability for Delegated and Implementing Acts after the Treaty of Lisbon

The comitology regime, the committee‐based system developed as a mechanism for controlling the Commission's exercise of its powers to implement EU measures, has been subject to severe criticism on grounds of lack of accountability and transparency. The system has recently been fundamentally reformed by means of the new Implementing Acts Regulation, which came into force on 1 March 2011. This paper investigates whether the new rules are sufficient to remedy accountability deficits as regards implementing acts and concludes that as far as accountability to the Member States is concerned, their control powers have remained static. In addition, the new‐delegated acts procedure introduced by the Treaty of Lisbon grants the European Parliament (EP) more control powers, although the EP's gains are more modest than they might appear. This change has come at the cost of reduced control powers for Member States as well as lowered standards of transparency for the public.     

EU GDPR or APEC CBPR? A comparative analysis of the approach of the EU and APEC to cross border data transfers and protection of personal data in the IoT era

This article examines the two major international data transfer schemes in existence today – the European Union (EU) model which at present is effectively the General Data Protection Regulation (GDPR), and the Asia-Pacific Economic Cooperation (APEC) Cross Border Privacy Rules system (CBPR), in the context of the Internet of Things (IoT).While IoT data ostensibly relates to things i.e. products and services, it impacts individuals and their data protection and privacy rights, and raises compliance issues for corporations especially in relation to international data flows. The GDPR regulates the processing of personal data of individuals who are EU data subjects including cross border data transfers. As an EU Regulation, the GDPR applies directly as law to EU member nations. The GDPR also has extensive extraterritorial provisions that apply to processing of personal data outside the EU regardless of place of incorporation and geographical area of operation of the data controller/ processor. There are a number of ways that the GDPR enables lawful international transfer of personal data including schemes that are broadly similar to APEC CBPR.APEC CBPR is the other major regional framework regulating transfer of personal data between APEC member nations. It is essentially a voluntary accountability scheme that initially requires acceptance at country level, followed by independent certification by an accountability agent of the organization wishing to join the scheme. APEC CBPR is viewed by many in the United States of America (US) as preferable to the EU approach because CBPR is considered more conducive to business than its counterpart schemes under the GDPR, and therefore is regarded as the scheme most likely to prevail.While there are broad areas of similarity between the EU and APEC approaches to data protection in the context of cross border data transfer, there are also substantial differences. This paper considers the similarities and major differences, and the overall suitability of the two models for the era of the Internet of Things (IoT) in which large amounts of personal data are processed on an on-going basis from connected devices around the world. This is the first time the APEC and GDPR cross-border data schemes have been compared in this way. The paper concludes with the author expressing a view as to which scheme is likely to set the global standard.     

Strategies of police cooperation: comparing the Southern Chinese seaboard with the European Union

A number of police cooperation strategies have developed around the Southern Chinese seaboard, which encompasses the coastal provinces of Mainland China, Taiwan, and the Special Administrative Regions of Hong Kong and Macau. Cooperation mechanisms in the region encompass intelligence sharing strategies and establishment of the Electronic Communal Information Sharing Platform (ECISP), common investigations, regular meetings, practitioner exchanges, and training. Although conducted on a regular basis, these cooperation strategies mostly lack a formally binding legal basis, relying purely on informal practitioner efforts at best supported by Memoranda of Understanding. Due to their historical independence all police forces involved in cooperation at the Southern Chinese seaboard have had to establish strategies to overcome legal, organisational and cultural differences. This region could therefore be compared to cooperation networks between sovereign nation-states in other regions. The historical development of Greater China’s highly informal, practitioner driven approach to cooperation is reminiscent of early forms of cooperation between the police agencies of states that are now members of the European Union (EU). This paper explores the development of both informal and formal strategies established among police agencies around the Southern Chinese seaboard and compares them with the EU to enhance the historical, political and legal understanding of the two regions.     

