Dáil Éireann debate -
Wednesday, 11 Oct 2006

Vol. 625 No. 2

International Agreements: Motion.

Minister of State at the Department of Transport (Mr. Gallagher)

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion, provided by Article 1.11 of the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption of the following proposed measure:

Agreement between the European Union and the United States of America on the processing and transfer of passenger name record data by air carriers to the United States Department of Homeland Security,

a copy of which proposed measure was laid before Dáil Éireann on 10 October 2006.

This motion, under Article 29.4.6° of the Constitution, seeks the approval of both Houses of the Oireachtas for Ireland to participate in an agreement between the EU and the United States on the continued use of passenger name record data. As Deputies are all aware, in the five years since 11 September 2001 the United States has been very aware of the possibility of terrorist attacks. The events of 11 September heightened awareness of the vulnerabilities in the area of aviation. As part of their anti-terrorism security measures following these events, US authorities have for some time been requiring airlines on transatlantic routes to supply personal information on passengers in advance of travel. This is commonly referred to as PNR, passenger name record, data.

Identification of potentially high risk passengers through PNR data analysis provides states and aircraft operators with a capacity to improve aviation security, enhance national and border security and prevent and combat terrorist acts, related crimes and other serious crimes that are transnational in nature, including organised crime. It protects the vital interests of passengers and the public. PNR data helps expedite customs and immigration at airports and facilitates and safeguards legitimate passenger traffic.

The European Union has been working with the US authorities to ensure the personal data of European citizens is appropriately protected in the US. This transfer of data has been taking place within the framework of a decision by the European Commission under EU data protection legislation and undertakings given to the Commission by the US authorities limiting the use to which the data would be put to protect the rights of EU citizens while at the same time assisting the international effort against terrorism. Following the terrorist attacks of 11 September 2001 in the United States, the US authorities enacted legislation providing that air carriers operating flights to, from and within United States territory would have to provide them with electronic access to the data contained in their reservation and departure systems.

An agreement was negotiated on behalf of the European Community by the European Commission, with the agreement of the member states, and was signed in Washington DC on 28 May 2004. It entered into effect on the same day. The European Parliament decided to refer this agreement to the European Court of Justice seeking its annulment. In a judgment delivered on 30 May 2006, the Court of Justice annulled the decision of the Council of Ministers. The court decided that there was no appropriate legal basis for the Council decision approving the conclusion of the agreement, or for the Commission decision finding that the information transferred was adequately protected by the United States.

Essentially, it was the view of the court that the main objective involved was concerned with security matters and, accordingly, a first pillar legal base was incorrect. In delivering its decision, the Court of Justice decided that the agreement should remain applicable for a period of 90 days from notification of its termination for reasons of legal certainty and, to protect persons concerned, to preserve the effect of the decision on adequacy until 30 September 2006. The agreement therefore remained in effect and fully operational until 30 September 2006 to give the Commission and the member states time to discuss and agree a solution to the question of the legal basis for the agreement. This, in turn, means that the position of travellers from the European Union to the United States remained unchanged until 30 September 2006.

There was a slight slippage in meeting the 30 September deadline. After lengthy negotiations, however, the EU Presidency has produced the text of the new agreement with the US and a draft Council decision. The new agreement does not differ to any significant degree from the old agreement except that it has a different legal basis. I stress that it offers the same safeguards and protections for EU citizens. However, to maintain transatlantic travel, Aer Lingus, in common with other EU airlines, has continued to supply the data with the full knowledge of the intending passengers. The 34 individual data items are available for citizens to peruse on the Internet. Full details of the PNR undertakings of the US Department of Homeland Security are also available on the Internet.

I can go further and state that there has been very little negative feedback about PNR from airline users. In addition, I have been assured by the Office of the Attorney General that there are no data protection issues involved in continuing to supply the US authorities with this data. In order for Ireland to take part in the agreement, the approval of both Houses of the Oireachtas will be needed under Article 29.4.6° of the Constitution. In the case of some of our European partners a similar parliamentary process will not be necessary. It is hoped the new agreement will come into force on 12 October 2006. It is essential that Ireland joins with our European partners in participating in this agreement.

I commend the motion to the House.

Ms O. Mitchell

Fine Gael will not oppose this motion but I want to make some comments about it. We are all a little surprised that it has come before the House but all of us have been following this issue since 11 September 2001 when the Department of Homeland Security in the United States first announced it required this type of information as part of its battle against terrorism. One can understand the Commission's decision to sign up to this agreement, almost without question, given the obvious need to ensure there was no disruption to trade, tourism or the normal social intercourse between Europe and the new world for either economic or social reasons, particularly at a time when the future of air travel was threatened.

Nevertheless, we owe a debt of gratitude to the Parliament for referring it to the European Court of Justice because it was a considerable commitment made on behalf of us all to transfer this data to the United States and have it maintained for an indefinite period. Agreeing to this measure was no small deed and a debt is due to the Parliament for referring it to court, which has found there was no legal basis for the Commission to sign the agreement because it related to issues of security. Also, the protections within the United States of the data transferred were not adequately secured.

On one level, those of us in Europe regard it as a form of paranoia on the part of the United States authorities that they would require this kind of information but on another level one wondered what use the information being transmitted would be to anybody in determining whether a terrorist attack was being planned. Notwithstanding that, the Department of Homeland Security felt strongly about it.

