Chemical Weapons Bill, 1997: Committee and Final Stages.

Sections 1 to 3, inclusive, agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. Lanigan

Section 4 reads:

Except as authorised by or pursuant to any regulations made under section 12, no person shall produce, use, acquire or possess a toxic chemical or percursor listed in the First Schedule.

Section 12 states:

The Minister may make such regulations as he or she considers necessary or expedient for carrying out and giving effect to the provisions of this Act....

That seems to be an opt-out. Why does section 4 suggest that the Minister may make regulations which would permit the manufacture or sale of chemical weapons?

Minister of State at the Department of Enterprise and Employment (Ms E. Fitzgerald)

They are not chemical weapons.

They are chemicals which can be used in the manufacture of chemical weapons. It is a peculiarity that I cannot understand. If we are going to ban the use of chemical weapons we must make certain that materials which can be used in the manufacture of chemical weapons are also banned. That might seem extreme as there might be certain chemicals which could be used for humanitarian purposes. Where is the line to be drawn in relation to the manufacture of these chemicals? This is where the Bill and the convention will possibly fall down. There are countries who will use the opt-out "except as authorised". It is an opt-out. I would like the Minister to explain where and when the opt-outs can be used.

Ms E. Fitzgerald

The First Schedule deals with a list of chemicals, not weapons. It is not a practical issue for us because very little or any of these toxic chemicals are in use or held in Ireland. Until the Bill is passed and we do the counting we will not know if the amount is negligible rather than nil. To some extent it is academic. In theory some of these substances could be used for research, medical, pharmaceutical or protective use which is permitted under the convention. The aggregate amount of chemicals listed in the First Schedule which a country can use is one tonne, which is small. Conditions are placed on the transfer of such chemicals to other countries. Exports are permitted only to other State parties and such exports must be notified to the Organisation for the Prohibition of Chemical Weapons. If chemicals were being used for peaceful purposes — for example, the manufacture of paint — and were being exported to Berger Paints in the UK or Germany the movement of that——

Mr. Lanigan

The Minister must have shares in Berger.

Ms E. Fitzgerald

I do not have shares in any company except Dundrum Community Radio, in which I have a £10 share.

The movement from one area to another would be controlled. The use of chemicals is highly restricted because they are toxic. Even though there are theoretical peace-time uses for them, they are controlled and their movement will be controlled by the organisation to be set up in Geneva.

Section 12 provides the Minister with powers to make regulations for the purpose of controlling the use, production, acquisition or possession of the chemicals in the First Schedule. It tightens up rather than loosens the Bill. Because of the quantitative limit of one tonne, it is proposed to introduce a licensing system for these chemicals, which will be administered by the Health and Safety Authority. Our information is that very little, if any, of these are in use. If in theory there was a peace-time use for these chemicals it would be very tightly supervised under these regulations. The movement of them from one country to another would be very tightly overseen at international level. This is very much in keeping with the convention. It ensures nobody will be able to utilise peace-time use for illegitimate purposes. There are no loopholes. It will be regulated, so there will be no under the counter export to, say, Iraq.

Mr. Lanigan

There is a flaw in the Bill. There is absolutely no doubt but that a cocktail of legitimate chemicals can be used to produce a chemical weapon. The problem is that the chemical industry is worldwide and is controlled by a small number of people. Each element in a chemical weapon can be used in a legitimate situation, but the cocktail that makes the chemical weapon could be used by an international group by individually sending parts within the one tonne.

Ms E. Fitzgerald

The national aggregate is one tonne.

Mr. Lanigan

Can anyone imagine a one-tonne cocktail chemical weapon? That is enough to wipe out Dublin in about ten seconds. It is a flaw and how to address it is beyond us. It is not something that can be monitored by the international community or this legislation. It is a flaw that will remain because chemical weapons are a cocktail of legitimate pieces of chemicals. I put down a marker that there can be legitimate production of certain chemicals which, if mixed together, become chemical weapons. Knowing the nature of the international conglomorates who produce chemicals, I do not think they can be controlled by the United Nations. If international conglomorates decide to produce a chemical weapon from legitimate chemicals they will do so. I do not wish to make an issue of this but it is something which should be recognised.

