Tuesday, 30 June 2009
Dáil Eireann Debate
This amendment deals with the concerns expressed in the Seanad about the possession of weapons by American preclearance officers. My amendment specifically states, “A preclearance officer may not be in possession of a firearm or offensive weapon or any other article or thing specified by the Minister”. While I welcome the tenor of amendment No. 3, the Minister for Transport’s proposal does not cover every possible type of weapon which a preclearance officer may possess.
During our debate on Second Stage, issues were raised regarding immunity for preclearance officers. An unusual situation will pertain under section 5 in that people with diplomatic immunity will possess extensive and almost police-like powers. That is why I asked the Minister what information we will be given regarding officials and the procedures they will follow. Will the Dublin Airport Authority and the Garda be given detailed briefings on the kind of resources available to them?
The Minister stated that he met Janet Napolitano yesterday. Anybody who has been to the United States since 11 September 2001 will be aware of the changes that have taken place. People are now becoming used to web clearance procedures. In this context, I feel the Minister should clearly provide that weapons are not acceptable. Amendment No. 3 provides for this through a negative construction by stating, “Nothing in this Act shall be construed as permitting a preclearance officer to be in possession of a weapon”.
It is important that we be given information on the personnel and the resources they will have under section 5. According to the briefing which departmental officials helpfully supplied, it appears the Canadian authorities have invigilated this matter in a stricter manner than the Bill before us.
The Minister might consider reviewing the legislation on a five year basis. I am unsure of the rules in that regard, although we have come up with amendments on the spot when debating other Bills. It would be useful to review every aspect of the Bill, including the core economic goal of boosting Shannon through the operation of this agreement. I take the points made by my Fine Gael colleagues regarding cargo preclearance.
Minister for Transport (Deputy Noel Dempsey): I thank Deputy Broughan for his amendment, which is based on a discussion we held in the Seanad. His colleague in that House wanted increased clarity on the matter but accepted my explanation that the amendment he tabled in this regard would probably cause further difficulties.
In accordance with the agreement, preclearance officers will not be allowed to carry any weapon in the preclearance areas. The use of weapons by preclearance officers was clearly rejected by the Irish negotiating team. This position was upheld by the intergovernmental agreement. Let there be no doubt that security within the preclearance area will be provided by the Garda, as is the case in every other part of the State, and that Irish law will apply.
It was argued in the Seanad that US officers should be explicitly prohibited from possessing weapons in the course of exercising any function under the Bill and I agreed to consider the matter further. In this context, amendment No. 3 provides that preclearance officers will not be permitted to possess weapons in the performance of their duties under the Bill. According to the legal advice I have received, this is the most appropriate manner in which to address the issues raised by Deputy Broughan.
Under section 1, “weapon” is defined as “a firearm within the meaning of the Firearms Acts 1925 to 2007, or a knife within the meaning of section 9(1) of the Firearms and Offensive Weapons Act 1990, or a weapon of offence within the meaning of section 10(2) of that Act.” That should address the concerns raised by the Deputy.
The immunity to which he referred is not diplomatic. The immunity provision in the agreement applies only to United States Customs and Border Protection officers in respect of the performance of their duties. The agreement also allows us to request the removal of an officer who abuses his or her position. However, it is not the same as diplomatic immunity. I ask the Deputy to accept the advice I have received on this, which is that the spirit and intent of his amendment is met by the Government amendment.
Deputy Thomas P. Broughan: The Minister has made an interesting point about the kind of immunity involved but what kind of information will we have on this staff? For example, Shannon and Dublin Airports both have strict guidelines and one must obtain special passes to access the apron. In recent months, when we visited SR Technics we went through that procedure, and rightly so, in order to set foot in that sensitive area. What kind of general knowledge will we have about the personnel involved and how will they carry out the operation?