It has made certain commitments and it is essential that those commitments are met to protect individuals regarding the processing of their personal data if they consider that the processing of the passenger name records data is not in accordance with the standards of protection promised by the Department of Homeland Security or where a competent United States authority has determined they are in breach of those standards until compliance of those standards is assured. We can stop transferring the data in certain circumstances, for example, where there are reasonable grounds for believing the Department of Homeland Security is not taking adequate or timely steps to settle a breach of standards. In nodding this motion through the House, so to speak — apparently only two countries have not already nodded it through their Parliaments — we must be rigorous in ensuring that whatever undertakings are given are obeyed to the letter, that information is used only for the purpose for which it is intended and that it is only passed to those who are included in the agreement.

I have a number of reservations and questions and I hope the Minister of State will clarify them for me. The US authorities currently have access to the 34 pieces of data information they require. In other words, they can seek that information rather than Europe giving it to them automatically. Until it is technically feasible for airlines to automatically arrange for the transfer of information, they have that access. I am concerned, perhaps needlessly but I would like clarification, about whether they have access to other information which is not required or if it is restricted to those 34 items of information.

Another of my concerns is the number of other bodies within the United States to whom this information is transferred automatically. Do the undertakings given by the Department of Homeland Security apply equally to the other competent bodies that have a role in security in the United States? The more bodies that receive this type of information, the more potential there is for abuse of that information. I am anxious to know if the undertakings given by the Department of Homeland Security apply also to those bodies and the checks that are in place regarding the use to which they put that information.

Another concern that I and others have expressed is the length of time the data is held. In the new agreement, there is no deadline in terms of the length of time the data can be held. I understand the reason there is no agreement is because the Department of Homeland Security in the United States is anxious to keep it for a number of years to build a profile of people travelling to and from the United States. If somebody travels to the United States and then leaves, the information should be scrapped. Holding on to this data and effectively building a profile of all passengers coming from Europe is beyond what is necessary. When is it expected that type of agreement will be reached in terms of the length of time the information should be held?

Another concern the Minister might address is the fact that this is a one-way process. I am not suggesting there is not a security threat. There is a security threat worldwide. The threats and acts of terrorism are not just directed against the United States; they occur in other parts of the world. If the authorities in the United States consider that this information is essential to them to protect travellers, airports, planes and other targets within the United States and if the European Community agrees they need this information and consequently signs this agreement to transfer that information to them, is the information about US passengers coming here not equally important to this country? Is there any talk of a reciprocal agreement? Do we consider that a reciprocal agreement would be necessary and that they would transfer similar information to authorities in Europe?

Fine Gael has no intention of obstructing the passing of this motion because, regardless of our concerns about the use to which this data is put, our overriding concern is to ensure there is no disruption to aviation traffic across the Atlantic. If we want aviation traffic to continue without disruption, this is the price we must pay. However, I stress again the importance of ensuring that whatever undertakings have been given, which are clearly laid out and are fairly minimal, although they would not inspire total confidence, as part of the agreement to protect data, are rigorously enforced and that the data flow would stop instantly if there was any breach in the use to which this data is put.

Ms Shortall

The Labour Party will not oppose this motion but I want to make a number of comments about it and the manner with which it is being dealt. At European Union level, it is difficult to understand how negotiations on this issue went to the wire and we now find ourselves in a position where there is a certain degree of urgency in passing this motion.

Why has it been handled so badly in terms of providing necessary information and briefing to Opposition Members? We were handed a briefing note at 5.30 p.m. yesterday but there was no indication of the scale of the debate today. It would have been helpful if this was indicated to us last week even though the EU agreement had not been finalised at that stage. The Department should have briefed us rather than catching us unawares last night. At this short notice, it is difficult for Members to respond and I ask the Minister of State to note this in respect of future motions or legislation. The Department of Transport tends to rush through proposals without adequate notice to the Opposition and without allowing time for detailed consideration of what is proposed.

After 11 September 2001, an agreement was reached between the EU and the US in respect of transatlantic passenger data exchange. Last May, this was found to have an inappropriate legal basis. The EU had to find an agreement that was legally sound and this is the purpose of today's motion. We accept the need to end the legal vacuum that has existed over the past months.

Substantial differences in attitudes to data protection exist between the EU and the US. Many of these differences surfaced in negotiations in recent months, a number of which have not been resolved. There was pressure to implement a new legal agreement before 30 September, or as soon as possible afterwards, and now many of the differences remain unresolved. This matter must be revisited by the EU, which is why this is an interim agreement. At EU level, this must be revisited early next year in order to reach a satisfactory agreement in mid-2007. We should not have last-minute, rushed negotiations resulting in an agreement that is unsatisfactory. The concerns regarding citizens' rights have not been adequately aired or addressed in the agreement.

It is important that the US authorities guarantee adequate data protection safeguards are in place. Issues raised in negotiations must be addressed in a meaningful way and incorporated into a more permanent agreement. This agreement contains certain safeguards, but it is not clear how they will be overseen at US, EU or national level. Safeguards in the agreement seem acceptable and the briefing material suggests they are adequate, but it is not clear who will be responsible for monitoring the safeguards and ensuring the agreement secures those safeguards.

What are the arrangements for monitoring the operation of this agreement? At EU and national level, what aviation and data protection authorities will oversee this agreement to ensure the safeguards are implemented? I ask the Minister of State to detail the data that can be transferred. The agreement states that data will be available to the Department of Homeland Security, meaning the bureau of customs and border protection, US immigration and customs enforcement and the office of the secretary. The data cannot be provided to other sections of the department, such as the citizenship and immigration services, transportation, security administration, the US secret service, the coast guard and the federal emergency management agency. What monitoring system is in place to ensure the information is not transferred to another section of the Department of Homeland Security? Assurances have been given and we hope and expect they will be honoured.

