Joint Committee on Public Service Oversight and Petitions díospóireacht -
Wednesday, 18 Feb 2015

Use of Irish Airspace and Landing Facilities: (Resumed) Minister for Transport, Tourism and Sport

Vice Chairman

We will deal today with the role of the Department of Transport, Tourism and Sport in facilitating the landing of civilian or chartered aircraft carrying United States military personnel through Shannon Airport.

I remind all those present to turn off their mobile telephones and Blackberry devices because they interfere with the recording system. We are pleased to welcome the Minister for Transport, Tourism and Sport, Deputy Paschal Donohoe, who will make a presentation on the role of his Department in civilian or chartered flights which transport military personnel with their personal weapons or side arms, which remain on board and require prior approval from the Department of Transport, Tourism and Sport under SI 224/1973, Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973 .

The invitation to address the committee arose as a result of ongoing investigations by the committee in regard to Petition 72/12, the US military and CIA use of Shannon Airport and Irish airspace, from Dr. Edward Horgan. The Minister, Deputy Donohoe, is accompanied today by Ms Ethna Brogan, principal officer, aviation services division in the Department; Mr. Niall Curran, assistant principal, aviation services division; and Mr. Barry Gilmore, higher executive officer, aviation services division. I welcome all the witnesses and thank them for forwarding the briefing, which has been circulated to the members.

Before commencing, I must inform the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of the evidence the give to this committee. If they are directed by the committee to cease giving evidence in relation to a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I invite the Minister to make his presentation.

Minister for Transport, Tourism and Sport (Deputy Paschal Donohoe)

I thank the members of the committee for the opportunity to speak to them on this important topic. It is the first time I have had the opportunity to address this committee. I hope that my contribution will be of help to the members in the work they are doing.

Dr Horgan’s petition touches on many important matters such as Ireland's traditional policy of neutrality and our views and policy with respect to international human rights laws. In its initial consideration of the petition, the committee found that the claims made by the petitioners are very serious. The petitioners made an oral presentation to the committee last June and I understand the members of the committee made a fact finding visit to Shannon Airport in October. The Secretary General of the Department of Foreign Affairs and Trade also appeared before the committee last December to discuss the role of that Department in decisions relating to foreign military aircraft.

In March of last year the committee wrote to my Department seeking clarification on a number of matters related to the petition. In response the Department pointed out that many of the issues raised by the petition are more relevant to the Department of Foreign Affairs and Trade. In addition to its appearance before the committee in December, the Department of Foreign Affairs and Trade also addressed these issues in some detail in its written responses to the committee in December 2013 and March 2014. In advance of meeting the members here this afternoon, my Department has also provided the committee with a comprehensive briefing note, which updates and elaborates on the information provided in the Department’s previous letter.

Before addressing the matters that fall within my remit, it is useful to briefly set out the historical context. The transit of US military through Irish airspace and airports is a longstanding practice, which began shortly after the Second World War. Successive Irish Governments have maintained this practice and Ireland has never withdrawn or suspended these facilities. Similarly, successive governments have deemed this to be compatible with Ireland's traditional policy of military neutrality, which is characterised by non-participation in military alliances.

I must make it clear at the outset that as Minister for Transport, Tourism and Sport, my functions in regard to the use of Shannon Airport and Irish airspace by the US military are limited. The relevant functions that I have are outlined in detail in the briefing note provided to the committee.

The issues that are of most concern to the petitioners fall outside the remit of my Department. Questions relating to Irish foreign policy, Ireland’s neutrality, alleged extraordinary rendition and the role of the Garda Síochána are not matters on which I am able to comment in any detail. Similarly, I have no role in regard to flights by military or state aircraft through Irish airspace or landing at Irish airports. Such flights require the permission of the Minister for Foreign Affairs and Trade under the Air Navigation (Foreign Military Aircraft) Order 1952.

A clear distinction is made in both international and national law between military aviation and civil aviation. I am responsible for matters relating to Irish civil aviation legislation and policy.

The 1944 Chicago Convention is the main international treaty governing the operation of civil aviation. Article 3 states that the convention is not applicable to state aircraft, being aircraft used in military, customs or police services. The convention set up the International Civil Aviation Organization, ICAO, a specialised agency of the UN. Ireland was a founding signatory of the convention, has fully ratified it and is an active participant in the ongoing work of ICAO.

At the core of civil aviation law at international, EU and national level is the safety and security of aircraft and persons on board aircraft. It is the responsibility of my Department and the Irish Aviation Authority to ensure that civil aviation using Irish airspace does so in as safe and secure a manner as possible. For good reason, civil aviation is one of the most regulated industries in the world. A comprehensive legal framework at global, EU and national levels applies to all civil aviation using Irish airspace, irrespective of what or who is on board such aircraft.

Civil aircraft have been used by the defence forces of many countries for various purposes for many years. For instance, the Irish Defence Forces often charter civil aircraft to deploy personnel on UN peacekeeping missions abroad. Civil aviation law applies to aircraft being used by the military in the same way as it applies to other civil aircraft. The petition focuses on the use of Shannon Airport and Irish airspace by the US military in particular. Like all other civil aircraft, when such aircraft are used by the US military in Irish airspace, my primary role is to ensure that these aircraft are operated safely and securely, in accordance with applicable laws.

Article 35 of the Chicago Convention states that no civil aircraft may carry munitions of war over a state without that state’s permission. This requirement is ratified in Irish law in the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973, as amended. Under the 1973 Order the carriage of weapons and munitions of war is prohibited in any civil aircraft in Irish airspace and on board any Irish registered aircraft, unless an exemption is granted by the Minister for Transport, Tourism and Sport. The Chicago Convention and the 1973 order apply to munitions of war only, not to military personnel who may be on board civil aircraft.