Deputy Noel Dempsey: The people we will be dealing with are law enforcement officers. They are not Irish law enforcement officers but they are law enforcement officers in American terms. From the US side, they will have been checked and cleared for security purposes. Obviously, they are here for a specific purpose, which is to ensure that people do not board planes bound for the United States who should not get on them. Therefore, there will be a high level of checking from the US viewpoint. All the security issues at the airport that the Deputy raised, including the necessary clearances, will apply to these officers as they apply to airport staff generally. They are not immune from that, although they are immune from legal cases in the performance of their duties providing they do so with due care and diligence. Immunity does not mean that they will saunter around the airport in places that are not preclearance areas. The matter is secure from that point of view.
There was a discussion about this in the Seanad where the Minister gave a specific assurance. He felt the US officials should not have the power to do any kind of strip search. When we re-examine the Bill, however, we do not see that this is specifically banned in the Bill. The amendment defines the search process more clearly by stating that preclearance officers should not be allowed to strip search passengers going through. Gardaí obviously have that power but the US officials should not. Section 5(1)(e) states that a preclearance officer may:
It seems that the Minister has not specified sufficiently clearly that a strip search power does not apply to these officers. With the help of colleagues, I was glancing at some good information on the Canadian system. The Canadians specifically state that a frisk search can be applied in certain circumstances. We are all used to the kind of basic search everyone gets in the line going through to airport aprons before boarding aircraft at Shannon, Dublin and elsewhere. The Minister should have specified this clearly, however. That point was made by my colleague, Senator Brendan Ryan, and other Senators during the debate in the Upper House. We would like that provision to be included in the Bill as per subsection (3) in the amendment.
Deputy Noel Dempsey: If the Deputy looks at the Bill he will see that we are talking about two different subsections, (1)(d) and (e). As a general point, Irish law enforcement officers in the preclearance agreement have extensive powers of search, which are provided for in section 6. Under section 5(1)(d), the search is at all times subject to the consent of the traveller concerned. Section 5(1)(d) states that a preclearance officer may:
That is a specific condition, therefore, when the traveller gives consent. Section 5(1)(e) refers to when the traveller does not give consent. That is where the officer does not require the consent of the traveller, and that power can only be exercised in circumstances where the preclearance officer reasonably suspects that the person is in possession of a weapon or otherwise poses an immediate threat to the safety of the officers or other individuals in the preclearance area. In this regard it should be recalled that before any traveller enters the preclearance area, he or she will have cleared the airport passenger screening system and will have been screened for weapons and explosives. It can be assumed, therefore, that the power referred to under section 5(1)(e) is unlikely ever to be required in practice. That is the reality of it.
The amendment would provide that a search carried out by a preclearance officer under subsections 1(d) or (e) would not involve the removal of clothing “other than headgear or a coat, jacket, glove or similar article of clothing”. If those are the only articles of clothing involved, the strip search scenario which the Deputy is worried about, by its very definition, would not happen. Only outer clothing would be removed.
Both in the case of the consent search as well as the non-consent search I mentioned, the agreement we have reached with the United States provides for a pat down search as well as what is termed a partial bodily search. We are all familiar with the concept of a pat down search, which is carried out routinely at security screenings points in airports everywhere.
A partial body search is a more thorough search which might follow a pat down search. It involves the traveller removing items of clothing covering a particular area where the officer suspects that contraband is concealed. This partial search is always a targeted search. For example, if a bulge is detected on a person’s abdomen during the course of the pat down search, the subsequent partial body search will target that area. Consequently, that type of search may involve the removal of clothing other than headgear, a coat, jacket, glove, or similar article of clothing. It should be recalled that, like the pat down search, the power to carry out the partial body search is subject to the consent of the individual concerned. The individual can withdraw that particular consent.
As it is proposed, the amendment would curtail the powers of preclearance officers and make it difficult, if not impossible, for them to carry out their preclearance functions. In addition, it would result in the legislation being at variance with the terms of the intergovernmental agreement on preclearance with the US. This legislation is intended to give effect to that agreement. For that reason, I cannot accept the Deputy’s amendment. I hope the explanation I have given clarifies the issue sufficiently for him.