The agreement refers to information that will be sealed and can only be accessed by certain bodies. How can this be guaranteed and who will oversee it? The agreement also allows any member state to suspend the data flow if it has concerns about inappropriate use of the data. This is fine in theory, but what rights does a member state have in doing this? If inappropriate data is being collected or if data is being accessed by unauthorised bodies in the US and a member state suspends the data flow, what are the implications? Who will adjudicate if the agreement has been breached? What recourse does the member state have or are we at the mercy of the US authorities who can dictate the conditions whereby citizens can enter the US? This is the underlying problem because the US calls the shots on entry to the country. The rest of us are powerless in this respect. The EU and its individual member states fear that when concerns are raised the US authorities may refuse entry to, for example, Irish flights. This would create chaos. While safeguards exist in paper, I am doubtful about the level of protection they will afford, given the lack of clarity about how they will be monitored or the redress an EU state will have in the event of those safeguards or the agreement being breached.

There is general agreement that we need to move towards a framework which, as far as possible, guarantees the protection of security and citizens' fundamental rights. There are clear and inherent difficulties in reaching such an agreement. I again urge the Minister to use whatever powers of persuasion he has to ensure that adequate time is allowed within the EU to ensure that the two sides of this agreement are adequately addressed in negotiations for a more permanent agreement and that by the beginning of 2007, these negotiations would be under way.

It is generally accepted that it is one thing to have an agreement between the EU and the US but what is definitely needed is a worldwide agreement, although it is difficult to know the basis on which this can be achieved. Given the nature of the terrorist threat, it is wholly inadequate that an agreement on this matter is confined to the EU and the US. We need to examine putting in place a platform for reaching this kind of wider agreement, which is essential if we are to improve and tighten up international security in respect of the threat from international terrorism.

In respect of the manner in which we are dealing with this matter today, we are faced with a motion under Article 29.4.6° of the Constitution which requires the approval of this agreement by both Houses. I accept that, procedurally, this needs to be done but if we are following this procedure, can the Minister of State explain why it is necessary? This procedure allows another agreement to override the Irish Constitution. From my reading of this, it is not clear why we need to override the existing protections in the Constitution. It contains protections relating to matters such as data protection, security and the rights of individual citizens which this motion will override. Will the Minister of State identify why we need to override the provisions of the Constitution and the specific protections within the Constitution which will now be overridden by this agreement? This is an important point. We do not move to override any of the protections or provisions in our Constitution easily. The Minister of State has a serious obligation to outline to us today the precise reasons we need to do this and the precise protections in the Constitution which will be set aside to allow this agreement to be adopted.

Aengus Ó Snodaigh

Tá mé ag roinnt ama leis na Teachtaí Connolly agus Eamon Ryan.

Acting Chairman (Dr. Cowley)

Deputy Ó Snodaigh wishes to share time with Deputies Connolly and Eamon Ryan. Is that agreed? Agreed.

Aengus Ó Snodaigh

Since 5 February 2003, the US requires in-flying airlines to provide the US authorities with electronic access to 34 items of data on passengers. While some passenger data systems contain a limited amount of information, others contain far more extensive data, such as details of past travel, car and hotel reservations, telephone numbers, e-mail addresses, residential and business addresses and credit card information. Therefore, in respect of fundamental privacy rights versus an advancing Big Brother state, this potentially expansive agreement should not be entered into lightly or behind closed doors. EU member states should not allow themselves to be bullied into applying an agreement which fails to guarantee the data protection rights of its citizens or, at the very least, the equivalent of the data protection rights they enjoy in their own states.

In 2003 and 2004, the European Parliament passed a number of resolutions which were highly critical of the PNR agreement. It then took a case to the European Court of Justice, ECJ, contesting both the legal basis for the agreement and its content. Unfortunately, when the ECJ upheld the European Parliament's challenge last summer, it decided not to address the question of the agreement's content in its ruling because, on the basis of the "legal grounds" challenge, it determined that the agreement should be annulled anyway. In a cynical move, the Council of the European Union, in which members of the Cabinet participate, decided last Friday to change the treaty basis on which to permit the agreement. This decision takes no account of the European Parliament's legitimate challenge to the substantive content of the agreement, which I have no doubt would have been upheld by the ECJ had it taken the time to examine it. This is not a transport issue, rather it is a justice issue. Shame on the governments of Europe for pretending otherwise.

The US PNR requirement forms part of the so-called "war on terror" and one of the first casualties of this war has undoubtedly been civil liberties. We have only to look to the rights denied prisoners in Guantanamo Bay and the programme of extraordinary rendition to be sure of this. The proposed PNR agreement would tie the fundamental data protection and privacy rights of Irish citizens flying to the US to ever-changing and ever more regressive US laws because the agreement stipulates that the US Department of Homeland Security can process PNR data "in accordance with applicable US laws". Therefore, if the law changes in the US, the US Government can then change how it processes and stores PNR data on European citizens, the period for which this data can be held and how and who it can be passed to without renegotiation of the PNR agreement between itself and the EU.

No one has stopped to consider whether the fundamental rights-infringing PNR agreement in operation so far has actually contributed to a reduction in crime. Why did the Government not question whether the arrangement has been effective before proposing its continuation and approval to the Houses of Oireachtas? At a seminar on the PNR to which air carriers were invited earlier this year, they were asked how many planes had been diverted or sent back to their place of origin after taking off because of PNR data on one or more passengers and how many times should these planes not have been diverted. The companies replied that planes were diverted ten times and that on all these occasions, the alarm raised turned out to be false.