I have already provided the committee with statistics on exemptions issued under the 1973 order. In 2014, a total of 584 exemptions were issued, a significant decrease from a peak of 1,495 exemptions issued in 2007. The period 2005 to 2011 saw the highest number of exemptions issued. The vast majority of the exemptions granted under the order relate to munitions of war belonging to the US military - this is more a function of geography than policy. Since 2011 there has been a consistent reduction in exemptions due to the withdrawal of US troops from Iraq and the withdrawal of US troops from Afghanistan.

In many cases, for these flights operated on behalf of the US military for which exemptions are issued, the most direct flight path between points in North America and points in continental Europe passes through Irish airspace. The US Department of Defence has used civil aircraft to transport troops and munitions of war between the US and Europe since the Second World War.

In accordance with the provisions of the 1973 order, my Department operates a procedure under which airlines wishing to carry weapons or munitions through Irish airspace or airports must apply for each individual flight at least 48 hours in advance.

Chairman

I am sorry to interrupt the Minister but I have just been advised by the broadcast section that someone has a mobile telephone close to a microphone and it is causing interference. Could everyone check their telephones to make sure they are fully turned off? It is important that we do not interfere with broadcasting. I apologise for interrupting the Minister.

Deputy Paschal Donohoe

That is not a problem, a Chathaoirligh. My Department seeks the views of the Department of Foreign Affairs and Trade on foreign policy issues and the Department of Justice and Equality on security issues.

The Irish Aviation Authority is consulted on aviation safety issues but only on applications involving munitions that are also categorised as dangerous goods. If any of these bodies objects, an exemption will generally not be granted. A copy of the application is also sent to the Department of Defence for information.

As I have stated, the vast majority of exemptions under the 1973 order are issued to US airlines chartered by the US Department of Defence transporting US troops to various destinations around the globe. Usual international practice is that such troops travel with their personal weapons. The weapons are unloaded and no ammunition is on board the flights. Given the unloaded weapons on board, these flights require an exemption under the 1973 order to enter Irish airspace.

Roughly half of these flights land at Shannon for refuelling purposes, while the rest overfly Ireland. The choice of routing for these flights is a matter for the airlines themselves. Around 90% of the exemptions issued are for civil charters carrying troops, with the personal unloaded weapons of the troops on board. For obvious safety and security reasons there are very strict civil aviation rules regarding the carriage of any dangerous goods on aircraft. Unloaded firearms, however, are not categorised as dangerous goods. Nevertheless, any civil aircraft transporting munitions of war in Irish airspace, irrespective of whether they are categorised as dangerous goods, requires an exemption. In addition, while the dangerous goods rules do not apply to the carriage of unloaded weapons, there are other rules regarding the carriage of unloaded weapons in aircraft to ensure the safety and security of the aircraft.

Approximately 10% of the exemptions are for aircraft carrying munitions of war other than unloaded weapons, such as ammunition and explosives. These are usually transported on cargo-only aircraft and the aircraft transporting such munitions do not usually land in Ireland. Such munitions are of course classified as dangerous goods and are subject to the same strict rules that apply to the many other types of dangerous goods that are transported by air every day.

I hope what I have said today, together with the briefing note provided to the committee, have clarified the role I and my Department play in the issues raised by this petition. I am happy to take any questions committee members may have.

Senator Trevor Ó Clochartaigh

Go raibh maith agat, a Aire. I thank the Minister and his officials for attending. This has been a very emotive petition. I was one of the people who went to Shannon and we had a very good briefing there. There is a sense from the petitioners that because of the way the system is set up, it is almost like a political three-card trick.

Technically, we can say we are neutral as a State but activists on the ground who have been watching the flights coming in and out of Shannon, and international observers, seem to think we cannot classify ourselves as neutral because of the nature of the flights coming through Shannon. That is what we are trying to tease out at some of the hearings we have been having, and I welcome the Minister's presentation today.

A number of issues were raised by the petitioner. I know the Minister is not responsible for the military flights that are landing but in terms of the civilian planes landing at a civilian airport next to military aircraft, which we know are carrying ammunition in some cases, as Minister with responsibility for the civilian element, is he concerned that Shannon could be seen as a target because of the military aircraft? Is there a danger to civilians who are unknowingly landing in the airport next to military aircraft? Could this put civilian passengers coming through what they would see as a civilian airport in danger in terms of the dual nature of the airport being used for both purposes?

I appreciate the Minister said he does not wish to comment extensively on neutrality but as a Cabinet member, he has collective responsibility for Government policy. Could he outline for us his understanding of the meaning of neutrality? Some of the petitioners and other people we have heard from believe that, technically, we might be neutral. Yet any independent observer who is seeing military troops coming through an airport, even unarmed soldiers because the guns are not loaded, would see them as a military force coming through an airport in a State we are being told is neutral. That is part of the argument being put forward.

The weapons are unloaded. What checks are done to make sure the weapons are unloaded? How do we know they are unloaded? That is a question that has been raised with us. Also, we know that in the aftermath of the 9/11 attacks some jurisdictions had a policy of putting agents on aircraft, air police as such, to police some of the flights. If an FBI agent is on a flight from the United States as an air policeman, has he or she got loaded weapons with him or her on those civilian flights?

Chairman

We will take those questions first and the Senator can come back in later.

Senator Trevor Ó Clochartaigh

I will come back in because I have a number of other questions.

Chairman

I do not want to have four or five questions put to the Minister. We will get a response first to the three questions asked. The Senator asked the Minister's view on neutrality-----

Senator Trevor Ó Clochartaigh

The dangers to civilians travelling through what is-----

Deputy Paschal Donohoe

I thank the Senator for his questions. He is correct that while I do not have a formal role for foreign policy in regard to neutrality, I am a member of the Cabinet and have collective responsibility regarding that matter. The two defining characteristics for me in regard to our neutrality are, first, our non-participation in military alliances. Second, I would interpret it as being the role we play, and have played, in terms of the values with regard to the rule of law and human rights. They are the two defining characteristics of our policy of neutrality.