中国的跨界破产法:现状、问题及发展

在研究中国破产法的现状（集中在有关跨界破产的立法空白及不成熟的司法实践）和引起广泛关注的广东国际信托投资公司破产案的基础上，作者根据国际上的最新发展，特别是联合国国际贸易法委员会跨界破产示范法和欧盟破产程序规则中的一些重要原则，对中国的跨界破产立法提出了若干建议：在普遍性原则与地域性原则的基础问题上，应当采取较为开放的态度，并应设计具体的制度去支持；在管辖权方面，既要维护中国债权人的利益，同时也需要适当的管辖权自限；最后，应注意加强跨界破产案件中的国际合作，对外国破产程序给予适当的承认与协助。     

Governance, accountability and neighbourhood policing in Northern Ireland: analysing the role of public meetings

In Northern Ireland??s move from conflict to peace, policing has remained close to the top of the political agenda. As part of the peace process, the Independent Commission on Policing (ICP) reported in 1999, and since its publication policing structures in Northern Ireland have undergone considerable reform. One of the threads of the ICP was to introduce a more nodal or networked approach to the delivery of policing that included the establishment of partnership policing structures. Against this backdrop, this article evaluates the use of the recently established Partners and Communities Together (PACT) public meetings in their role as a tool in re-shaping the parameters police accountability in Northern Ireland. The model is explicitly promoted as fostering a more nodal approach to local police decision making by engaging with a more diverse range of groups and harnessing the knowledge of local agencies to solve crime and disorder problems. Therefore, enhancing the accountability and legitimacy of the PSNI at the local level. In these contexts, the article utilises data taken from fieldwork undertaken at these public meetings and critically considers their role as forums where communities bring low level disorder issues that are affecting their neighbourhood to the attention of the PSNI, and whether they help solve these issues in partnership. The article therefore offers an examination of the role of public meetings and the PACT model itself.     

Shoot to kill – understanding police use of force in combatting suicide terrorism

More than a year after the killing of an innocent man, Jean Charles de Menezes, wrongly suspected by the Metropolitan Police of being a suicide bomber, the authors consider police accountability in combating terrorism. The authors argue that traditional policing styles in the UK are based on notions of reasonableness, compromise and respect for the individuals’ rights. A central tenet of our consent to be policed is the considered and rare use by police of coercive force, which is premised on a continuum ranging from negotiation at one extreme to lethal consequences at the other. Combating suicide terrorism in the UK using developed policies like Operation Kratos means that police are restricted to shooting to kill. Although there is undoubtedly a consensus that combating terrorism requires a robust and overt response, the authors ask whether it is ever possible to achieve a balance between liberty, security, and police accountability when dealing with difficult terrorist incidents. Police accountability is assessed in the context of operational policy-making and how that impacts on specialist police forces engaged in anti-terrorist operations. The authors conclude that since the introduction of Operation Kratos the nature of policing, and also its structure, is changing from being covert, understated and reasonable, to a zero tolerance, military, overt and oppressive style. In other words, traditional reactive policing styles have given way to a proactive military approach. Military styles of policing with overt displays of force tend to overlook civil rights and make more mistakes. We must be able to trust our police, because a trustworthy police is one which acknowledges our civil rights.

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There Must Be Some Way Out of Here: The Crisis,Labour Rights and Member States in the Eye of the Storm

This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of ‘bail‐out’ deals, negotiated and monitored by what has become known as the ‘Troika’ of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail‐outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of ‘competition’; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the ‘social deficit’ problem of the EU construction.     

Powers and Accountability of Private Police

Substantial growth in private policing has been documented in countries throughout the world, and the division of responsibilities for policing between public and private authorities has become increasingly blurred and contested during the last three decades. Because private policing is so frequently assessed on the basis of criteria established with respect to the public police, substantial myths have developed about the powers and accountability of private police; specifically, it is commonly asserted that private police have no significant power(s), and are essentially not accountable, in comparison with the public police. The author argues that such assertions misrepresent the very substantial coercive power of private police as well as the variety of mechanisms through which they may be held accountable, and also commonly exaggerate the effective accountability of the public police. The author concludes that a greater appreciation of the actual power and accountability of private police will provide an improved basis for the development of sound public policy with respect to both private and public policing, and with respect to appropriate relationships between private and public policing organisations.     

