Róisín Shortall (Dublin North West, Labour)

I reiterate a number of the points made by Deputy Mitchell in respect of the manner in which the Government has handled this matter. I accept it is not entirely the Government's fault in so far as the EU was late in agreeing this and details of the agreement, such as we have them, only emerged in the past couple of days.

In October last when we debated the interim agreement Members on both sides of the House raised concerns about some of its provisions, principally that there was no clear mechanism proposed for monitoring of it. Various assurances were given and safeguards referred to, but there was no mechanism to ensure that those safeguards were put in place and adhered to. Overall, that is my biggest concern with this final agreement.

I am not suggesting for one moment that it was easy from an EU point of view to come to agreement on this. Essentially, the US was dictating what the EU could do in terms of air travel and in many ways, metaphorically, was holding a gun to the head of the EU on what it could accept and reject. At the end of the day the position adopted by the US was that unless the EU accepted its terms, European airlines would not be permitted to fly into the United States. That was obviously an unthinkable outcome for any European country but it raises the issue of what power the EU has in the context of negotiations with the US and whether we must accept, as we seem to have done on this occasion, that the EU is powerless to stand up to the US in terms of it stating the conditions under which people can enter that country.

We cannot argue with that at the end of the day, but there is an issue regarding some of the principles of the right to privacy held dear in this country and throughout the EU and it is not clear that those rights, or the principles in respect of personal liberty and the right to privacy on which the EU was founded, are being respected in this. It may be that such is the way it must be, but there is no indication that these principles were fought for or that any attempt was made to persuade the US to recognise the principles of individual freedoms which the EU espouses.

We do not know the background to this. In many ways it was sprung on us last night. The same occurred in October last with the interim agreement and the following points were made, that this is not the right way to do business, we should have been given notice and we should have been given more information and more time to consider it. All those points were made during the debate and an appeal was made to the Minister that the next time around, when it came to the final agreement, time would be allowed. Certainly, the point was made to the then Minister that he should use his influence at EU level to ensure that there were early negotiations in respect of the next agreement, that every effort should be made to finalise those negotiations in the early part of this year and that we in Ireland would be given adequate notice to consider the terms of the agreement.

Unfortunately, that has not happened and we now find ourselves in exactly the same position in which we were in October last, getting a telephone call at night informing us that there will be a debate the following day. That is not an acceptable way to do parliamentary business. I got a telephone call last night to tell me that we had got an e-mail containing a short briefing document on this that tells us very little and today there was one copy of the agreement in the Library which had to be photocopied for Members who requested it. The time allowed was completely inadequate for Members to give the matter a proper reading, let alone consideration. Given the day that is in it, with a transport Bill before the House all day long, the two main spokespersons were not in a position to read this matter and it was not a satisfactory way of dealing with it. I register the concern of the Labour Party in that regard.

The briefing document states that the number of PNR items to be collected has been reduced from 34 to 19. Will the Minister give us more information on that? In his speech, he did not do so. Will he clarify what that means? What are the 19 items of data that are included?

The document also refers to the deletion of references to the undertakings which had been part of the existing interim agreement and their replacement by an exchange of letters between the EU and the US outlining how the Department of Homeland Security will collect, use and store PNR data. When one tries to find out what that means, we are told that it has been covered by a letter from the Department of Homeland Security. No information is provided on it. Can it be accessed or can the information be relayed? Is it all on the basis of a covert exchange of letters between the US and the EU? The citizen is left with little information in respect of agreements that have potentially major implications for personal freedom.

Another provision refers to the increase in the retention period for data from three and a half years to seven years on active status. There is no indication of the reason. Is there a rationale for holding information for this long? Holding information for three and a half years has been debated at length. The increase of eight years for data in dormant status brings to 15 years the period for which data can be held on an individual who travels in or out of the US. This seems an excessive period and no justification is provided.

The Minister referred to sensitive data concerning ethnic origin, religious beliefs etc. This will be filtered and deleted by the Department of Homeland Security unless required in exceptional cases, where the life of a data subject or others could be imperilled. Who will decide if a person's life or many people's lives are imperilled? Who decides if it is justifiable to hold information for the additional period? What agreements or procedures are in place to monitor the terms of the agreement? On what are the Minister's assurances based? EU statements seek to provide assurances and guarantees but these are only comforting sounds. Who will monitor the operation of the agreement and ensure the US adheres to the terms of the agreement? From what I have read there is no monitoring mechanism. I would like the Minister to prove me wrong but I can find no evidence of proper monitoring and accountability in respect of important and sensitive data.

It is not only the Opposition that raises these concerns. The House of Lords set up a committee to examine concerns about passenger name record agreements and highlighted a number of concerns. The interim passenger name record agreement does not achieve the standard citizens have a right to expect. The agreement goes beyond what is needed for the fight against terrorism. The report of the committee states:

"The Committee state that the new PNR agreement being negotiated with the US must include clear and unambiguous undertakings about the collection, use and retention of data. The US must not be allowed to amend the undertakings unilaterally".

Can the Minister provide the assurances that I cannot find?

The House of Lords committee further stated:

The Committee believe that the new agreement must be no more invasive of individual liberty than is strictly necessary for counter-terrorism. This is vital if public confidence in the system is to be maintained. Other recommendations the Committee make include:

Airlines must inform passengers about what happens to their personal information: who receives it, and under what conditions.

The agreement must include a full list of the data allowed to be collected. This must not include open-ended data elements like 'general remarks'. Data must not be passed to bodies not dealing with counter-terrorism unless this is essential, and only if the same safeguards are maintained. There must be annual reviews of the working of the agreement.

Is an obligation on informing passengers about their personal information included in the interim agreement? It does not seem to be. Is there any right of access to information held about an individual passenger? We are told that information will be carefully stored and passed on only if necessary but what safeguards are there? Who will oversee the process and what assurances have been given on adequate safeguards? I see no reference in the agreement to annual reviews.

A letter, dated 27 June, from the European Data Protection Supervisor is even more important than the views of the House of Lords committee. The contents are a matter of grave concern. The supervisor states:

It is my role as EDPS to ensure that data protection rights are respected in all policies of the EU. As such I am writing to inform you that if the final agreement with the USA is similar to that which has been reported, then I believe that European data protection rights will be at risk.

The main areas of concern are the extension passenger data are:

The extension of the time that passenger data are kept — effectively from 3.5 to 15 years in all cases — introducing a concept of "dormant" data, that is without legal precedent;

Data on EU citizens will be readily accessible to a broad range of US agencies and there is no limitation to what US authorities are allowed to do with the data;

The absence of a robust legal mechanism that enables EU citizens to challenge misuse of their personal information;

The US wants to avoid a binding agreement by exchange of letters.

If a person believes that personal data has been misused, what redress is available? It seems there is none. The European Data Protection Supervisor raised the last point as a matter of grave concern. The detail of the agreement is contained in letters that were exchanged but they are not available to public scrutiny.

The letter continues:

EU citizens expect the EU institutions to protect every right laid down in the European Charter of Fundamental Rights. If the EU does not lead the way in developing the importance of fundamental rights, including the protection of personal data, how can we expect the rest of the world to follow? It is for this reason that I write to express my concern because I have serious doubts whether the outcome of these negotiations will be fully compatible with European fundamental rights, which both the Council and the Commission have stated are non-negotiable.

Is the Minister in a position to give us those assurances tonight? Unfortunately, I do not think he is, and for that reason we have no choice but to be highly sceptical of this agreement.

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