Ireland can opt out of this agreement and can negotiate an agreement of its own if the need arises. Alternatively, it can take the lead within the Council of the European Union in demanding a more acceptable agreement. I call on the Government to amend the proposed agreement before its adoption to ensure that, at the very least, the annual joint review includes a requirement for an evaluation of the agreement covering both the detail of its operation and its effectiveness against its stated objective of "fighting terrorism" and that any change in US, EU or Irish data protection provisions relevant to the operation of the agreement would prompt an immediate and transparent renegotiation of the agreement requiring further approval by both Houses of the Oireachtas.

Mr. Eamon Ryan

This is a very difficult matter for the Dáil to consider and has been made even more difficult by the fact that, as Deputy Shortall and others noted, we were only informed about the issue yesterday evening. I understand the frontline Minister was unaware of the requirement for us to pass this motion and that we are, in a sense, second last in the EU to do so. Every EU jurisdiction has approved the agreement, with the exception of Ireland and another state. This puts us in a very difficult position because no one would dispute or disagree with the supposed intent, namely, the provision of data to combat terrorism, such as the events that took place in London in July 2005, Madrid in March 2004 and New York in September 2001. However, this is a balancing act as we also seek to ensure the rights and privacy of Irish and European citizens are maintained in any arrangement with another state, such as the United States in this case. It is difficult in the available timeframe to read the details of the undertaking given by the Department of Homeland Security and establish whether those rights will be correctly protected.

Our party, like our sister parties in the European Union, has significant and real concerns regarding the nature of this agreement and a breach of the principle on the right to privacy which exists within the Union. The principle held in other European countries is that information should only be used for the purpose for which it is collected. If we have control over data handed on to a particular agency, at least we know what its use will be and the conditions under which it will be used.

Effectively, this agreement will mean handing over data to a sovereign foreign government and acceding that it has the right to pass on that information to other agencies within that state where the same data control measures may not apply. We may not have any idea what data control measures will apply. That sovereign state may forward the data to another sovereign state based on its assessment of need. Our control over or understanding of the use of the information we yield and controls over its use will no longer exist. We will hand over in trust that information to the current Administration in the United States.

We could and should have sought a better agreement to protect the right to privacy, cherished and valued within the European Union. Such an agreement should in no way be taken as a weakening of our will to fight terrorism. That is certainly not the intent of this side of the House. The will to fight terrorism should not override our desire under proper constraints to protect the interests of our citizens. We could and should do better than what is set out in this motion.

We are in a difficult position. If we vote down the motion, will we be seen as fighting against the war on terrorism? Will be seen to be on one side rather than another? I trust any other administration would see beyond such simplistic analysis. I trust an administration of the United States would view European legislators as standing up for the principles, rights and freedoms it embodies and state it understands the difference of opinion and the reluctance to hand over control on the right to privacy. It would understand a parliament standing up for the right to privacy of its citizens and having a willingness to provide information but also a desire that the material and data be used in certain ways with certain controls.

When I read this undertaking from the Department of Homeland Security, I see fundamentally we have ceded control on the right to privacy. We could justify it if it were used in a narrow context such as a war against terrorism or valid security reasons. I do not object to that. In reading the undertaking, I see no guarantee or understanding that will be its limit. In yielding data which may be passed on to other governments or third parties we will step too far. My party opposes the motion.

Mr. Connolly

I wish to state that I received information on this matter only approximately one hour ago. It affords one little opportunity to research the matter and one must question the motive. If other countries have already dealt with this, why were we left until now? We have seen various examples of legislation rushed through the House. In any context, rushed legislation does not make for sound legislation. I would prefer if we had the information for a little longer. My knowledge of PNR is that airlines run a check on passengers prior to departure and they will now have 72 hours longer to do so.

The requirement of passenger names by the United States conflicts with a number of governments on privacy laws. We have various wide-ranging agreements between the United States and the European Union. This hits at privacy laws. I have no doubt many people are not worried. They are more concerned with being fit to travel to the United States. For some people, the change from having to go to the United States Embassy for a holiday visa was an ease. Some people were lucky enough to get multiple indefinite visas. In that regard, it possibly does away with that application system.

Many people are concerned this represents a major act of faith in the integrity of the Department of Homeland Security. A number of issues are raised such as Guantanamo Bay. That Department has engaged in a policy of extraordinary rendition to countries which permit torture. A recent example is that of a Canadian citizen who was an innocent travelling through the United States. He was picked up, sent off and tortured. Apologies and questions on how and why this happened are now coming from all directions. We must address these issues. Rushing through this motion does not give us time to examine what could happen.

Earlier, it was pointed out that much of this agreement hinges on United States law. The law of any country changes from week to week. If the rules changes, will we be provided with an opportunity to reconsider this legislation or examine its implications? These are difficult issues and we should have an opportunity to consider them.

The anti-terrorism security measures which followed the events of September 2001 form part of the background to this. For some time, the United States authorities have required airlines on transatlantic routes to supply personal information on passengers in advance of travel and this is commonly known as PNR. The transfer of this data takes place within the framework of a decision by the European Commission under EU data protection legislation. Undertakings given to the Commission by the United States authorities limit the use to which the data will be put. This protects the rights of EU citizens while at the same time assists international efforts against terrorism. This is the nub of the issue. We want to protect the citizens of the EU but we are concerned about any further use to which the data could be put. For how long will the data be stored? Can it be stored indefinitely? That would infringe privacy rights.

We all recognise we must act to counter international terrorism in which aircraft have been used in the past. We do not want our country to be used as a conduit. The European Court of Justice ruled on 30 May 2006 that the legal basis for the decision was not appropriate. We will put the onus on airlines to supply names and that is not an appropriate function for airlines. A threat is implied to deny landing rights if one does not comply. Effectively, that is blackmail. We will have little choice in the matter. These issues should be addressed and I am concerned we do not have a wide enough timeframe to do so.