Towards ‘Accountable Independence’? Parliamentary Controls of the European Central Bank and the Rise of a New Democratic Model

The independence of the European Central Bank is legally defined in very clear and strict terms. Although most scholars in economics describe this status as a crucial condition of the Bank's efficiency, it is frequently criticised by politicians and political scientists as a contradiction to democratic theory. This paper will examine the emerging practice of parliamentary control of the ECB, from its installation until September 1999, in order to understand which kind of ‘accountability’ is elaborated in this unprecedented relationship between ‘politicians’ and lsquo;technocrats’. It will first show that MEPs have rejected all forms of parliamentary control based on a logic of constraint. It will then describe the numerous institutional links created between the Bank and the EU political organs to favour their cooperation. Finally it will analyse the recent initiatives taken by MEPs to influence central bankers and to convince them to submit their decisions to public debates. The hypothesis developed from these empirical analyses is that a new kind of ‘accountability’ is emerging in the EU. From a horizontal point of view (inter‐institutional controls), it is based on influence rather than traditional parliamentary constraint. From a vertical point of view (accountability to citizens), it focuses on responsiveness rather than on classic responsibility.     

Adapting the Police Authority Concept to a Centralised National Police Service: Appearance over Substance in the Republic of Ireland?

The Republic of Ireland has been convulsed by a series of police corruption scandals over the past fifteen years and they show no sign of abating. In 2015, in an attempt to stem the consequent drain in public confidence in the Garda, the government established a Policing Authority which it presented as ‘the most important single change in the governance of the Garda Síochána in its history’. This article critically examines whether the new Irish Policing Authority can be interpreted as a successful adaptation of the traditional police authority concept to a parliamentary democracy policed by a single, national body. In particular, it considers whether it is equipped to shield the Garda and policing from the influence of partisan political and institutional interests, while at the same time deliver transparent democratic scrutiny of the Garda and policing on behalf of all sections of the community.     

Protecting digital identity in the cloud: Regulating cross border data disclosure

Widespread use of cloud computing and other off-shore hosting and processing arrangements make regulation of cross border data one of the most significant issues for regulators around the world. Cloud computing has made data storage and access cost effective but it has changed the nature of cross border data. Now data does not have to be stored or processed in another country or transferred across a national border in the traditional sense, to be what we consider to be cross border data. Nevertheless, the notion of physical borders and transfers still pervades thinking on this subject. The European Commission (“EC”) is proposing a new global standard for data transfer to ensure a level of protection for data transferred out of the EU similar to that within the EU. This paper examines the two major international schemes regulating cross-border data, the EU approach and the US approach, and the new EC and US proposals for a global standard. These approaches which are all based on data transfer are contrasted with the new Australian approach which regulates disclosure. The relative merits of the EU, US and Australian approaches are examined in the context of digital identity, rather than just data privacy which is the usual focus, because of the growing significance of digital identity, especially to an individual's ability to be recognized and to transact. The set of information required for transactions which invariably consists of full name, date of birth, gender and a piece of what is referred to as identifying information, has specific functions which transform it from mere information. As is explained in this article, as a set, it literally enables the system to transact. For this reason, it is the most important, and most vulnerable, part of digital identity. Yet while it is deserving of most protection, its significance has been largely under-appreciated. This article considers the issues posed by cross border data regulation in the context of cloud computing, with a focus on transaction identity and the other personal information which make up an individual's digital identity. The author argues that the growing commercial and legal importance of digital identity and its inherent vulnerabilities mandate the need for its more effective protection which is provided by regulation of disclosure, not just transfer.     

PUBLIC COOPERATION WITH THE POLICE IN GHANA: DOES PROCEDURAL FAIRNESS MATTER?*

Recent criminological emphasis on the salience of normative concerns, such as procedural fairness and legitimacy, in understanding public law‐abiding behavior has been based on evidence from Anglo‐American studies. This article examines these issues in the African context based on general survey data from Accra, Ghana. The results show a lack of empirical validity, in the Ghanaian context, of the Sunshine–Tyler legitimacy scale. The results also show that public cooperation with the police in Ghana is shaped by utilitarian factors such as perceptions of current police effectiveness infighting crime. It is argued that the importance of perceived police effectiveness to public cooperation is a result of police legitimation deficits and the public's alienation from the Ghana police, which in turn are traced to the colonial history of the police and current poor police performance.     