As Minister of State with responsibility for European affairs, a role I held before I became Minister for Transport, Tourism and Sport, I saw in great detail the strategic value of that policy to our State because while I would justify it in terms of principles, it is the right policy for our country. It means also that we can bring value and a perspective to discussions on foreign policy matters. That is valuable and allows us to project our values and beliefs in what is currently a volatile and difficult world.

On the second question the Senator put to me about Shannon Airport, the security status of all our airports is monitored constantly. The security of our airports is primarily a matter for the Department of Justice and Equality and the Garda Síochána, but I am confident that matter is taken very seriously and that everything necessary is done to preserve the security status of our airports.

Senator Trevor Ó Clochartaigh

In terms of air police are travelling on a flight, we have been led to understand that, from time to time on US flights, FBI agents might act as air policemen or women. Do they carry hand guns and, if so, are they loaded or unloaded when they travel?

Deputy Paschal Donohoe

The answer to that question is "Yes". If somebody is travelling on board the plane whose job is to protect the plane, they can carry a weapon.

Senator Trevor Ó Clochartaigh

Would they be subject to permit as well, similar-----

Deputy Paschal Donohoe

No.

Senator Trevor Ó Clochartaigh

-----to the ones we discussed earlier? Are there statistics available on that?

Deputy Paschal Donohoe

It is specified in the order. I will come back to the Deputy on the availability of statistics on that point because most of the information I have here is on exemptions. It is defined in the order that somebody can carry a weapon if it is for the defence of the aeroplane.

Senator Trevor Ó Clochartaigh

In referring to Article 35 of the Chicago Convention, the Minister stated that no civil aircraft may carry munitions of war over a state without a state's permission. In terms of the granting of a permit, therefore, one could read that as meaning it is with the State's permission. Does that not contravene the idea of non-participation? Could people read it as meaning the state is participating and facilitating, therefore, does that not bring our neutrality into question in some people's eyes? Are we not playing with semantics and technicalities, as such? The petitioner's thoughts on this are that military flights have been seen coming in and flying on to the theatre of war in Afghanistan or Iraq, and people are being murdered as a result of them passing through Ireland. The sense of the people we have been listening to is that we are colluding in that by allowing that transition through Shannon.

Deputy Paschal Donohoe

My focus and the only role I play is in regard to civil aircraft. I am not wishing to dodge the question. I take the Senator's point that the civil aircraft we are referring to do carry military personnel. My main role in that area relates to safety concerns for the personnel and then for our country. However, we are getting into an area where we have a divergence of views in that I believe that the way I am operating that, with an exclusive focus on civil aircraft, is consistent with our policy of neutrality.

Senator Trevor Ó Clochartaigh

If I read this correctly the Minister does deal with the cargo aircraft that would come through the airport, which have non-military capacity etc. There are opinions that extraordinary rendition has been happening on aeroplanes that have passed through Shannon. From the point of view of the cargo aircraft coming through, how can the Minister and his officials be sure that extraordinary rendition has not happened on any of the cargo flights that have come through Shannon? How can he reassure the petitioner that is not happening on the Minister's watch?

Deputy Paschal Donohoe

It is because we have raised that matter directly with the US Government. It has given us an assurance that it is not happening. If any such evidence exists of it happening, it is a criminal matter and the Garda Síochána should be supplied with the evidence.

Senator Trevor Ó Clochartaigh

My understanding from the hearing is that a diplomatic note applies to the military aircraft. Is the Minister saying that a diplomatic note would apply to a cargo aircraft from the United States as well? Our understanding from the hearings we have had is that the diplomatic note almost turns the aircraft into a travelling embassy. I do not believe we were aware that was the situation as regards civilian or cargo aircraft. The Minister said that 19 requests have been turned down. What is the nature of that understanding between the Minister's Department and the Departments of Justice and Equality and Foreign Affairs and Trade?

Deputy Paschal Donohoe

I will come back to the Senator on the issue of cargo aircraft because I do not want to give an answer here that may mislead him in any way.

The reason for us turning down an exemption would be based either on advice we would get from another Department regarding foreign policy on the matter or a judgment that munitions or weapons are being carried in a way that is not consistent with our view of how an aeroplane should be kept safe.

Senator Trevor Ó Clochartaigh

How would the Minister know that with a cargo aircraft? How would he know that extraordinary rendition is not taking place? How is that policed from a civilian perspective?

Deputy Paschal Donohoe

I have already said that we raised this with the US Government and it has given us an assurance that it is not happening. The illegal detention of any person is, clearly, illegal.

It should not be happening and the Irish State would not be complicit in that in any way. The Government has raised this matter with the US Government and it has given assurances to us that this is not the case. As I have stated, if there is any evidence to the contrary it is a matter for the Garda Síochána and should be raised with the Garda and evidence should be supplied to it.

Deputy Michael P. Kitt

I welcome the Minister, who has mentioned the areas for which he is not responsible and on which he cannot comment in any detail, as regards foreign policy, neutrality, the role of the Garda Síochána and extraordinary rendition. Obviously, members are going around the houses a little here because there are other Ministers involved. This is a problem the joint committee must face when tackling this issue, as for example, Question Time today in the Dáil Chamber was with the Minister for Defence. As I understand it, the Minister only gets a copy of the application for information and his role again is limited.

On the exemptions the Minister mentioned, he stated there has been a reduction in exemptions since 2011 and referred to the withdrawal of US troops from Iraq and Afghanistan. I note the invasion of Iraq took place in 2003. Does this reduction mean it should be easier to conduct the checks to which Senator Ó Clochartaigh referred regarding questions of munitions, arms and whether guns are loaded or unloaded? In respect of the Department of Transport, Tourism and Sport, who precisely must take the lead role in this regard? People have given examples today of how members of the Garda would be able to stop a car if they suspected arms or drugs. Does anyone ask this question about what is passing through an airport? Given there may be fewer exemptions now, as the Minister has stated, could such checks be something the Department could do in a manner similar to what the Garda would do?