Mr. Coveney

I welcome the opportunity to speak on the motion to approve on behalf of the Oireachtas participation in an interim agreement between the EU and the US on the continued use of passenger name records data.

The history of PNR data between the EU and US stems back to 11 September 2001, the beginning of the so-called "war on terrorism" for the United States, and the fundamental change in mindset in the American public and US policy makers on security matters generally. I was in New York two weeks after 11 September, when the city and country was still shell-shocked by what had occurred. The response was always going to be security obsessed, and understandably so. Since then, led by the Department of Homeland Security, there has been a particular focus on security measures in airports and in the airline sector generally. The resultant consequences are inconvenience for passengers coming from and going to the US and a compromise in people's civil liberties and, some would say, fundamental rights.

While for the most part, US citizens have accepted new security measures, the non-US travelling public, travelling through or to the US, have questioned the lengths to which the US authorities are going with security concerns, particularly the collection of passenger data. Many in the EU are uncomfortable with the US insistence on PNR data and fingerprint information before any visit to the US. These new measures have affected Ireland more than most. Even if we still enjoy a visa waiver programme, the volume of traffic to and from the US makes it even more relevant to Ireland, and to Britain, than to many other EU countries.

Until recently the transfer of passenger data has taken place within the framework of a decision by the European Commission under EU data protection legislation and undertakings given to the Commission by the US authorities to limit the use of such data to protect the privacy rights of EU citizens while assisting in the international effort to counteract terrorism. Serious concerns, however, were raised in the European Parliament and elsewhere at the start of the year that the agreement by the EU and US on passenger data sharing was not legally sound. A case was taken to the European Court of Justice, which ruled on 30 May that the legal basis for the Commission decision was not appropriate and, therefore, could not stand.

As a result of the sensitivities of the issue, the ECJ allowed the agreement to remain in place until 30 September to allow time for the EU and US to come up with a new agreement that would be legally sound and would serve the same purpose as the previous agreement. In 2004 the Commission signed up to a serious commitment between the EU and US without having the competence to do so. It is important to note that the ECJ decision had nothing to do with infringements of people's fundamental rights or civil liberties, even though politicians have raised those concerns on many occasions. Instead, the legal decision was an issue of competence.

The new agreement, which is an interim arrangement that only lasts until 31 July 2007, has the necessary legal basis if all EU member states sign up to it — Ireland is the second last to do so. This is an interim agreement for a reason, namely, to allow for the negotiation of a more comprehensive and acceptable agreement for both sides. This suggests that not everyone is happy with the agreement, as many consider it does not strike a balance between civil liberties and privacy and the need for a comprehensive agreement to counter international terrorism.

The European Parliament has been at the heart of this debate and was primarily responsible for bringing the case before the European Court of Justice in May. The European Parliament, in its hotly debated report, recommended a two-step negotiation strategy on behalf of the European Union on this issue. The first thing it proposed was a recognition that a new, short-term agreement to run for a set period was necessary because there was no time to negotiate a more comprehensive agreement and because of the strongly held views in America. MEPs recommended, however, that we should seek some changes between the 2004 agreement and what we will agree in the interim. The main recommendation was for a change in the process of allowing full and open access to all passenger data for the Department of Homeland Security in the US and a move towards a system that would mirror the "push" system between the EU and Canada and the EU and Australia, where passenger data information would be given to the Department of Homeland Security on request on a case by case basis. This is the essence of the argument, whether we should require airlines to give open access to all data on all passengers, regardless of their background, or we should only agree to provide data on people the US deems to be a risk or in respect of whom it has a reason for requesting data.

That recommendation is not part of the interim agreement because, I suspect, of the firmly held views on Capitol Hill and the Department of Homeland Security. The European Parliament recognised that more time was needed to put together a more comprehensive agreement on air transportation security and sharing of passenger information. This is not only an issue between the US and the EU. If we are genuinely interested in a global war on terrorism, as the US calls it, or combating terrorism at a global level, as we call it in Europe, we must ensure common standards between the EU and other parts of the world.

Many people who recognise the need to counter terrorism still have legitimate concerns about the use of personal information by the US Department of Homeland Security. We must rely on what are referred to in the interim agreement as "undertakings" by the US. The undertakings in this agreement, however, are exactly the same as those in the 2004 agreement. The concerns that have been expressed in the European Parliament and national parliaments across Europe by those who are committed to the war on terrorism and who wish to co-operate with the US in every way that makes sense, on privacy and the US undertakings on the handling of passenger data, still exist.

The essence of the problem is that the United States and European Union take different approaches to this issue. The former considers that because it has been at war with terrorism since 2001, the rules of war apply and it is willing to take more extreme measures. The latter is uncomfortable with this position because Europeans categorise the problem as requiring the introduction of counter-terrorism measures rather than conducting a war. For this reason, it will be difficult to negotiate the type of comprehensive agreement that is required by July next year. If we do not try to achieve this objective, the difference of opinion between the two sides will remain.

Mr. M. Higgins

I welcome the opportunity of saying a few words on this motion. This issue requires certain assurances from the Government side. I may be incorrect in assuming that because the agreement to which the motion refers is short term in nature, we may look forward to a proper debate before July 2007. I seek a categoric assurance that such a debate will take place. If we are to have a new agreement, a fundamental principle arises, namely, the need for a proactive approach to be taken to parliamentary transparency with regard to any such agreements. One cannot enter into inter-state agreements almost on a casual basis and leave it to the citizen to seek to vindicate his or her rights by way of what is usually colloquially referred to as the invocation of civil rights.