Keeping national parliaments informed: The problem of European legislation

Since Maastricht there has been a growing realisation in the institutions of the European Union, that the unfettered flow of information is vital to the health of the whole European project. Some moves have been made towards more transparent decision‐making, but progress has been slow and is limited by a culture which values confidentiality, particularly in intergovernmental negotiations. The free flow of information is especially important to national parliaments if they are to exercise any influence in the EU. The House of Commons Select Committee on European Legislation has recently pronounced the scrutiny system to be ‘in deep crisis’ because of chaotic decision‐making and a disregard for the rights of national parliaments. Many Westminster MPs feel frustrated by the difficulty of keeping track of EU legislation. The paper suggests that the ingredients of an improved information system already exist. A wealth of current information can be derived from EU‐related electronic databases and through direct links between the European Parliament and national parliaments. It proposes that a new current awareness service for the House of Commons, distributed via the parliamentary network and as hard copy, could focus information for MPs in a much more accessible way.     

Accountability and Police Violence: a Research on Accounts to Cope with Excessive Use of Force in Italy

Accountability is a vital element of policing. Over time, the public has demanded more control over police activities, while policing has attracted a good deal of controversy, such as the discriminatory and violent manner in which police officers treat individuals. In this paper, we explore Italian police accountability when faced with violent actions following the articulation at two levels: a micro-level—the communication strategies adopted by the police unions to account for their actions—and a macro-level—the understanding of the political and social system in which the police act, namely the Italian system. The results of the thematic analysis highlighted the recourse to excuses, justifications, and apologies. In terms of the effects on the audience, the unions divide into two groups: the first made exclusive use of defensive accountability strategies (excuses and justifications) and the second used reconciling accountability strategies (apologies). We discuss these findings regarding the interaction between the police and the public in Italy.     

Police cooperation in the Southern African region: politics and practicalities

This paper describes some of the issues around which cooperation among police agencies in the South African region have been coalescing. Cooperative engagements have resulted in a degree of harmonisation of policy and standardisation of police training. Within the region too a rhetorical commitment to common values and standards associated with democratic policing is forthcoming. Overall the processes underway are shaped by regional dynamics of a broader socio-political and specific police organisational nature. Structural underdevelopment, the weakness of institutions such as the police and contrarian politics more widely provide the context within which cooperation has evolved. By drawing on documentary analysis and interviews with practitioners in the field, the substantive areas around which cooperation is taking place are outlined. In this account particular reference is made to the role of a regional structure (the Southern African Regional Police Chiefs Coordination Committee) and the national police agency (the South African Police Service) of South Africa, in the evolving business of cooperation in the Southern African region. Research for this paper was made possible through funding received from the Open Society Foundation (SA).

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German Police: Marching Ahead on the Road to Elitism

In the recent years the police in Germany have been given higher status by eliminating lower ranks and making it possible for new recruits to start with a “commissioned officer'’ rank which means at the level of a lieutenant. This has been done in order to give them more salary and give recognition to the complexity of street‐level police work. The paper examines whether this change is bringing about positive results, particularly in narrowing the gap between the police and the public which has been a historically significant challenge for the police in Germany.     

Reconstituting social order and social control: Police accountability in Canada

Despite the important role which the police play in the reproduction of social order, there is a lacuna in critical criminological literature on the policing of democratic societies. As a consequence, the mistaken impression is fostered that policing in Canada is not problematic. This paper challenges this view, documenting the extent of police malpractice and raising the question of the need for police accountability. Within this context the authors discuss three forms which police accountability has historically taken: judicial inquiry, community police monitoring groups, and consultative liaison panels. One problem which the authors note is the way in which all three models depend upon the police for information about the nature of crime and policing, making them susceptible to dominant discourses about policing. Thus they continue by discussing the left realist model as potentially a fourth model. This form of police accountability emerged in Britain during the 1980s and is characterized by the production of an alternative discourse on crime and police practices based on locally conducted and controlled victimization surveys. The extent to which this practice of police accountability might be relevant to the Canadian context remains yet to be explored. The authors note in closing, however, that this is an empirical and not a theoretical question, meaning that Canadian criminologists must become more practical and less academic in their discourses of social control. “A riot is at bottom the language of the unheard” (Revd. Martin Luther King, 1967)