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Seanad Éireann debate -
Tuesday, 16 Jun 2009

Vol. 196 No. 1

Aviation (Preclearance) Bill 2009: Report and Final Stages.

I remind Senators that a Senator may speak only once on an amendment on Report Stage, except a proposer of an amendment who may reply to the discussion on the amendment. Each amendment must be seconded. Amendment No. 1 has been ruled out of order because it does not arise from Committee Stage proceedings.

Bill recommitted in respect of amendment No. 1.

I move amendment No. 1:

In page 7, between lines 26 and 27, to insert the following:

"(2) A preclearance officer may not be in possession of a firearm in the course of exercising any function under this Act.".

The purpose of the amendment is to make it clear that the officials from the United States of America must be unarmed. On Committee Stage I welcomed the statement from the Minister that only Irish legislation would apply to the operation of the joint agreement between Ireland and the US on preclearance. It is important, therefore, that every possible contentious issue is clearly referred to in the legislation and covered to the satisfaction of the Irish people. I do not believe the Irish people would wish the US preclearance officers to be armed.

The United States Customs and Border Protection, since its inception in 1924 when it comprised volunteers from the Texas Rangers, has always been an armed force. It is important to deal with that and prevent the possibility that its members could be armed in this country.

We discussed this on Second Stage, when both I and Senator Ryan raised the matter. The Minister gave a categorical assurance that a preclearance officer would not be in possession of a firearm. The amendment seeks to copperfasten that. This is a matter of potential sensitivity to the Irish people and while we accept the Minister's bona fides in this regard, it is such an important point that it merits inclusion in the legislation.

I made it clear on Committee Stage that preclearance officers will not be allowed to carry any weapons in the preclearance area. The use of any type of weapon by preclearance officers was entirely rejected by the Irish negotiating team during the preclearance discussions. We were specific and clear on the matter and that was agreed. It was made clear beyond doubt in the agreement that security within the preclearance area would be provided by the Garda Síochána.

The intention behind this amendment is to make it explicit in the legislation that the US officers will not be allowed to possess firearms in the course of exercising any function under the legislation. However, in their wording of the amendment the Senators might actually be causing problems in this regard. By confining the prohibition in the amendment specifically to firearms, it could be read by implication to infer that the preclearance officers have a right to carry other types of weapons, which is clearly not the intent of the Senators. In trying to make explicit something I have already clarified to be part of the agreement the Senators are opening a door to allow for other types of weapons to be used by preclearance officers. It creates that doubt.

I accept what Senators have said and I hope they will accept my response on this matter. I cannot accept the amendment but, to give due regard to the Senators' intent in the amendment, I hope they will accept an assurance that, between now and Committee Stage in the Dáil, I will examine the matter further and perhaps propose an amendment to deal with it.

I do not agree with the Minister the amendment opens up the possibility that other forms of arms would be allowed, but I hear his assurances. If he feels he can return with a wording that maintains the spirit of our amendment in not allowing firearms, and can improve on it, I will accept his assurance in that regard. I will not press the amendment.

Amendment, by leave, withdrawn.
Bill reported without amendment.

Amendment No. 2, in the names of Senators Ryan, White, McCarthy, Prendergast and Hannigan, is out of order.

May I comment on that?

I am afraid you cannot, Senator. The amendment is ruled out of order.

According to a letter I received, the proposed amendment is similar to one that was negatived on Committee Stage. Although there is some similarity, this amendment deals with the response of the Minister on the day.

The Cathaoirleach ruled it out of order and there is nothing I can do. I cannot allow discussion on it.

You are Acting Chairman.

The decision was made by the Cathaoirleach, who ruled the amendment out of order. I do not have latitude concerning a discussion of it.

I accept the ruling but under severe protest.

Amendment No. 2 not moved.

Amendment No. 3, in the names of Senators Ryan, White, McCarthy, Prendergast and Hannigan, arises out of committee proceedings.

I move amendment No. 3:

In page 9, line 5, to delete "or is otherwise expedient" and substitute the following:

"or the person being searched is a minor or a person with an intellectual disability and the person of the other sex who is present is a parent, guardian or relative of that person or is a person whose presence is otherwise in the best interests of the person being searched".

We argued this on the previous occasion. The reference to "expedient" renders the protection meaningless. It undermines the right of a person not to be searched in the presence of the other sex. When he visited the House last week to discuss this on Committee stage, the Minister said this was intended to protect minors. I believe he and his officials are sincere, but if that is the case the section should be phrased in tighter terms to limit those persons who can be present when an underage child is searched in a manner that involves the removal of clothing. We dealt with the Minister's response and improved the legislation. I believe he should accept this amendment.

I very much appreciate what the Senator is trying to do and I do not disagree with his intent in this regard. I gave the matter some thought following the discussion we had. I know Senator Ryan feels strongly that the Bill should be reworded to avoid the use of "expedient" and "expediency". These probably have a different meaning in everyday language than in legal parlance and that is causing a difficulty for the Senator. On the previous occasion I made it clear that the phrase "or is otherwise expedient" was intended to protect minors. The Senators have returned with an amendment to cover minors and persons with an intellectual disability and cases where a person of the other sex is present. However, I am informed from a legal point of view, that when a number of exceptions to the general rule are specified there is always a danger that a particular exception might be excluded. In this case the Senators propose that the final phrase be deleted and replaced by their amendment which specifies a number of exceptions to the general rule that no person of the opposite sex should be present during the search. When one tries to specify all such exceptions the danger is that a particular one might be excluded and I know that is not what the Senators intended.