Aspects of fundamental law are involved in this issue, even with regard to the process by which this motion has been brought before the House. The process of invoking article 1(11) of the Amsterdam treaty cannot be used without clear guarantees as to the principles of the constitutional protection available to the citizens of Ireland or without fundamental adherence to compliance with such guarantees in law as exist for the protection of privacy in the European Convention on Human Rights and other locations of fundamental legal rights. This is an important principle and it is the reason Deputies from all sides seek a discussion of the type proposed.

The issue is not whether we stand on different sides regarding the war on terror. All parties, Independent Deputies and others in the House have declared their co-operation with the elimination of terror internationally and the elimination of drug movements and hot money associated with international crime. From time to time, the House has debated such instruments as are relevant in this regard.

Much of the problem before us could be solved if a statement was made at the beginning of discourse to Parliament and inserted in the text of the agreement giving effect to the principle that nothing that shall be agreed shall limit or shall be in contravention of any fundamental legal guarantees in relation to the rights to privacy and the rights of the citizen as are reasonable. Either one accepts this principle or one does not. Let us assume the Government is not willing to make such a statement, as is the current position. Effectively, the 1995 European Union data directive has been invoked to demonstrate that the 2004 public records data transfer arrangement lacks legal certainty. The current proposal will not provide legal certainty but will achieve compliance with process as regards the way in which the original agreement should have been transacted in the first place. Standing behind this, and also of fundamental importance, is the guarantee that is necessary regarding the use, abuse or scope of such information.

The European Union has a constitutional relationship which is expressed in treaties with its citizens rather than in a written constitution. It has a duty to its citizens which has been invoked more than once as a legal principle on the privacy issue. Beyond this, legal rights which arise within the European Convention on Human Rights are also available to citizens. Will the Minister of State indicate whether the Government proposes, in further discussion or dialogue in preparation for an agreement by July 2007, to include a preamble that anything that shall be proposed or agreed will require consent and will be in accordance with fundamental principles of international law and the conventions on the rights of the citizen?

Deputy Coveney correctly mentioned that the European Parliament was concerned about this matter and adopted a reasonable position in the debate. The Party of European Socialists has issued a statement on the transfer of passenger data in which it states:

The US authorities must now apply all the data protection guarantees we are asking of them and which are inscribed in the declarations of commitment. Ultimately, there is an urgent need to negotiate a new agreement in 2007, as proposed by the European Commission and the European Parliament, in order to determine a global and binding framework of guarantees for the protection of both security as well as citizens' fundamental rights. This new agreement will have to make provision for a European citizen's right of effective judicial redress in the event of a violation.

This point has been made by my colleague, the Labour Party spokesperson, Deputy Shortall. Is what is being offered in the interim an adequate monitoring mechanism? Does it provide a mechanism for judicially reviewing a breach? How would sanctions fall? Will the Government accuse the Opposition of being in some way soft on a measure related to the control of terror if we are not utterly compliant? I am sure it would not go down that road as it would amount to a form of intimidation.

The statement from the Party of European Socialists continues: "The European Parliament should also be involved in this process alongside the national parliaments". It is not satisfactory to regard this as a technical issue.

I do not mean disrespect to the current incumbent but the Department of Justice, Equality and Law Reform does not have a good record on these issues. For example, it wrote to the Secretary General of the Council of Europe suggesting in a kind of blind way that if anything untoward was taking place in Shannon Airport as regards extraordinary rendition, the country's civil aviation legislation would allow any individual to take action. It omitted to state, however, that Ireland has not taken any steps to use the powers available under the relevant legislation. What indication is there that we would even have an inclination towards providing such protection as the citizen would want?

I put it to the House that we are not at the high end of trust because considerable trust has been eroded. A question arises, for example, regarding whether data gathered for a certain purpose would be used for any commercial purpose or any purpose which would be against the interest of the person to which it relates, for example, with regard to illness, employment, association, the right to communicate and so forth. With whom would the passenger data be legally shared? Will two different intelligence systems operate, one in Europe and one in the United States, with the former under the discipline and redress of international law and the latter outside the discipline of some aspects of international law because of the failure to sign conventions? These are serious questions.

On a previous occasion, I raised with the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, the marked reluctance shown by draughtspersons to insert in the preamble of many Bills a statement of principle such as that which I have outlined. There is nothing to prevent legislation from opening with the stipulation that nothing hereunder proposed shall breach the principles of international law, conventions that have been signed and ratified with the Government, fundamental aspects of rights as guaranteed in the European conventions etc. From that basis one could then go on to say that it is a matter that can be justiciable as to whether or not there is a breach. One could also offer transparency, a review mechanism and a redress mechanism. However if we are to get fairness and security it requires that both parties sign up to a transcendent set of disciplines that are beyond them. In that way one does not put the requirements of security in extraordinary circumstances into tension with the rights of citizens. It is insufficient to say the State shall "make such arrangements as it technically requires" and therefore citizens can seek afterwards to argue from the framework of civil liberties when they are infringed. The obligation is on any government to examine it fundamentally as a matter of balance in international law and to anticipate the difficulty rather than suggest that the individual citizen must seek redress on a limited basis afterwards.

Mr. Cuffe

With the permission of the House I intend to share time with Deputy McHugh.

Acting Chairman

Is that agreed? Agreed.

Mr. Cuffe

This agreement is about more than the sharing of airline data. It is a fundamental disagreement between the old world and the new world. The last five years have shown clearly the differences of opinion between both sides of the Atlantic and within countries on this side of the Atlantic. A clear message has come from Washington — you are either with us or against us. It is crucial that we seek the common ground in the dynamics of world reaction rather than increase the polarisation of the debate.

