Michael D Higgins (Galway West, Labour)

Tá áthas orm go bhfuil seans agam cúpla focal a rá ar an ábhar tábhachtach seo. I begin by making a point about the process in which we are involved. When I raised this issue this morning, I mentioned the unsatisfactory nature of the manner in which it is coming before us. I do not mean to impugn the Minister or any civil servant, but it is illustrative of something far more serious and which will become a matter of acute debate between now and next year, when we may be debating a European reform treaty. This is the issue of the serious absence of accountability on European matters as far as the Oireachtas is concerned. As I have limited time to speak, I will do so by way of illustration.

Such information as is provided by the European Parliament on matters such as this is provided on a purely informational basis. As these matters are intergovernmental, parliaments have no power of amendment initiation or change except in the case of the histories to which the Minister referred, where reference is made to the European Court of Justice striking down a Council decision. The Minister assumes intergovernmental matters will come back to the parliament involved, but this is precisely where there is a glaring absence of accountability. The Chairman of the Joint Committee on European Affairs can share information, usually on an ex post facto basis, but no other member of the committee can do so. There is no consultation with the Joint Committee on Foreign Affairs.

In his opening speech, the Minister referred to Article 29 of the Constitution. There are three references in the Constitution to the role of the Oireachtas in foreign affairs, one of which relates to the declaration of war. Article 29 refers to any agreement that involves a charge, which is what arises here. Article 29 is not honoured by the arrangements in place in this regard.

There is no access to the intergovernmental negotiations or process. The most glaring example of this, which is regarded internationally as one of the most disgraceful conclusions of the European Union, is the Hamas decision of 2003. In the absence of parliamentary scrutiny, COREPER, the committee of permanent representatives to the EU, devolved to an ad hoc committee of civil servants, which became known as the "clearing house", the preparation for the proscription of Hamas as an organisation, without reference to any of the parliamentary accountability mechanisms of the European Union. That decision had disastrous consequences and laid the seed for a further decision relating to the February 2006 elections in Palestine, which were described by Jimmy Carter as the cleanest, fairest and most representative one could see. The EU, however, issued a bland statement noting the elections but not accepting the results.

There is no accountability to the Oireachtas from the Common Foreign and Security Policy and developing areas of European security policy. The question arises fundamentally as to what has been devolved constitutionally, in accordance with Article 29, from Parliament to the Executive and what right has the latter to operate in a blind way as far as Parliament is concerned.

The Minister's speech is proof of what I am saying. In regard to the evolution of the motion, he suggests how it came so late before us:

On 27 June the US authorities and the European Commission, acting on a mandate agreed by the member states of the European Union, completed their negotiations on a new long-term agreement on the processing and transfer of PNR data by air carriers to the US authorities. The agreement was considered by the EU Committee of Permanent Representatives on 29 June and it is proposed that it will be submitted to the Council for approval on 10 July. The new agreement which will provide a long-term solution for the processing and transfer of PNR data will be valid for seven years. It will ensure legal certainty for a considerable period.

This statement is an indictment of an unaccountable process that devalues parliament. I am in the course of research that looks at similar conditions in other parliaments in Europe. It is a matter of deepest concern to parliamentarians.

In regard to legal certainty, the Minister went on to say:

Agreement was also reached on an exchange of letters between the United States and the European Union. The US letter gives details of how the US Department of Homeland Security handles the collection, use and storage of PNR data received from air carriers, referred to in the letter as "assurances".

This raises the fundamental question of the relationship of such an assurance to the guarantee in European law in privacy terms to European citizens. When we look at the history of the first agreement which came into existence in 2004 up to the moment of the hearing of the European Court of Justice and the interim agreement that followed, what one is seeking in many cases is a certainty of guarantee that would, as I and every Member would wish, allow people to travel in the maximum conditions of security but without sacrifice of any of the certainties in regard to the use or abuse of data that has been gathered.

We have received this text very late and attached to it are the two letters that have been exchanged. However, it is far short of a guarantee and in that sense some questions arise regarding those who speak and negotiate on our behalf. I am not imputing malevolence on the part of any Minister when I use the matter to illustrate a problem that is going to be amplified. Can one imagine how much more difficult it will be if, following the acceptance of a form of European treaty no longer called a constitution and where the rights may not be central and embedded in the treaty itself, the post of European Foreign Minister is established? At the moment it is not clear whether a shred of accountability is attached to the activities or statements of the existing spokesperson for the common position, whose bureaucracy is merged with that of the Council. I say this as somebody who is pro-Europe but wants the EU to be based on guarantees of rights.

I take with a grain of salt the suggestion that the criteria on which the United States Department of Homeland Security and the European Union operate are similar. They are not and anyone who reads the literature on the activities of the former will be aware that a plethora of abuses of information and human rights has been declared in the courts of the United States. Far more is needed in this matter than an exchange of letters.

I would like us to use the matter as a case study in accountability and to push it back so that the House can debate that which is delegated to the Executive and that which is retained in Parliament. If we do not do so, I can imagine an atmosphere in which we would want to discuss a future European treaty as one that would correctly be full of unanswered questions. I hope we learn from this, and all one can do is hope rather than be certain that the assurances given in an exchange of letters might in some way be judged by their consequences to have the character of a guarantee.

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