Deputy Paschal Donohoe

I thank the Deputy. As for his first question on whether, because there are fewer civil aircraft now coming through the airport, it would be easier to deploy an operation, the logical answer to that question is that because fewer aircraft were going through any kind of a check or mechanism, it would be covering a smaller number of aircraft than was the case in the past. As for my own role in this regard, I must emphasise again - I acknowledge this may be unsatisfactory to the committee - that I only have a role in respect of civil aircraft. I have no role with regard to military aircraft or aircraft used for any other purpose. I am purely focused on that point. As for the checking of assurances provided, I reiterate that the Government raises these matters with the US Government when an aircraft is coming through. The Government accepts the assurances given to it and if anybody has evidence to the contrary with regard to the breaking of those assurances, it is a matter then for the regulatory body or for the Garda Síochána to investigate it.

Deputy Michael P. Kitt

Does that actually happen?

Deputy Paschal Donohoe

In respect of rendition, I am not aware. There has been much expression of strong views on the matter. However, it is more of a matter for the Minister for Justice and Equality or the Minister for Foreign Affairs and Trade to comment on and to tell members whether such evidence has been offered to them.

Chairman

Before I call on Senator O'Keeffe, I have one or two questions. It is estimated that 2.3 million US soldiers came through Shannon Airport, the overwhelming majority of them so doing with exemptions or licences from the Department of Transport, Tourism and Sport. Throughout that period, they were travelling on civilian or chartered aircraft and all 2.3 million of them would have had sidearms and, one assumes, rifles, which the Minister has stated were unloaded. I refer to a scenario in another country in which persons on their way to a theatre of war stopped in someone's house. They were wearing full military clothes, clearly identified themselves as being involved in conflict and carried their weapons into the house. They were given dinner and sleeping quarters overnight but later on, when those in that household were being prosecuted by the relevant authorities, they argued that the weapons were unloaded. Although the members of that household did not check, they claimed they were assured by the visitors that the weapons were unloaded. Does the Minister think that would constitute a defence of the proposition that the household in question was neutral in that war?

Deputy Paschal Donohoe

That is a good and pointed analogy to put to me. However, there is a difference between the relationships between a household and families and that between two countries. We have raised this issue at diplomatic and political level with the US Government, which is the source of nearly all of the personnel to whom the Chairman refers. The American authorities have assured the Government clearly that the requests of the Irish Government are being implemented. It is the clear and strong understanding of the Government that the munitions with which it would be necessary to load these weapons are not on the aeroplane. Our understanding is the munitions are carried on a separate aeroplane most of the time. Consequently, where I would differ, in respect of the Chairman's analogy, is that we are not talking about relations between families or between communities but about relations between two countries.

Chairman

That brings me to my next question. I am as strong an advocate as anybody about the importance of the relationship between Ireland and the United States. We have umbilical ties extending back hundreds of years, as well as strong trade relations. Obviously, large numbers of Irish people are based in the United States and Irish companies employ 100,000 people in the United States, while American companies employ approximately the same number here in Ireland. Consequently, our relationships are very important. However, in respect of international law and our having declared ourselves to be a neutral country, the United States took part in a war on Iraq after the attacks on 11 September 2001 that was not sanctioned by the United Nations. It was an initiative the United States took with some other countries in its own right. Undoubtedly, large numbers of troops who were involved in that conflict passed through Ireland while on their way into Iraq. Many of them stayed overnight, had food and so on and were wearing military uniforms before continuing on their way.

I make the point that neutrality is precious to the Irish people. I refer to positive neutrality, which means taking part in United Nations peacekeeping missions or being involved in conflict resolution. For example, as we speak, we are involved in conflict resolution in the Basque country, Colombia and Sri Lanka. Third, in respect of foreign affairs, no country over the past ten years has given more to overseas aid, per head of capita, than have the Irish people. Therefore, we are involved in positive neutrality or that is how it is perceived. How does the approach of positive neutrality then marry with the fact that Ireland allowed in large numbers of US troops on their way to Iraq in an operation that was not sanctioned by the United Nations?

Deputy Paschal Donohoe

These are questions I am sure the Chairman will put to the Minister for Foreign Affairs and Trade. My role here pertains to the regulation of civil aircraft and the primary and indeed only role I have is as to whether those aircraft and the people on them are safe when they come into Irish airspace and when they land on Irish property. The Government has clear mechanisms in place in that regard in tandem with the Irish Aviation Authority, which also plays a role in that matter. In addition, the Department receives input from the Departments of Foreign Affairs and Trade and Defence, which we take on board when making the decision.

Chairman

The difficulty is that as the Minister has acknowledged, he is a member of the Cabinet, which has collective responsibility. The Minister's Department has sanctioned the overwhelming majority of licences that have allowed troops to pass through Shannon.

I must ask the Minister for his opinion on the matter in his capacity as a member of the Cabinet. It is not just a matter for him but also for all his predecessors. Does he believe-----

Deputy Paschal Donohoe

I have answered that question already. I strongly believe the way in which we regulate these matters is consistent with our neutrality.

Chairman

That is fair enough.

Senator Susan O'Keeffe

Does the Minister have sympathy at all with the petition? This is the petitions committee. Consider the conflict between the transportation of people to a theatre of war – that is the expression that has often been used – and our neutrality. Does the Minister not have some understanding – “understanding” is the wrong word because it would be an insult – but sympathy regarding the reason for the petition?

