Select Committee on European Union Forty-Ninth Report


Letter from the Chairman to Bob Ainsworth MP, Parliamentary Under-Secretary of State, Home Office

  Sub-Committee E (Law and Institutions) considered the proposal at its meeting on 3 July. The Committee would welcome your comments on the following:


  The meaning of a number of terms used in the proposal is unclear, and the Committee is concerned that this may cause uncertainty regarding the delimitation of the scope of the offences and the level of penalties imposed. This is particularly the case regarding the meaning of "serious hindering" of the functioning of an information system, which is criminalised under Article 4(a). The Commission notes that its meaning is not defined, "as hindering could take different forms and its level could vary depending upon the type of the attack and the technical capacities of the information system being attacked". This could lead to considerable differences in the implementation and interpretation of this provision by Member States. The same criticism can be made with regard to terms such as "damage", "economic benefit", "substantial direct or indirect economic loss", "substantial proceeds", and "critical infrastructure of the Member State". We would be grateful if you could clarify what is meant by these terms.


  The penalty threshold of one year of imprisonment for "serious cases" of offences established by the proposal enables the issuing of a European Arrest Warrant. However, it is unclear what constitutes a "serious case" in this context, with Article 6 determining only what is not meant by this term. The current drafting could result in significant differences in the implementation of the provision between Member States, potentially leading to the execution of warrants for offences that are considered minor by the executing State. The inclusion of specific criteria of "seriousness" in Article 6 could help remedy this situation.


  Article 12 establishes national contact points for the exchange of information concerning the Decision offences. No reference is made however to the nature and powers of these bodies and the types of information that can be exchanged. The Article contains a general reference to the establishment of contact points "in accordance with data protection rules", but it is unclear whether this refers to national, EU and/or international standards. Specific data protection safeguards should be included, perhaps in a separate measure devoted exclusively to data exchange. You mentioned in your Explanatory Memorandum that a contact point has already been established in the UK. We would be grateful if you could provide us with any information on the work of this body and the standards under which it operates.

  The Committee decided to retain the document under scrutiny.

4 July 2002

Letter from Bob Ainsworth MP, Parliamentary Under-Secretary of State, Home Office to the Chairman

  Thank you for your letter of 4 July 2002 setting out the comments of Sub-Committee E regarding this document, which I seek to address below:


  The UK Government, as do the Governments of a number of other Member States, shares your concern about the importance of clarity and consistency of definition of the terms used to ensure that Member States' domestic legislation is harmonised effectively. We will be seeking to ensure this is done in the negotiation of the Framework Decision.

  I understand that the terms used were drawn from the Council of Europe Cybercrime Convention and other EC Directives where possible.

  The term "Serious Hindering" is used in the Cybercrime Convention to refer to "action that interferes with the proper functioning of the computer system", but leaves it to Parties "to determine the extent to which the functioning should be hindered—partially or totally, temporarily or permanently".

  The term "critical infrastructure" is not defined. We use it to refer to those parts of the UK's infrastructure for which continuity is so important to national life that loss, significant interruption, or degradation of service would have life threatening, serious economic or other grave social consequences for the community, or any substantial portion of the community, or would otherwise be of immediate concern to the Government. This will need to be addressed in negotiation.

  The other terms are commonly used in European Directives. More advanced drafts of the Framework Decision will be submitted to the Scrutiny Committees when they become available.


  The Sub-Committee rightly highlight the fact that there is no agreed definition of what constitutes a "serious case". We will be seeking to simplify the proposed penalties in negotiation, not least to provide a framework within which we can ensure consistency. An agreed definition of "seriousness" in Article 6 is one way this would be achieved.


  A 24x7 contact network was put in place between G8 countries in 1997 to facilitate communication between domestic High Tech Crime Units and ensure the preservation of digital data, subject to the domestic laws and authority powers of the requested state, pending a formal request for the provision of evidence. The Cybercrime Convention also adopted the network and currently there are 29 countries in this network. The Framework Decision simply puts that network on a formal basis for Member States. No specific standards have been drawn up for the contact network, as it is intended to operate within existing domestic and international standards and no need for specific additional standards has yet been identified. The UK contact is through the 24-hour Interpol desk in the National Criminal Intelligence Service who refer calls to the National High Tech Crime Unit of the National Crime Squad.

  In summary, I share a number of the Sub-Committee's concerns in relation to this draft and will be seeking to resolve these when negotiation begins.

15 October 2002

Letter from the Chairman, Chairman of the Committee to Bob Ainsworth MP, Parliamentary Under Secretary of State, Home Office

  Thank you for your letter of 15 October on the above proposal. Sub-Committee E (Law and Institutions) examined it at its meeting on 28 October. We were pleased to see that you share our concerns regarding terminology and the application of the European Arrest Warrant and welcome your commitment towards ensuring clarity and consistency. It appears from your letter that the proposal is still at an early stage of negotiation and that revised drafts will be deposited for scrutiny in the future. In the meantime, the Committee will continue to retain document 8685/02 under scrutiny.

29 October 2002

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003