Michael D Higgins (Galway West, Labour)

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.

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