Deputy Paschal Donohoe

Yes, I do. I do not believe “understanding” is a pejorative word to use in this regard and I understand exactly where the Senator is coming from. This is an important matter that should be examined openly. This committee has a role to play in this regard. I will do my best to be answerable to the Senators and others concerned regarding areas within my responsibility. I will give an answer in regard to matters of collective responsibility, which I have just done in answering the question of the Chairman. I believe absolutely that this matter should be debated. I believe in the value of debate and am happy to participate in this as a Minister responsible for transport and member of the Cabinet.

Senator Susan O'Keeffe

The petitioners have suggested – I use the word “suggested” deliberately – that the European Parliament, Council of Europe and Amnesty International are among the bodies that have published reports that indicate rendition planes have landed at Shannon Airport. I completely understand the separation of responsibilities between the Department of Foreign Affairs and Trade and the Department of Transport, Tourism and Sport. A very specific observation has been made on what has happened. I refer to the original petition document. The Minister may not have the answer at this point because it may be more appropriate to the Department of Foreign Affairs and Trade. However, he may have come across it.

Deputy Paschal Donohoe

Yes. I am very much aware of the view that has been expressed and the investigation that has taken place into the claims. The information available to me is that the Council of Europe investigated various allegations in regard to secret prisons and extraordinary rendition. Regarding the 46 responses that were received in regard to this, Ireland's was one of nine deemed to be sufficiently comprehensive by the committee and that no additional information was required. Regarding the general matter of rendition, rendition is illegal. It is the illegal detention of a person. As I have said in response to the questions from Senator O’Keeffe’s fellow Senator, we have received assurances that it is not taking place in our territory.

Senator Susan O'Keeffe

Let us dwell on the idea of assurance for a moment. Is it part of the understanding between sovereign states that assurance is as far as it goes, and that it does not merit being followed by investigation? If another state were to seek assurance from Ireland over a certain matter and we gave it, would that be it? Citizens find the manner in which these diplomatic relations arise difficult to grasp.

Deputy Paschal Donohoe

The next step in the process is that if anybody has evidence that the grounds for assurance are ill-founded, it should be supplied to the Garda Síochána.

Senator Susan O'Keeffe

The argument made by the petitioners is that the burden on them to establish such proof would be quite enormous. Therefore, their argument centres on why we do not police the planes and search them on an ongoing basis. We do not do so because we accept the assurances given to us by the sovereign state that is the United States. Every time we debate this, it is asked why we do not search.

Deputy Paschal Donohoe

We are talking about a country with which we have strong and positive relations. It gives us assurance and we are entitled to accept that as a consequence of the relationship we have with it. If somebody has reasonable evidence that the assurance is ill-founded, it should be supplied to the relevant body. I could not be stronger in my condemnation of rendition. I have already described it as the illegal detention of an individual. If anybody has evidence that it has actually happened in our territory, it is a very serious matter, and the relevant information should be supplied to the Garda.

Senator Susan O'Keeffe

That is fair enough. Can I clarify a matter? The Minister said he would return to the matter of cargo planes. Are they currently classified as civilian as opposed to military?

Deputy Paschal Donohoe

Yes, that is correct.

Senator Susan O'Keeffe

Therefore, they are under the Minister’s remit.

Deputy Paschal Donohoe

Yes, they are. I will come back with an answer to the question asked of me earlier by the Senator.

Senator Susan O'Keeffe

Does the transportation of materials such as depleted uranium, heavy weapons or drones come under the category of cargo and is it, therefore, civilian in nature? Is it in the hard-military category? I do not know the answer.

Deputy Paschal Donohoe

If it is a civil aircraft, it is under my remit. If it is a military aircraft, it is not.

Senator Susan O'Keeffe

I get that. If cargo planes are classified as civilian and the cargo comprises depleted uranium, drones or heavy weapons, are they reclassified as military and, therefore, not under the Minister’s remit?

Deputy Paschal Donohoe

No, it does not. Perhaps I could state it differently. If it is a civil aircraft, it is my responsibility.

Senator Susan O'Keeffe

It follows that the Minister is responsible for what I have described, or for whatever might be in the plane.

Deputy Paschal Donohoe

If the cargo is on a civil aircraft.

Senator Susan O'Keeffe

I am just seeking clarification.

Deputy Paschal Donohoe

I am just trying to be clear in my response to the Senator’s question.

Senator Susan O'Keeffe

If anyone wanted to carry depleted uranium, for example, on a cargo plane classified as a civilian plane, he would have to seek authorisation from the Minister’s Department.

Deputy Paschal Donohoe

Yes.

Senator Susan O'Keeffe

Has anybody sought or been granted authorisation through the Minister’s Department for the carriage of depleted uranium, heavy weapons or drones? I am sorry it has taken so long to get to the end of my questions.

Deputy Paschal Donohoe

I am not aware of it. If it is the case, I will revert to the Senator. I am not aware of such permission having been sought.

Senator Susan O'Keeffe

As I understand it, there were 13 applications to transport munitions through Irish airspace refused in 2013 by the Department of Transport, Tourism and Sport. I cannot state this categorically but it is my clear understanding. I am open to correction. Was there a reason for the 13 refusals? Is it in the Minister’s capacity to answer that?

Deputy Paschal Donohoe

There would be two reasons. My understanding is that in 2014 there were 19 refusals. Permission was refused on the basis of the advice of the Department of Foreign Affairs and Trade.

If that refusal happened they were then required to reroute, so they were not allowed through Irish air space.

Regarding the rationale as to why that would be the case, the stated policy of the Department of Foreign Affairs and Trade is that it will not allow material or munitions to be carried through our air space that would be indiscriminate in nature and that would have a general effect were they to be used. On that basis, that is one of the main reasons for which such a refusal would be recommended.

Senator Susan O'Keeffe

So it is a discriminatory thing based on the type of weapon?

Deputy Paschal Donohoe

Yes.