Deputy Fergus O’Dowd: I presume that common sense applies in all of these cases and Irish law applies as well. There are no extra powers given to the preclearance officer that would not be there in any event for the Garda Síochána if it had to use them. Can the Minister confirm that? If consent is not reasonably given, then it is reasonable to assume that the person would not be allowed into the US. Is that the case?
Deputy Noel Dempsey: The Deputy’s interpretation of that is pretty accurate. Unless there is a perceived danger to others, a person can withdraw from the preclearance area and decide that he or she is not going through the procedure.
Deputy Thomas P. Broughan: I accept the general points being made by the Minister. We have specified things quite clearly, although amendments Nos. 4 and 6 deal with the functions of Irish law enforcement officers. I do not see why we do not specify it to the same extent in section (5)(1)(e). Given the disaster that occurred on 11 September 2001 and afterwards, we could always claim that this is an area in which we must move quickly, act first and look at people’s constitutional rights later on. The fact is that it is a US law enforcement officer who will be carrying out this function. For that reason, I will press the amendment.
The Minister mentioned that people would have gone through the normal airport screening before this. Is it intended that on the way to the preclearance area, there will be further screening? Such additional screening operates at some of the Canadian airports, before passengers come across non-Irish officers. People claimed that although this would expedite them through the airports at which they arrive in America, one could imagine where there could be a build-up of travellers, and that this could cause problems for those who have a bona fide reason for entering the US but who misses their flights. Is it anticipated that there will be a further layer of airport security?
Deputy Noel Dempsey: No, but there could be such screening in the preclearance area. The best way to describe this is that people currently go through the checks and the pre-inspection at Dublin Airport or Shannon Airport. When they arrive in the US they go through another process at the end. The US Department of Agriculture must clear them through and so on. Instead of that happening on the far side, it will happen on this side. There could be an extra layer, depending on what is happening at the time. Shoes might be screened, whereas that might not happen on this side. That kind of screening could happen.
Section 6 deals with the functions of Irish law enforcement officers. The section states that where a full search takes place, involving the removal of clothing, then no officer or person of the opposite sex shall be present, unless either that person is a medical practitioner designated by the officer conducting the search, or the officer considers that the presence of that person is necessary for the protection of the person carrying out the search, or is otherwise expedient. My amendment deletes “or is otherwise expedient” and inserts “or the presence of the person of the other sex is in the interests of the person being searched, or occurs with the consent of that person”. The Minister has come up with something similar in his own amendment, but my amendment provides an extra bit of protection to somebody in that situation. It would not be just in the interest of the person, it would require that person’s consent.
The Irish law enforcement officer has a very important power, as is detailed in this section, and this amendment is a small safety sub-clause to make things more secure for the person who is subject to a search without a warrant, as is the case in section 6. I commend the amendment and I hope the Minister accepts it.
Deputy Pat Breen: This section refers to the functions of the Irish law enforcement officers. There are times in Shannon Airport, particularly when transatlantic flights are leaving in the morning, when customs officers and gardaí are busy. We anticipate many private aircraft coming through the airport. What happens if goods are seized and people are turned back and placed in the jurisdiction of the Irish law enforcement agencies, whether the customs or gardaí? It will place much strain and pressure on gardaí and officials there. I hope the Minister will ensure adequate personnel are deployed in the airport at times such as this and that it will not operate on a shoestring which it is at present. He must ensure the necessary resources are in place at the airport.
Deputy Noel Dempsey: As Deputy Broughan said, we had a long discussion on this in the Seanad. I thank Senator Ryan for bringing this to our attention and Deputy Broughan for making another attempt to try to make it as clear as we possibly can. The concern everybody has is the interest of the traveller rather than anything else. I hope Deputy Broughan will accept that amendment No. 5 fulfils the spirit and the letter of what he is concerned about, along with his colleague in the Seanad and the Fine Gael spokesperson in the Upper House.