One cannot bring peace to this world by initiating a war on terror. One cannot bring peace to developing countries by bombing them back into the Stone Age. One cannot bring peace by spending more on armaments than on Africa. We are discussing kowtowing to Washington rather than allowing Europe to develop its own voice. Ireland is at the crossroads in this and there is a significant onus on our foreign policy and our reaction to this proposal to say we should not meekly bow down to what the United States wants. We should say it may not be appropriate to give the United States the huge amount of data it seeks. I am concerned that we will have to give details of people's credit card records to the US authorities if they wish to travel there. I worry about where this ends — criminal records, credit card details, next we will have to give information on penalty points. We must strongly and carefully point out the difficulty in contributing to this frenzy on which the US has embarked in its war on terror. There are many great aspects to the United States of which its can-do attitude, its dynamism and its assistance in times of need are examples. However, when it comes to sharing the minutiae of passenger information I worry that the US is subsuming this data into an enormous expenditure on what it believes will protect its citizens. I am not convinced.

If the US were to spend even a small fraction of what has been spent on the war on terror over the last five years we could be well on our way to solving many of the problems of developing countries. If we spent a small fraction of that money on nutrition, health, education and clean water we could achieve so much more than dropping the equivalent of millions of tonnes of TNT on Afghanistan or Iraq. We must face up to the United States on this. I speak as a citizen of both Ireland and the US because there has been a major polarisation in the US. President Bush has not brought the United States in the right direction and a majority, which is no longer silent, wants to see a process of engagement with the developing world rather than pushing into this war on terror. For these reasons, and many others, we should oppose this proposal.

Mr. McHugh

This item of business has been foisted on this House with unseemly haste. Last night was the first time we became aware of the decision to take this business today. I regard that as an abuse of trust between all of us in this House. There is insufficient time to give full consideration to this measure. Everybody in this House knows the dangers of rushing business through without giving it full attention. We are dealing with a provision which will impact on the rights of our citizens and we cannot approve such a measure without adequate time to consider all the angles. The genesis of this measure is in the events of 11 September 2001 and I agree that we must be vigilant. We need co-operation between various jurisdictions and must ensure that, as far as possible, our people are secure as they travel around the world. However we also need to ensure that the rights of our citizens are not infringed unduly.

This measure arises because the European Court of Justice ruled that the legal basis for the Commission's decision was not appropriate and, in delivering its judgment, allowed the agreement to remain in force until September 2006 to give time for the EU and the US to come up with a new agreement which would effectively have the same outcome. This decision will require the agreement of all member states as well as the EU Commission. One other member remains to approve this new measure. It is essential that we do not rush this through without full debate. We are entitled to take our time, to debate the matter in a full, comprehensive manner because it affects the rights of our citizens. I understand that this is an interim measure, and will lapse next May, but if that is not the case we should not entertain in any circumstances the notion of putting it through the House as it is presented or in the hasty manner in which it has been dealt with. While the need for security is great, we also need to be rational in our approach. We are not at war and our actions should be proportionate and reasonable.

Minister of State at the Department of Transport (Mr. Gallagher)

I thank the Deputies who contributed to the debate and who posed a number of questions that I will endeavour to answer.

I wish first to apologise, if it is necessary to do so, to Opposition spokespersons and Members for not having more time available to debate the motion. As soon as it was possible to provide a briefing note, we did so. It is merely a case that circumstances have given rise to its being dealt with in this way. The European Parliament brought this matter before the European Court of Justice, which found that there was no first pillar. Afterwards the European Union and the United States entered into discussions but, in the meantime, the agreement did not lapse on 30 May when the European Court of Justice delivered its decision. It provided, pragmatically and realistically, for a period of 90 days, which brought matters up to the end of September. Ostensibly, there was no major change involved. However, as a result of the case and the dialogue that occurred on both sides, the European Union has a legal base for this but the agreement would have run out on 30 September. That is why we are anxious that the motion be agreed to.

There are concerns among Members regarding data protection and Deputy Shortall posed a number of questions. The information that will be provided will be used for specific reasons and we do not want it to go beyond that. If it is given to the Department of Homeland Security or subsidiary bodies, that is as far as it should go. An undertaking has been given to the European Union that this will be the case.

I wish to consider this matter from a practical point of view. For the benefit of anyone who raised queries in respect of this matter, they should be aware that I am not suggesting that we are prepared to compromise on safety. None of us is prepared to compromise on safety. We must, however, consider the practicalities and the views of the people we represent. In that context, there has been little, if any, negative feedback from airline users regarding the PNR.

Both Houses have been given the opportunity to debate this matter. It is not a case that we want to provide such an opportunity, we are obligated under Article 29.4.6° of the Constitution to do so. As already stated, the agreement runs to July of next year. If a new agreement is concluded next year, the Minister for Transport, Deputy Cullen, and I will consult the Attorney General's office in the normal way and deal with any legal or constitutional implications that might arise for the Department, the Government or the Houses.

It should be emphasised that the agreement relates only to access to those 34 items of information that may be requested. There is no agreement in place which entitles the US authorities to access any information over and above the 34 items to which I refer. I will not discuss the matter in detail because data relating to the 34 items, which include a person's name and address, frequent flyer information, seat number, bag tag, booking number etc., is provided.

A total of 23 countries have approved the agreement and Ireland will be one of the final two to do so. In that context, it was suggested that time should be provided for a more comprehensive debate. I believe I represent the views of the vast majority of Members and the Irish people when I say that they are anxious that this arrangement should continue in place after 12 October. Unanimity is required within the European Union. We should not follow others but I am of the view that what we are doing is right, practical and in the best interests of travellers and those who we represent who want to visit the United States.