Chairman

Can the Minister give us more information on what is meant by "indiscriminate in nature". We live in a world where there is an evolution of weaponry. Does the Minister have a list of what weaponry is acceptable or indiscriminate in nature?

Deputy Paschal Donohoe

I cannot give the Chairman an exact list of what that weaponry would be. The Department of Foreign Affairs and Trade defines policy in that area. If I can be of further help on that matter I will be, but it is a matter for which the Department of Foreign Affairs and Trade has primary responsibility.

Chairman

We are pursuing the same or similar information from the Department of Foreign Affairs and Trade, but I thought they might have provided the Minister with the information today.

Deputy Aengus Ó Snodaigh

I apologise for not being here earlier, but I was attending a Whips' meeting. Members of the committee might already have covered some of my questions. The Minister mentioned that exemptions were not given for 19 flights. Does he have any idea what the specific reasons were why those 19 were refused? What were the cargoes?

The Minister also referred to non-military planes which were open to inspection. Many of the planes we are talking about in this period were chartered on behalf of the US military or the US authorities. For instance, a lot of the flights involved in rendition were chartered by the CIA. The list has been provided and has been cross-referenced. Would the Garda or Department of Transport, Tourism and Sport personnel have been able to check them when they arrived in Ireland? If so, was that ever done? Is it open to our authorities to undertake random drug or other checks on any flight landing in Ireland?

Chairman

Can we take the Minister's reply to those questions first, and I will then let the Deputy back in?

Deputy Aengus Ó Snodaigh

Yes, that is fine.

Deputy Paschal Donohoe

As regards the rationale for the refusals I discussed with Senator O'Keeffe, they were all refused on the basis of advice we received from the Department of Foreign Affairs and Trade. As regards the nature of cargo aircraft, we would expect that the majority of them would be civil. I would have responsibility for them and my answers would apply thereto.

I touched on the inspection regimes earlier but as the Deputy was not here I will run through it quickly again. Article 16 of the Chicago Convention, which I referred to in my opening contribution, allows for the inspection of aircraft from other states. Authorised officers of the Minister or the Irish Aviation Authority do have the usual powers of inspection of all aircraft in Ireland for the purpose of ensuring compliance with the Air Navigation and Transportation Act.

As regards the nature of assurances we have received, I also went through this matter earlier. We have sought assurances from the US authorities, in particular, which is bringing civil aircraft through our State, that they are not doing anything that is not in compliance with Irish law. They have given us those assurances.

Deputy Aengus Ó Snodaigh

I will come back to the assurances in a second. The Minister got advice from the Department of Foreign Affairs and Trade on 19 flights, but what was that advice in each individual case? Is the Minister open to disclose it? Did it pertain to illegal weaponry and, if so, what was that weaponry? Or were there some other suspicions because obviously the advice was based on something?

Deputy Paschal Donohoe

That would involve the nature of the suspected munitions that were on it and whether they are discriminate or indiscriminate. I have done my best to give the definition of what "indiscriminate" is. The Chairman has, fairly, asked for more on that. As I said, however, that definition is a matter for the Department of Foreign Affairs and Trade.

Deputy Aengus Ó Snodaigh

I understand that and hopefully the Minister will also be able to share with us the advice from the Department of Foreign Affairs and Trade. In some ways, there is a gentleman's agreement involving assurances from America, Russia or elsewhere. However, the fact that the Minister ended up having to refuse 19 flights means that they were chancing their arm somewhat.

If a gentleman's agreement exists concerning our air space, it is not always complied with on flights that do not necessarily land in Shannon or elsewhere. From tracking back through the whole history of the Iraq war, and before, we know that our air space was violated in that way. In addition, our territorial waters were violated by British submarines to the detriment of some people's boats. So much for assurances but they do not always stand up. People might remember Colonel Oliver North who abused the system, as did the Israelis, by using Irish passports.

How can such assurances stack up if they were blatantly breached? The Minister said that if there was evidence, it should be produced. In order to get evidence, however, one must search something. That was always the contradiction because if we do not have the power to search them, who will do it?

There is one group that has highlighted evidence that Irish air space and Shannon Airport were used for rendition flights. Amnesty International has stated that detainees specifically said they passed through Irish airports. Has that claim been fully investigated by the Department of Transport, Tourism and Sport?

Deputy Paschal Donohoe

The Deputy referred to the fact that we turned down 19 applications. I would see it slightly differently to him because the fact that 19 were turned down is evidence that we do take that responsibility seriously. We look at broad considerations in this respect. We have an input from the Department of Foreign Affairs and Trade, which is important in our deliberations. In addition, my own primary objective is the safety of aircraft when in Irish air space and our jurisdiction generally.

The Deputy asked whether investigations have taken place concerning allegations of extraordinary rendition. As an example, we have participated in such investigations that took place at the Council of Europe.

As I stated, this is one of nine countries the participation of which was deemed to be sufficient and adequate. If anybody has reasonable evidence that these assurances are being broken in any way, such information should be supplied to the Garda.

I will return to the point with which I began - last year we turned down 19 applications for the use of civil aircraft in Irish airspace.

Chairman

I call Deputy Richard Boyd Barrett.

Deputy Richard Boyd Barrett

How long do I have?

Chairman

As long as the Deputy needs.

Deputy Richard Boyd Barrett

The Chairman is giving me licence.

Deputy Paschal Donohoe

I am by no means seeking to cut off the Deputy and will do my best to answer all of his questions, but I have an engagement at 5.30 p.m. I do not mean to be disrespectful to the committee.

Deputy Seamus Kirk

I suppose those members who are not as long-winded will not be allowed to speak first.

Chairman

As it is now 5.10 p.m., we have approximately 15 minutes left.

Deputy Paschal Donohoe

I would describe Deputy Richard Boyd Barrett as many things but never long-winded.