This section refers to the functions of Irish law enforcement officers and, specifically, the range of search powers to be given to them under section 6. The specific powers arise where a person is reasonably suspected of making a false declaration of goods or being in possession of controlled or prohibited goods in this State, or is reasonably suspected of otherwise posing a threat to persons in the preclearance area. It is important we keep in mind that this will not involve random searches of people going through the area. It refers to a person who is “reasonably suspected”. Those two words are very important. If this happened on a street or anywhere else, one would expect the law enforcement officer to be in a position to search a person without a warrant and detain the person for such a time as is reasonably necessary to carry out the search, again subject to certain conditions.
That power is generally available to gardaí. In fact, if my layman’s knowledge of the law is anything to go by, I believe it is a power available to any citizen. One can detain a person in certain circumstances for a reasonable period of time.
Where a search of a person being detained involves the removal of clothing other than the outer garments about which we spoke and the kind of circumstances about which Deputy Broughan spoke, no officer or person of the opposite sex shall be present unless the person is either a medical practitioner, as the Deputy mentioned, or the officer considers that the presence of that person is necessary for the protection of the person carrying out the search or is otherwise expedient.
The Labour Party’s concern in this regard was that the words “otherwise expedient” were a bit vague and that it could be expedient for the officer rather than the passenger. We sought to address that. The purpose of those words was to provide an appropriate level of protection for the individual in certain circumstances and to protect the interests of the person being searched. I gave an example in the Seanad which I will repeat. If the person being searched is a male minor, it would perhaps be appropriate for his mother to be present during the search.
The issue was the subject of a proposed amendment in the Seanad and we tried to come up with a reasonable amendment which would meet the concerns raised. I agreed to look at the issue again. I have reconsidered the position and have taken legal advice on the matter.
To avoid the doubt expressed in the Seanad, I propose amendment No. 5 which simply adds the words “in the interests of the person being searched” after the words “or as otherwise expedient”. That meets adequately what the Deputy wants to achieve. It will make it very explicit that it is only the interests of the person being searched that are being provided for in this instance.
Again, the legal advice I have is that the wording of my amendment rather than Deputy Broughan’s is the appropriate way to deal with the issue. I have a concern with the Deputy’s wording that if one has to get the consent of a person who is reasonably suspected of making a false declaration or of being in possession of controlled or prohibited goods the State, or is reasonably suspected of otherwise posing a threat to the search, it might cause difficulties, delays and danger to other passenger, and I know that is not his intention. I ask him, therefore, to accept my amendment which is designed to meet the strong concerns expressed by the Labour Party in this House and in the other House.
Deputy Thomas P. Broughan: Much of this relates to the word “expedient” which has a particular legal connotation. I welcome that the Minister has inserted the words “in the interests of the person being searched” which goes a good part of the way. However, all these qualifications are dependent on each other. If one thinks about the nature of the preclearance area and the fact that people have the right to leave it and so on, it seemed reasonable that the issue of consent should be built into the section. From that point of view, I believe our formulation is a better one but I accept the points the Minister made.
I wish to be clear about the review, consultation and so on. Once the agreement is in place, will there be a similar system to the Canadian one? Will there be constant interaction between all the stakeholders, including the American customs and immigration service so that we can review any issues, not after five years but over the months, and see how this is operating in Shannon over the next couple of years as well as in terminal 2 in Dublin Airport?
My final question arises from what I read about the Canadian experience. What happens to all the information the American preclearance officials collate and gather? I know they already have much information about everybody who travels to the United States. The Bill provides for privilege in regard to information but does this State have any rights to the kind of information collated and collected, even on a statistical basis? What recourse do we have in that regard? I urge the Minister to accept amendment No. 4.
Deputy Noel Dempsey: There will be quite an amount of interaction between stakeholders and so on. A consultative group will be in place shortly after this is implemented and, as I said, reviews will be carried out as required. There are different and important stakeholders involved in this. Passengers will want a pleasant experience when they are travelling to the United States. The airport authorities will want to ensure the facilities work and operate smoothly for their customers. The airlines will certainly not want any disruption or unnecessary delays to their schedules.
