Police Cooperation and Sovereignty in the EU

Norway's Lessons for Europe

Synnøve Ugelvik

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429994661
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

The State and the police are traditionally seen as closely connected phenomena. Today, however, rapid EU legal developments mean that European police forces are no longer tied to a specific national legal context or a specific territory in the way they used to be.

Norway is not a member of the EU. Or is it? This book shows that although it lacks formal membership status, Norway has become part of almost all of the major EU police cooperation measures and agreements. Not only does this mean that foreign police forces may operate on Norwegian territory and vice versa, but in addition, a wide range of EU regulations and cooperation instruments are incorporated directly into Norwegian law. With the increased focus on international and transnational police cooperation in mind, what does it mean to be a sovereign state in Europe today?

This book combines strong legal and theoretical analyses of a specific national system to show how this country is tied to and dependent on a wider international and supranational system of legal rules, technologies and concepts. This makes the book relevant not only for the Norwegian prosecution and police authorities, but also for readers outside Norway interested in exploring how and whether the police as a modern state function has changed through the implementation of international cross-border cooperation mechanisms.

1
INTRODUCTION

Section 1. Responsibility and purpose

The State shall provide the police service needed by the community. Police duties shall be performed by the police and lensman services.

The police shall, through preventive, enforcing and support activities contribute to society’s overall effort to promote and consolidate the citizens’ security under the law, and their safety and welfare in general.

The Norwegian Police Act, section 1¹

A modern police force has a wide variety of tasks and obligations. The police are controllers and helpers. They are service providers and enforcers of legitimate violence. They are the factotums of modern societies. The police maintain social order, safety and (a perception of) security. A police force is charged with having an overview of what needs to be done, and where and when it should be done, in the community that has been made its responsibility. A core characteristic of the police is the link to the particular communities they work in.² The link may be relevant for several reasons. One is the necessity for intimate knowledge of the particular community’s features to understand where the factotum’s efforts are needed. Another is the fact that the police’s attitudes and practices should be shaped by cultural values shared with the population they control and serve. A third reason concerns the legitimacy of the police role: the police force is responsible for citizens’ needs and is accountable to the law.³

The theme of this book is Norway’s situation as an insider and outsider of the EU. The police have traditionally had a monopoly on enforcing state violence. The state is composed of its citizens, so at least to some extent, they should decide what the police do. The international agreement, Schengen, was the start of a ground-breaking change of the possibilities for the Norwegian police and policing of Norway. What I argue in this book as being one of four challenges to Norwegian sovereignty, concerns the importance of the citizens understanding the state’s action on their behalf.

Policing is generally acknowledged to be a central function of sovereign nation-states.⁴ A state is often seen as fundamentally dependent on both its police force and its citizens to be a ‘state’; one might say that, according to this view, a state without a police force is not a proper state. The last 20 years or so have, however, seen crime and mobility trends that have contributed to changes across nation-state borders, whereby national police forces are faced with new sorts of crimes and disorder and a greater number of non-citizens in their territories.

A range of cross-border police cooperation instruments has been established to target these new problems. The Norwegian Police Act sect. 1, quoted above, remains the same as it was before the changes following the implementation of Norwegian affiliation agreements to cross-border police cooperation. The legal and social context has, however, changed in many ways.

The state administration is directed by the government. It has at its disposal a large public organisation to administer laws and regulations as set out by the government itself, and scrutinised by the courts and parliament. The nation-state has these features, but is also defined by why a government controls this particular area, and why citizens accept this control. Schengen membership and other affiliations, I argue here, bring into question whether the state still has an ultimate responsibility for policing, crime control, and the general provision of security and welfare to its citizens. The main concepts in this book are closely related to each other. There is no community without individual citizens. Without citizens, there is no state. The borders within and surrounding Europe have changed with the broad cooperation entities such as the EU. The citizens referred to in the Police Act are not necessarily exclusively Norwegian citizens any longer. The kind of police service that is currently considered to be ‘needed’ may be something else than the desired police service of previous eras. Norway is the case examined in this study, but the findings are of general interest in today’s Europe. The Brexit referendum and a seemingly general anxiety in Europe about national extremism, less EU loyalty, etc., make the case of Norway, an outsider state, pertinent at several levels.