Deputy Richard Boyd Barrett

I thank the Minister. I wish to follow up on his understanding of neutrality. He has stated this is a foreign policy matter, but it has been put to him that he is part of the Cabinet and that, therefore, there is collective responsibility. In so far as he must adjudicate on the civil safety and security aspects of any application made for the use of civilian airports, in doing so he must also make a certain judgment on what the potential security risk might be and, consequently, not only consider whether he believes a flight would accord with neutrality but also how others who might be security threats might consider it. In deciding whether it is safe to use Shannon Airport, he must consider whether others might consider it a target. It seems it is part of his remit to consider whether it would be in danger for whatever reason, even if he thinks it is all fine in terms of neutrality, as others might not perceive it as such, including those who might want to target the US military in some way. The sheer scale of the numbers of US troops and munitions, in some cases dangerous munitions, which pass through Shannon Airport, particularly in the context of the Iraq and Afghan wars, massively outstrips any other licence or exemption given by the Minister to any other country and means that any outside observer is likely to see us as participating, given that it involves disproportionately US weaponry and US personnel in their millions heading into the theatre of war. Is it not reasonable to be concerned that others might think that, no matter what we may say, we are participating and that consequently Shannon Airport is at risk?

The Chairman took certain thoughts from my mind because I was going to use the exact same analogy in terms of somebody coming into a house. I will extend this analogy. Let us say a very good friend of the Minister's, whom he has known for years and trusts and with whom he has very good relations, drops in and states he has guns in the car and is on the way to take out somebody whom he believes is a terrorist. He then states he does not have bombs in the car but has stashed them outside the Minister's property. The Minister would not let this person into the house no matter how well he knew him and how well he trusted him because he would consider it to be participation or support for the action about to be taken. Any reasonable person would say it would amount to participation. If anybody involved in a criminal investigation - if it was not about military issues - was to question the Minister subsequently were he to allow it to happen, he would be considered to be complicit in the conduct of a crime. Is that not the case and is it not how any reasonable outside observer would look at it?

Deputy Paschal Donohoe

On whether the passing through of US troops makes Ireland or its airports a terrorist target, that is not the way in which a decision is framed on aviation security. When the Department is making a decision on an exemption, it considers what would be on the aeroplane and what could be the level of interaction with anybody on it. The political response or the potential violent response of others to a decision which might be taken is a foreign and security policy matter. It is a matter for the Department of Justice and Equality which takes all such matters very seriously. It constantly monitors the security of airports, as I am aware.

On the analogy used by the Deputy, I am very wary of getting involved in the use of analogies because a fundamental point of difference-----

Deputy Richard Boyd Barrett

The Taoiseach uses them quite a lot.

Deputy Paschal Donohoe

I can only speak about how I communicate because I must respond in a way over which I will be able to stand. There is a fundamental difference between the analogy that the Deputy drew and the relationships between sovereign states. They are governed by international law. There is also the willingness of this country to accept legitimate assurances from another country on activities we would not allow in our territory. However, if I were to very briefly participate in the use of the Deputy's analogy, if such a thing were to happen to me, of course, I would report it to An Garda Síochána. This is where I come back to the point made by Deputy Aengus Ó Snodaigh and others on how we rely on and respond to assurances. If anybody believes the commitments we have been given have been broken, he or she needs to supply the evidence and the matter will be taken up by the Garda.

Deputy Richard Boyd Barrett

Given what the Minister has just said, I will move on to specific issues with regard to the 19 applications he turned down. I want to burrow into this issue a little. The Minister must have had some suspicions. He states we do not search aeroplanes, but for some reason he refused these 19 applications. What he seems to be saying is that generally the reason applications are refused is aeroplanes would be carrying indiscriminate weapons. As opposed to personal guns or rifles which are unloaded, apparently, such aeroplanes would possibly be carrying indiscriminate weapons such as cluster bombs and missiles. For some reason, the authorities, the Department or whoever assessed the risk of what might be carried on board, decided the particular flights might be carrying these things. On what basis did the Minister come to this conclusion? I share his concern, but I wonder why he suspected and refused 19 applications and does not equally suspect all of the others in respect of which he grants permission without having some evidence as to why he singled out these 19 applications.

Deputy Paschal Donohoe

The reason is that the cargo list must provide information on what is on an aeroplane. The short answer to the Deputy's question is that the information is given to us on a cargo list, making it visible to the State. The 19 refusals to which I referred - that is the number according to the most recent information for last year - were made on the basis of the input we had received from the Department of Foreign Affairs and Trade. A number of reasons could lead to such a recommendation, the first of which is the indiscriminate nature of the munitions. The Chairman has quizzed me on that matter, but the Department of Foreign Affairs and Trade can revert to the committee on it. Other issues could be considered, for example, the origins of a flight, to where it would be flying, the international climate at the time and so on. The specific reason for refusing the 19 flights was the visibility on their cargo lists of what would be carried on the aeroplanes.

Deputy Richard Boyd Barrett

If 2.3 million US troops passed through Shannon Airport, representing the bulk of those who went to Iraq and Afghanistan, because it was the easiest route for them to take, as the Minister rightly pointed out, does it not stretch credibility to believe their weapons and munitions took a longer route around Irish airspace?

Deputy Paschal Donohoe

I did not suggest that. I said they could have been carried on another flight, but they could also have been contained securely in the hold of the aeroplane or on a military flight passing through our jurisdiction, in which respect I play no role.

Deputy Richard Boyd Barrett

We must ask the Minister for Foreign Affairs and Trade about that matter.

Deputy Paschal Donohoe

It is a reasonable stance to take. I am at this meeting to be held accountable for the areas in which I have competence and respond on matters for which I have collective responsibility. The key point is that we turned down a number of requests for exemptions and I have outlined why. The input received from the Department of Foreign Affairs and Trade was important. However, I am responsible for matters of aviation and the security of same. It is on this basis that I have attempted to update the committee.