The US will want a system that works well, efficiently and effectively. Its main concern in all of this, as the Deputy correctly pointed out, is the security of the US. I am satisfied, having spoken to the US Secretary for Homeland Security and her predecessor, that she is committed to ensuring this system works well. The US authorities will watch the workings of the preclearance facilities closely and will want it to work well from both a security and customer point of view. If it were not to work for one party, it can choose to withdraw from it but then it becomes less effective. It is in everyone’s interest to ensure it works well.
Regarding the question on personal information, all information submitted will be held by the United States authorities as currently applies. We would not have access to that information. Between police forces, for example, provisions exist for the sharing of information.  However, data protection measures both in the US and Ireland would prevent too much personal information being provided.
General statistics on passengers, such as numbers travelling, would be available to us but I am not sure more detailed statistics on age, sex and so on would be. I will check on it for the Deputy and get back to him on it.
Deputy Pat Breen: Earlier the Minister acknowledged the facility at Shannon Airport cost €20 million to build while the facility at the Dublin Airport cost €30 million which was incorporated in the building of the second terminal. It puts Shannon at a disadvantage that it must raise its preclearance charges from €1.50 to €10.50 to recoup some of the building costs. I accept Shannon’s preclearance facility will have the advantage over Dublin Airport of being open for a year and a half. The Minister has said the cost per passenger for Dublin Airport has not yet been made out. Will they be on a par with Shannon’s charge? Shannon Airport should try to have lower charges, if at all possible. With transatlantic business being eroded, the charge puts a further constraint on the airport.
Deputy Kieran O’Donnell: On providing proper funding for the marketing of the preclearance facility at Shannon, the Minister said €20 million was provided by the State. This, however, will be fully recouped through an extra charge, which when added to the airport travel tax, will mean an extra €20.50 charge per passenger. The €20 million in funding already given to the airport will, through various levies, be recouped and is effectively a loan. It is disingenuous to claim the Government has given €20 million for this facility. The money will be recouped from passengers and paid back to the DAA.
The preclearance facility is excellent but it needs to be marketed properly. If people are unaware of it, it will be difficult to make it a large competitive advantage for Shannon, Limerick and the mid-west region. What is needed is a proper marketing fund; €4.5 million is not enough. While the Minister was dismissive of the economic and tourism development plan for Shannon Airport catchment area, it was a Department of Transport official who co-ordinated the preparation of the report and it was launched by the Minister’s colleague in the Department of Arts, Sport and Tourism with great fanfare. This report was commissioned by the Government and it called for €53 million to be spent on promoting tourism in the mid-west. The preclearance facility at Shannon is a great opportunity for developing the region’s tourism.
Deputy Fergus O’Dowd: While it may be a single sentence section, the charge at Shannon has gone from €1.50 to €10.50 per passenger. What are the fees for clearance at, say, JFK Airport in New York? While I accept it must be economic for the DAA to get a return on the moneys invested in the facilities, the charges cannot be so high that they turn people off going through Shannon or Dublin Airports.
Deputy Noel Dempsey: Regarding Deputy O’Donnell’s point, at no stage did I put forward the proposition that the Government was providing €20 million for the facility at Shannon or was I being disingenuous about it. I was asked about the capital costs of the facility and I replied what they were. On Deputy Pat Breen’s point seeking assistance for Shannon for this, the facility is being paid for by the Dublin Airport Authority. I do not want to start a political row at this hour of the night but we have to get away from this nonsense that facilities can be provided all over the place with moneys for them coming from the fairy godmother.
Deputy Noel Dempsey: This is a facility that provides a competitive advantage for Shannon. Its cost of €20 million has to be paid in some way. The Dublin Airport Authority will pay the initial capital cost. The costs will be recouped from the people who use it, in return for the convenience of being precleared. Such people will not be delayed at the far side when they arrive in the United States. It is an advantage to Shannon Airport. The recoupment cost is obviously based on the number of passengers who go through. If the number of passengers using Shannon Airport increases substantially, I expect the cost per passenger to decrease. The costs that will apply at Dublin Airport have not been calculated. That will be done on the same basis as at Shannon Airport. It is obvious that the cost can be spread over the greater number of passengers who go through Dublin Airport.