One situation I can think of which might fall into this category is that of a traveller with a visual impairment who might want a spouse or partner present while being searched. There is a real problem when one starts to specify in legislation that such a category of person should not be included.

If the Senator is willing, I would like to try to meet him part way on this issue. I shall give it some thought before the Bill reaches Committee Stage in the Dáil to see whether we can redraft the wording to give better expression to the intention the Senators and I have. I reiterate what I stated on the previous occasion, that according to the legal advice I have, this wording is sound and using the phrase "or is otherwise expedient" gives enough discretion and so on. I can see the Senator's point of view and if he is willing to withdraw the amendment, I shall certainly examine it before Committee Stage in the Dáil.

The Minister will recall that our difficulty with the wording in this section concerned the use of the phrase, "or is otherwise expedient". Our original amendment proposed to remove only that wording. We felt the preceding wording was sufficiently strong to deal with the issues. The Minister's response was to raise the matter of minors. We were happy to come up with a form of wording which dealt with that issue but would have been happy to leave out "or is . . . expedient" and leave the first section as it was. We felt it was sufficiently strong and that the use of that phrase undermined the assurance given. That is our position.

We feel the amendment is very important and if the Minister would reconsider it or perhaps consider returning to our original amendment, leaving out "or is otherwise expedient", we would be happy with that. However, I am happy with the assurances given by the Minister and shall withdraw the amendment. I am interested to hear the Minister's comments about reverting to our original amendment or on whether leaving out "or is otherwise expedient" might be sufficient.

The reason I quoted the example of a minor was that it was only one possible case and was not intended to be an exhaustive list of cases. The Senator came up with some examples in his amendment. I will look at it again to see whether there is any wording or phrase we might use to try to meet the concern of everybody. I will consider leaving out "or is otherwise expedient" but I believe this would tie people's hands too much. The situation would be black or white with regard to who might or might not be present. I will consider it further because it is worthy of further consideration.

Amendment, by leave, withdrawn.
Government amendment No. 4:
In page 9, to delete lines 34 to 41 and substitute the following:
"(d) persons authorised by the airport authority who require entry for a purpose relating to their employment, shall not enter—
(i) a preclearance area, or
(ii) where regulations are made to whichsection 2(2) applies, a place referred to in that subsection that is, for the time being, operational for the purpose of preclearance.”.

An amendment was tabled also by Senators Ryan, White, McCarthy, Prendergast and Hannigan, arising from committee proceedings.

This Government amendment was drafted on foot of a similar amendment by the Labour Party Senators and is purely technical, concerning the alignment of the words "shall not enter" in section 7. In the printed text of the Bill the words are associated with section 7(1) (d) when the intention is that they also refer to paragraphs (a), (b) and (c) of section 7(1). The amendment now makes it clear that the words “shall not enter” refer to all the provisions of section 7(1). I thank the Labour Party Senators for bringing that matter to my attention.

I have nothing to add. The amendment was merely to correct a drafting error and I am happy the Government has accepted and moved it.

Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Senators for engaging in such a positive way with the passage of the Bill and for proposing amendments. There were not many because the Bill was reasonably straightforward, although its drafting was complicated. I thank the Senators for the proposals and amendments. I thank the staff in the House, my staff and everybody involved in bringing forward the Bill.

I thank all involved in the production of the Bill and in getting it to this point. It is important legislation that will make a difference to the airports and the regions they are in. I acknowledge the work done by Senator Ryan in improving parts of the Bill which will improve its operation. I acknowledge, too, the positive attitude of the Minister towards the amendments tabled in the Seanad. I am impressed that when previous legislation came from his Department, whether handled by the Minister or the former Minister of State, Deputy Noel Ahern, they listened to what Senators had to say, responded to our points and took amendments on board. When they felt they could not, they came back with ones that met the intent of what we sought. I wish the public could see more of this kind of work.

I thank the Minister for the spirit in which he engaged in debate on the Bill and on the amendments tabled by Senators. I welcomed the Bill on Second Stage and congratulated the Minister on his part in bringing the agreement forward. It is something that will benefit the people and has the potential to benefit business. I thank the Minister for his positive response.

I compliment the Minister and his staff on bringing this Bill forward. It is excellent legislation. I had prepared a few words for Report Stage, but was late reaching the Chamber and the Minister was on his feet. Almost half of my siblings live in the United States and in 1986 I had a difficult experience in JFK Airport in New York. This legislation will now deal with problems of a technical or other nature at this end. It is practical legislation which will be welcomed by any person who travels. It is a step forward and will fit in well with other legislation that has brought us to a position where almost everything can be sorted at this end when we travel. That can only be good for the travelling public. It is wonderful legislation. I thank my colleagues on all sides of the House for their co-operation and thank the Minister for bringing forward this welcome and positive legislation. It is to be hoped the public will see its merits when it is on the Statute Book and signed into law by the President.

Question put and agreed to.
Sitting suspended at 4.15 p.m and resumed at 5 p.m.