Pat Gallagher (Donegal South West, Fianna Fail)

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.

See this speech in context