Róisín Shortall (Dublin North West, Labour)

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.

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