Deputy Noel Dempsey: That is a job for the airport. It is doing that job and should be encouraged to continue to do it, in conjunction with Shannon Development and the tourism bodies. I am not at all dismissive of the report mentioned by Deputy O’Donnell. The Government has invested €4.5 million in the mid-west region. If the Deputy can give me an example of another region of this country that has €4.5 million specifically earmarked for its tourism budget — to promote itself in the United States — I will take my hat off to him. It does not happen. Contrary to what the Deputy has implied, it is getting special treatment.
Deputy Noel Dempsey: I do not know what the charge is in Dublin Airport at the moment. The United States charges $5 for post-clearance or preclearance as part of the ticket price. That is not going to change. At the moment, the pre-inspection charge is €1.50. As a result of all the changes being made, the charge for preclearance will increase to €10.50. If one does not want to pay €10.50 for preclearance, one will be able to choose to travel from Shannon to Dublin for the first 15 months of the new regime and pay €1.50 instead. I think people will prefer to use the preclearance facility. According to the contacts I have had with the Shannon Airport Authority, the €10.50 charge has not been the subject of any negative feedback.
Deputy Kieran O’Donnell: I would like to ask the Minister about a term that was used on Second Stage and is mentioned in Article III. For the purposes of providing preclearance facilities at Shannon Airport, what is regarded by the US authorities as “sufficient traffic” at the relevant airport?
Deputy Kieran O’Donnell: I ask the Minister to give me an example of any region in Ireland, particularly along the western seaboard, that has a similar concentration of US multinational companies to that of the mid-west region. The €4.5 million mentioned by the Minister is more than justified. In fact, it is not sufficient. Can the Minister mention any other region that has such a concentration of US multinational companies?
Deputy Noel Dempsey: I cannot give such an example, which proves that all the propaganda from the Opposition, which claims that the region in question has been neglected by the Government, is total nonsense.
Deputy Noel Dempsey: I apologise. I should have answered the Deputy’s question instead of making that remark. No number is specified. A Deputy spoke earlier about the concern that the US side might pull back as a result of the announcement made by Delta Air Lines and Aer Lingus. I was reminded before my meeting with the US Secretary for Homeland Security to raise that specific issue. When I raised it during the course of yesterday’s meeting, I was absolutely assured that while the US authorities were aware of the withdrawal of the services in question, it would make no difference — the full complement of staff would operate at Shannon Airport.
Minister for Transport (Deputy Noel Dempsey): I thank Deputies for the interest they have shown in this important Bill and the contributions they have made to the debate on it. This legislation represents a landmark development in Irish aviation. I am confident that when the current recession passes, the Government’s policy on preclearance will help Ireland to make progress on the road to economic recovery. I thank those Deputies and Senators who helped to facilitate the bringing of the Bill through the Oireachtas. It was extremely important for the Bill to be passed before the summer recess so the preclearance facility could start to operate. I thank my colleagues on the other benches for their support and assistance to that end. I also thank the officials of the House, my own officials and the Leas-Cheann Comhairle for their help.
Deputy Pat Breen: All political parties welcome the passing of this important Bill. I am delighted it has gone through the House without any problems. When it is enacted, it will be very good for the mid-west region. I hope those using commercial and private airlines will avail of the preclearance facility. I encourage the Minister to initiate a similar arrangement to provide for cargo preclearance. I spoke earlier about the Lynx Group, which is interested in this area and in the Shannon region. There is huge industry in this area. There is huge potential in the hub area. As the Minister continues his deliberations with the transport secretary, I urge him to maintain his efforts in respect of cargo preclearance, which could be the icing on the cake for Shannon Airport. I hope the facility will be successful. I know it will be. It will be good for the region and I am delighted it has made its passage through the House here tonight.
Deputy Thomas P. Broughan: I thank the Minister for accepting the spirit if not the letter of some of the Labour Party amendments in the Seanad and this House. We are grateful for that. Like my colleagues, I believe this legislation will be good for the country, Shannon and, in particular, the mid-west region, which has suffered quite a few blows in recent years.
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