Mr. T. Fitzgerald

It will cause a headache. If we cast our minds back to 25 years ago when the bombing started in Northern Ireland, it was weed killer, imported by all of us, that made the most lethal bomb. It was a granulated type of weedkiller. It was discovered after four or five years that this weedkiller was being used for making bombs. It could be bought in large quantities in almost every agricultural shop and co-op throughout the country. I was working in a shop at the time when a tonne of this weedkiller was bought in in a large consignment because we were wholesaling to another shop. Many years later we discovered, through the Garda, that some of it could have gone to bad use. It was eventually banned. I am not saying Senator Lanigan is right, but I can see there might be a loophole in the Bill.

Ms E. Fitzgerald

From our contacts with the chemical industry it does not seem that any of the substances listed in the First Schedule are used or are likely to be used by Irish companies. There are three Schedules to the Bill. The First Schedule deals with the most toxic chemicals and has the most stringent controls. There can be no more than one tonne of such chemicals in the country. It will be very stringently monitored by the Health and Safety Authority. There are powers of seizure and terms of life imprisonment for breaches of this legislation. It is extremely tough. I believe the Bill, as drafted, allows us to adequately supervise what are theoretical peace-time uses for these highly toxic groups of chemicals. In relation to the Second and Third Schedule lists, which are less toxic and which are organised in terms of degrees of toxicity in line with the provisions of the convention, there are different degrees of control. The First Schedule has the most stringent controls.

We are all trying to achieve the same goal. I reassure Senators that the powers in the Bill are tough. We can close places down, seize materials etc., destroy substances found and jail people. Offenders will not be able to trade with the United States. This will keep people on the straight and narrow. Irish expertise in the chemical area is second to none and there are superb staff in the Health and Safety Authority. They were recognised as such by our European partners during our Presidency. The controls in this section are good and they will be implemented.

Question put and agreed to.

Sections 5 to 12, inclusive, agreed to.

SECTION 13.

Question proposed: "That section 13 stand part of the Bill."

Mr. Lanigan

Under section 13 a person who contravenes the Act shall be liable:

(a) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding two years, or both.

These fines and convictions applied to an international chemical company in breach of the law are a nonsense. They should be multiplied at least tenfold. If someone is providing chemical weapons to an organisation, whether it is a Government or non-Government one, a fine of £1,500, imprisonment for 12 months or a fine not exceeding £100,000 does no good. I do not think anyone would disagree with these measures being increased tenfold.

The Schedules list the toxic chemicals covered under the Bill. When the Carrickatine went down the Americans found canisters which contained phosgene carbonyl dichloride, which is listed in the Third Schedule. Chemicals such as this and others listed in the Schedules are found in cannisters in the Irish Sea. They have been there since the first World War. These were seen on spot image pictures made by the Americans when we were looking for the Carrickatine. I do not know what we can do about it, and I do not want to ask the British Government again. Section 13 is not strong enough.

Ms E. Fitzgerald

I draw the Senator's attention to section 3(4)(b) which provides for a sentence of life imprisonment for anyone who produces, develops, uses or transfers a chemical weapon, directly or indirectly, constructs a premises or engages in preparations of a military nature to use a chemical weapon. The maximum fine in a District Court is £1,500. I would envisage that District Court prosecutions will be taken only for minor technical breaches, possibly if someone was a day late with paperwork. It normally would not be appropriate to conduct a District Court prosecution.

Section 13 states "where no other penalty is provided by this Act." Life imprisonment is the key penalty in the Bill and is provided for in section 3(4) (b).

Mr. Lanigan

If a company produces chemical weapons and a court case ensues, who will receive a sentence of life imprisonment? Will it be the board of directors? This is not specified. It is stated that a sentence of life imprisonment can be imposed under section 3. Who is responsible, the managing director, the chief executive or everyone in the company? This is a nonsense unless every person involved in the decision to manufacture chemical weapons is specified. There will be a fall guy in each company who will be jailed for life and the rest of the company will get away with the production of weapons. Under section 3, who is the fall guy?

Ms E. Fitzgerald

Section 13(3) specifies that the person who gave the order is responsible.

Mr. Lanigan

Is that the chief executive? If it is the board's decision and the chief executive suggests an action, why is the board not equally responsible?

Ms E. Fitzgerald

Under section 13(3) they will all be responsible.

Mr. Lanigan

They cannot be jailed for life under that subsection. They can only be fined.

Ms E. Fitzgerald

Section 13(3) specifies who is deemed to have committed the offence. It states:

Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, any person who, when the offence was committed, was a director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person (as well as the body corporate) shall be guilty of an offence and be liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.