Deputy Richard Boyd Barrett

Do the diplomatic notes to which the Minister refers apply to civil flights?

Deputy Paschal Donohoe

No.

Chairman

When we visited Shannon Airport, we were told a diplomatic note was required for military aircraft. For civil and chartered aircraft, guidance would be sought. The US Department of Defense would notify the Minister's Department that there would be X amount of troops on an aeroplane and so on and he would then seek guidance from the Department of Foreign Affairs and Trade on the matter. In respect of military aircraft, there is a diplomatic note from the Department of Foreign Affairs and Trade and these aircraft pass through automatically. If I am wrong on that point-----

Deputy Richard Boyd Barrett

Regarding military aircraft, it is given by the Americans to the Department of Foreign Affairs and Trade.

Chairman

The Department of Foreign Affairs and Trade issues the diplomatic note. The gardaí whom we met at Shannon Airport told us that they compared a military aircraft with a diplomatic note to an embassy. Once a diplomatic note had been issued, as far as they were concerned, they had no jurisdiction, unless someone could prove with a degree of evidence that a crime was happening which, of course, they would have to investigate. That is what we were led to understand was the distinction.

Deputy Richard Boyd Barrett

To obtain clarity, as it is all rather confusing, what are the assurances? We do not have diplomatic note assurances in respect of civil aircraft, or do we?

Deputy Paschal Donohoe

I am sorry, but I have got mixed up between the different points being made. Would the Deputy mind putting his question again?

Deputy Richard Boyd Barrett

If I understand the situation correctly, we receive diplomatic notes in respect of military aircraft-----

Deputy Paschal Donohoe

Yes.

Deputy Richard Boyd Barrett

-----with assurances that they are not breaking the rules and that tell us what is or is not on an aircraft. Are we receiving the same assurances and diplomatic notes in respect of civil aircraft?

Deputy Paschal Donohoe

No, we do not receive diplomatic notes in respect of civil aircraft.

Deputy Richard Boyd Barrett

Then what assurances are we receiving that we are being told the truth?

Deputy Paschal Donohoe

For each flight, the haulier - the flight company - supplies information to us. It is on that basis that we make a decision on civil aircraft. In the case of each of the 19 refusals, we received a list of the material or cargo that would be on board. Based on this information, a decision was made by my Department on the matter.

Deputy Richard Boyd Barrett

We are relying, not on a sovereign state, but on a private company to give us accurate information on whether there would be munitions or loaded weapons aboard.

Deputy Paschal Donohoe

The flight company must give us an account of what would be on an aeroplane. We make a decision on that basis.

Deputy Richard Boyd Barrett

A private company.

Deputy Paschal Donohoe

Yes, but it must still be consistent with international law. It must tell us what would be on an aeroplane.

Deputy Richard Boyd Barrett

This seems to be important. It is being asserted that we are receiving solemn assurances from a sovereign state, namely, the United States. We should not be, but we do. It is a high level assurance. Now we are referring to assurances from private companies. Would we accept such assurances in any other arena without performing checks to ensure compliance?

Deputy Paschal Donohoe

I understand the Deputy's point, but my opinion on the matter differs because the assurances received from America cover all of the various aeroplanes it uses. Consider the allegation of extraordinary rendition that was put to me. The American Government has given us assurances that that is not taking place in the State. These assurances cover the various aircraft which pass through the jurisdiction.

Chairman

If the Minister does not mind, we are nearing the close. I will allow Deputy Richard Boyd Barrett to ask a final question. He will be followed by Deputy Seamus Kirk who has been waiting patiently.

Deputy Paschal Donohoe

Of course.

Deputy Richard Boyd Barrett

I have covered most of the ground I wish to cover. When dealing with these matters, is there a different regime for the United States than for other states?

Deputy Paschal Donohoe

No. I am discussing civil aircraft because that is the area for which I have responsibility. We follow our procedures in the case of all states.

Deputy Richard Boyd Barrett

I am trying to think of an example. If Cuban, Russian or Israeli flights were to pass through, would we apply the same regime in accepting assurances?

Deputy Paschal Donohoe

The variety of countries involved is the very reason we consult the Department of Foreign Affairs and Trade. As Minister for Transport, Tourism and Sport, it is not for me to adjudicate on a particular country. That is why we have a mechanism in place to get the input of the Department of Foreign Affairs and Trade.

Deputy Seamus Kirk

I will be brief, as I am conscious that the Minister will soon be on his way. I have three short questions.

Reference was made to the transportation of spent uranium.

Has spent uranium ever been transported through Shannon Airport or any of our airports?

Deputy Paschal Donohoe

I do not know.

Deputy Seamus Kirk

The Minister might respond to that question at a later date.

Second, in regard to the flights under discussion, what is the average percentage number of flights annually through Shannon Airport? Third, how many people are employed in the aviation sector generally at Shannon Airport?

Deputy Paschal Donohoe

I will come back to the Deputy on another occasion regarding his question about spent uranium.

In response to the second question, in 2014 Shannon Airport handled 55,952 US military personnel on passenger transit flights, a decrease of more than 80% on the peak number. This traffic represents approximately 4% of the total number of passengers through the airport.

Deputy Seamus Kirk

Does the Minister have a response to my third question? If not, he might forward me the information.

Deputy Paschal Donohoe

I can obtain it for the Deputy. I imagine there are a few hundred personnel in that sector.

Chairman

When we met the management of the Shannon Airport Authority, it was at pains to point out that the overall percentage of US military personnel aircraft passing through Shannon Airport was low. This is confirmed by the Minister's last statement that the percentage of such traffic is approximately 4% of the airport's overall business.

I understand the Minister has another commitment. I thank him and his officials for attending the meeting and remaining with us beyond time.

The joint committee adjourned at 5.35 p.m. until 4 p.m. on Wednesday, 25 February 2015.