Documents considered by the Committee on 9 February 2011 - European Scrutiny Committee Contents

3   Attacks against information systems



COM(10) 517

+ ADDs 1-2

Draft Directive on attacks against information systems, repealing Council Framework Decision 2005/222/JHA

Commission staff working documents: Impact assessment and summary of impact assessment

Legal baseArticle 83(1) TFEU; co-decision; QMV
Document originated30 September 2010
Deposited in Parliament5 October 2010
DepartmentHome Office
Basis of considerationMinister's letter of 31 January 2011
Previous Committee ReportHC 428-vi (2010-11), chapter 6 (3 November 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; opt-in decision recommended for debate in European Committee B

Background and previous scrutiny

3.1  In 2005, the Council adopted a Framework Decision requiring Member States to criminalise unauthorised access to, or interference with, information systems and computer data. The UK is bound by the Framework Decision and the offences and penalties it prescribes are reflected in the Computer Misuse Act 1990.

3.2  Since the adoption of the Framework Decision in 2005, the Commission believes that the incidence of large-scale attacks against information systems has increased significantly and that new and more sophisticated tools have emerged which have the potential to infect significant numbers of information systems and cause considerable damage. It suggests that the Framework Decision does not fully address the potential threat posed to society by large scale attacks, such as occurred in Estonia in 2007 when important parts of the critical information infrastructure of government and the private sector were taken out for several days.

3.3  The Commission has therefore proposed repealing the 2005 Framework Decision while incorporating most of its provisions in a new draft Directive and including some additional elements to strengthen Member States' capacity to prevent and prosecute large-scale attacks against information systems. The purpose and content of the draft Directive, and the Government's views on it, are set out in our Sixth Report of 3 November 2010. The Parliamentary Under-Secretary of State for Crime Prevention (James Brokenshire) told us in his Explanatory Memorandum of 13 October 2010 that significant new legislation would not be needed to implement the draft Directive in the UK as most of the offences described are already included in the Computer Misuse Act 1990. However, some changes were likely to be required in the following areas, although the need for and extent of any change would depend on the outcome of negotiations:

  • making the creation, possession and distribution of tools or devices for the purpose of illegal interception of information systems a criminal offence;
  • increasing the level of criminal penalties; and
  • extending the basis for exercising criminal jurisdiction.

3.4  We considered that the legal base proposed for the draft Directive was appropriate, that large-scale attacks against information systems were likely to have a cross-border dimension and that there was therefore a case for further EU action to respond to new methods and tools for committing cyber crime. However, we expressed concern that the language proposed in the draft Directive for establishing criminal liability was imprecise and inappropriate and also asked the Minister to explain what implications the draft Directive would have for existing UK rules on jurisdiction.

3.5  In his letter of 17 November 2010, the Minister told us that he shared our concern about the imprecise wording of the some of the Articles in the draft Directive and that he would endeavour to secure their amendment or removal in the course of negotiations. He explained that jurisdiction for offences committed under the Computer Misuse Act 1990 requires the offender or the offence to have a link to the UK which is greater than that envisaged in the draft Directive. He added that the Government would not wish to see any reduction in this link and would therefore seek appropriate amendments during negotiations. The Minister also told us that, if the Government decided to opt into the draft Directive, it would have to notify the Justice and Home Affairs Council by 23 December.

The Minister's letter of 31 January 2011

3.6  The Minister informs us that the Government has decided to opt into the draft Directive and says that he will ensure that the concerns raised by the Committee in its earlier Report will be reflected in the UK's negotiating mandate.


3.7  When we considered the draft Directive last November, the Government told us that it was too early to make a decision on whether it should opt into the draft Directive. In reaching its decision, the Government would consider, in particular, the impact of the draft Directive on the security of the UK, civil liberties, the integrity of the UK's common law system and the control of immigration. The Minister indicated that the draft Directive would be unlikely to have a significant impact on the UK's national security or on civil liberties. Nor did he consider that the draft Directive raised concerns relating to the balance of EU and UK competence in this area of criminal activity. Although the criminal penalties proposed for some offences would conflict with sentences prescribed by UK law, the Government would seek to address this in negotiations if it decided to opt in.

3.8  We would have welcomed a clearer indication from the Government in its Explanatory Memorandum of its views as to whether or not it intended to opt in. We also think that the Government should have informed us of its decision sooner, rather than waiting for one month to elapse. We ask the Minister, in future, to inform the Committee in advance if he intends to make an oral statement to the House on the Government's decision to opt into a proposal.

3.9  It is evident that the draft Directive will, unless amended in the course of negotiations, require some change to existing criminal law in the UK. We think, therefore, that the Government's decision to opt in should be debated in European Committee B. We intend to hold the draft Directive under scrutiny and welcome the Minister's assurance that he will keep us informed of progress of negotiations.

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