A significant defining characteristic of the modern nation-state is sovereignty. My use of the concept will be explained in full in Chapter 1.3. For now, it is sufficient to remind readers that sovereignty refers both to the fact that a sovereign state has its territorial boundaries respected by other states (external sovereignty) and to its responsibility for protecting its subjects on that territory (internal sovereignty).⁵ Further, a democratic state has its sovereignty constituted by the citizens of that state, which is often termed popular sovereignty. One point of departure is the Weberian notion that the police is the state’s ‘tool’ of coercion within its territory and the only legitimate enforcer of violence against persons.⁶ This legitimate force is made operational by and through the police. For Weber, this is a defining feature of the state. According to Manning, the police is “the institution formally charged by states to lawfully execute the monopoly over means of coercion”.⁷ In one view, the police constitute the state in a modern sense, because a state that cannot get anything done is not a state. The histories of the state and of the police are to a certain extent intertwined. The historical account of the police given in this book is therefore also the story of a changing state. There are significant variations both in the way societies have institutionalised the police function across socio-historic circumstances and the extent to which these police institutions have been monopolised and perceived to be legitimate.⁸ It is, however, generally assumed in democratic states that the police act on behalf of a particular state (government) within state territory, while military forces exert state power outside or on the borders of the territory. While these two entities may both use coercion or violence on behalf of the state,⁹ the significant difference between them is that the armed forces are normally responsible for protecting the external borders and maintaining the security of a state, while the police are responsible for internal security and general order.¹⁰ When a state’s police exercise powers outside a certain territory, as in the case of international police cooperation in the general Schengen Area, the notion of state is challenged, so also the other central concepts in the Police Act sect. 1. The police’s functions encompass more than the enforcement of state coercion. This aspect is highlighted, however, because the police can always resort to violence, legitimately, on behalf of the state. This aspect is also what is challenged when the police moves across the borders of its ‘legitimating’ state.

This book argues that the notion of the state’s monopoly on legitimate violence on its territory is now, if not obsolete, then at least challenged. This might not be a new development: the increased use of private security guards and the building of private prisons in many jurisdictions may be seen to question the very notion of a state monopoly on violence.¹¹ Perhaps such a monopoly never actually existed in practice. In the Norwegian context, however, this monopoly is arguably the very foundation of the Police Act sect. 1, and in this book, the section is taken seriously.

There is not a great deal of research on the Norwegian police, and their role in crossborder European Union (EU) police cooperation. One reason for this may be the fact that Norway is not part of the EU. But as this book shows, Norway is definitely part of EU police cooperation. This book seeks to give a comprehensive account of the regulation of Norwegian participation in that cooperation. It does not, however, deal only with the legal state of affairs. Another aim is to analyse how the police force has developed, and to understand how the traditional relationship between the police, the state and citizens may be seen to be changing in modern European societies. This makes the book of relevance to readers outside Norway, who may be interested in an exploration of how the police as a function of the modern state has been affected by international cross-border cooperation mechanisms - those of the Schengen area and EU in particular.

There are three central findings. One is the challenge to the Norwegian sovereignty. The instruments of police cooperation imply, at least in a formal sense, that Norway has transferred some of its jurisdictional sovereignty to other countries. While it is frequently claimed that policing remains ultimately within Norwegian state competences, it can be argued that several aspects of police cooperation, at both the practitioners’ and the political level, call this claim into question. The book also argues that aspects of international police cooperation may have effects other than the apparent, desirable goals. The other two findings concern the fact that, while the cooperation instruments of the EU, the European Economic Agreement (EEA) and the Schengen Agreement all have as a main purpose the increased circulation of people and ‘freedoms’, they also imply a shift in the state’s focus on its internal security situation. This in turn implies, 1) an increased emphasis on policing crimes with some kind of international aspect, including those simply involving police cooperation instruments, and 2) that police cooperation largely results in limitation of the circulation of many groups of individuals.

1.1 CONTEXT AND THE ISSUES AT STAKE

In the 21st century, societies are interconnected with and influenced by each other in ways unimaginable a hundred years ago, when each state (or community within a state) was responsible for policing its territory, or for stopping (or deporting) criminals (or potential criminals) at the border. While various forms of informal communication between police officers happened centuries ago, especially in border regions, formalised international cooperation across borders did not start to take substantial form before the late 19th century. Issues such as the white slave trade and counterfeiting were, however, mutual concerns of several governments even then. International cooperation gained momentum after the Second World War. The early regional European Community treaties of the 1950s were primarily intended to unite the European states in trade relations, and prevent acts of hostility. These early initiatives did not include measures on the police or crime control; policing remained a national preserve.¹² Terrorist attacks in the 1970s and’80s, however, encouraged initiatives on police and crime control cooperation. Internationalisation and globalisation increased throughout these decades, along with rapid technological development and the expectation that the law should be up-to-date and able to regulate these areas, as it did the more traditional normative areas of society.¹³

The EU is central to this book, both as an agreement, or collection of agreements, as an organisation and as a political entity. The EU is the single most significant actor for Norway in terms of international and transnational police cooperation. It is also central because of its status, and development as a - to some extent - supranational entity. The economic cooperation leading to the EC in the 1950s has developed radically, especially during the past three decades. There have been great ...