I could be facetious and state that people need not provide the information requested, but if they do not do so, they will not be permitted to travel to the United States. In a sense, the provision of the information is voluntary but if one wishes to travel to the United States, its provision is obligatory.

Provision is made in the agreement for reciprocal sharing of information but there are no concrete plans at this stage to ask the US to provide PNR data to the EU. The United States possesses a centralised system but the EU does not and we should consider this matter in the period before the EU either abandons the agreement or enters into a new one post-July 2007.

There is concern about the use to which this information may be put outside of what is required to ensure that we have safe means of travel, that there is no repeat of the attacks of 11 September 2001 or that there is no chance that what could have been another serious incident in London some months ago could come to pass.

A number of undertakings were issued by the US Bureau of Customs and Border Protection on 11 May 2004. These indicate that the United States can be considered as ensuring an adequate level of protection for PNR data concerning passenger flights to and from that country transferred from the European Union.

Acting Chairman

The Minister of State must conclude.

Ms Shortall

With respect, a number of questions were raised and the Minister of State has not addressed them.

Mr. Gallagher

I am trying to do so. The Deputy asked why no briefing was provided and I answered that. She also inquired about the 30 September deadline and I explained why it was extended by 90 days after the European Court of Justice delivered its judgment. She further asked about safeguards, and I referred to that.

Ms Shortall

Who will monitor the agreement?

Mr. Gallagher

The question of monitoring will be a matter for discussion between the European Union and the United States.

Ms Shortall

Who will monitor the agreement?

Mr. Gallagher

I am answering the Deputy's questions, of which I took note. I also answered the question relating to the details that will be requested. I was asked if member states could suspend the flow of information. If it is inappropriate, they may do so.

Ms Shortall

Who will arbitrate on that matter?

Mr. Gallagher

Another question was posed regarding the provision of adequate time for both sides in respect of the agreement and the necessity to override the Constitution. The Office of the Attorney General was consulted on the approach we have taken and it confirmed that this is the appropriate procedure to permit Ireland to participate in the agreement. I assure the House that between now and the conclusion of a replacement, or abandonment of the agreement, by July of next year, the various issues to which Members referred will be raised by me and-or the Minister, Deputy Cullen, in the context of our participation in discussions at the Council of Ministers in the coming months.

Question put.

The Dáil divided: Tá, 95; Níl, 16.

Tá

• Ahern, Michael.
• Ahern, Noel.
• Allen, Bernard.
• Andrews, Barry.
• Ardagh, Seán.
• Blaney, Niall.
• Brady, Johnny.
• Brady, Martin.
• Breen, Pat.
• Brennan, Seamus.
• Broughan, Thomas P.
• Burton, Joan.
• Callanan, Joe.
• Carey, Pat.
• Carty, John.
• Costello, Joe.
• Coveney, Simon.
• Cowen, Brian.
• Crawford, Seymour.
• Cregan, John.
• Cullen, Martin.
• Curran, John.
• Davern, Noel.
• de Valera, Síle.
• Deasy, John.
• Deenihan, Jimmy.
• Dempsey, Tony.
• Dennehy, John.
• Devins, Jimmy.
• Durkan, Bernard J.
• Ellis, John.
• English, Damien.
• Finneran, Michael.
• Fitzpatrick, Dermot.
• Fleming, Seán.
• Fox, Mildred.
• Gallagher, Pat The Cope.
• Gilmore, Eamon.
• Glennon, Jim.
• Grealish, Noel.
• Hanafin, Mary.
• Harney, Mary.
• Hayes, Tom.
• Healy-Rae, Jackie.
• Higgins, Michael D.
• Howlin, Brendan.
• Kelleher, Billy.
• Kelly, Peter.
• Kirk, Seamus.
• Kitt, Tom.
• Lenihan, Brian.
• Lenihan, Conor.
• McEllistrim, Thomas.
• McManus, Liz.
• Martin, Micheál.
• Moynihan, Donal.
• Moynihan, Michael.
• Mulcahy, Michael.
• Naughten, Denis.
• Neville, Dan.
• Nolan, M.J.
• Ó Cuív, Éamon.
• Ó Fearghaíl, Seán.
• O’Connor, Charlie.
• O’Dea, Willie.
• O’Donnell, Liz.
• O’Donoghue, John.
• O’Donovan, Denis.
• O’Keeffe, Jim.
• O’Keeffe, Ned.
• O’Malley, Fiona.
• O’Malley, Tim.
• O’Shea, Brian.
• O’Sullivan, Jan.
• Parlon, Tom.
• Pattison, Seamus.
• Perry, John.
• Power, Seán.
• Rabbitte, Pat.
• Ring, Michael.
• Ryan, Seán.
• Sherlock, Joe.
• Shortall, Róisín.
• Smith, Brendan.
• Smith, Michael.
• Stagg, Emmet.
• Stanton, David.
• Timmins, Billy.
• Treacy, Noel.
• Twomey, Liam.
• Wall, Jack.
• Wallace, Dan.
• Wallace, Mary.
• Wilkinson, Ollie.
• Woods, Michael.

Níl

• Boyle, Dan.
• Connolly, Paudge.
• Cowley, Jerry.
• Crowe, Seán.
• Cuffe, Ciarán.
• Gormley, John.
• Gregory, Tony.
• Healy, Seamus.
• Higgins, Joe.
• McGrath, Finian.
• McHugh, Paddy.
• Morgan, Arthur.
• Murphy, Catherine.
• Ó Snodaigh, Aengus.
• Ryan, Eamon.
• Sargent, Trevor.

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Boyle and Ó Snodaigh.

Question declared carried.

Sitting suspended at 1.40 p.m. and resumed at 2.30 p.m.