Amendment No. 1 is out of order.
Containment of Nuclear Weapons Bill, 2000: Committee Stage.
Amendment No. 4 is consequential and amendment No. 14 is related to amendment No. 2. Amendments Nos. 2, 4 and 14 may be discussed together by agreement.
Amendments Nos. 2, 4 and 14 to sections 1, 3 and 9 represent a technical amendment to clarify that transfers to and from another EU country are covered by the Bill. As the Bill is currently drafted it only applies to transfers to countries outside the Community. These amendments will close this loophole.
Amendment No. 3 is out of order.
Amendments Nos. 7 and 11 are cognate and amendments Nos. 9 and 21 are related to amendment No. 5. Amendments Nos. 6, 8, 10, 15 to 18, inclusive, and 22 which are cognate are also related to amendment No. 5. Amendments Nos. 5 to 11, inclusive, 15 to 18, inclusive, and 21 and 22 may be discussed together by agreement.
Amendments Nos. 5 to 11, inclusive, 15 to 18, inclusive, and 21 and 22 relate to the Office of the Revenue Commissioners. Amendments Nos. 5, 7, 9 and 11 are for the purpose of withdrawing functions and responsibilities from the Office of the Revenue Commissioners.
Section 5 allows for the appointment of international inspectors by any of the three bodies responsible for the provision of information required by the protocol. The same powers were allocated to each of the three responsible bodies to allow for flexibility in the event that such powers would be required. The only functions that are allocated to the Office of the Revenue Commissioners are to supply relevant data with regard to dual use products being imported into this country. Accordingly, it is not envisaged that the appointment of authorised officers will be necessary for the Office of the Revenue Commissioners. The amendment will remove this responsibility from that office.
Section 6 provides for the appointment under warrant of as many authorised officers as is deemed necessary by the National Authority, the Minister for Enterprise, Trade and Employment or the Office of the Revenue Commissioners. The issuing of warrants to authorised officers is unnecessary for the Office of Revenue Commissioners. The amendment will remove this function from that office.
Section 16 empowers the National Authority, the Minister for Enterprise, Trade and Employment and the Office of the Revenue Commissioners to prosecute any person in connection with an offence committed under this Bill. The Office of the Revenue Commissioners has its own powers for prosecutions in relation to false declarations or misleading information given on customs documentation. Accordingly, additional prosecution powers in respect of that office are unnecessary. The amendment will remove the additional power from that office.
Amendments Nos. 6, 8, 10, 15 to 18, inclusive, and 21 and 22 as tabled by Senators Ryan, Costello and O'Meara relate to the title of the Office of the Revenue Commissioners. When the scheme of the Bill was being drafted reference was made to the Revenue Commissions in the term most commonly applied to that office. The Revenue Commissioners was established by the Revenue Commissioners Order, 1923, as the Revenue Commissions and is listed as such in the Schedule to the Ministers and Secretaries Act, 1924. Accordingly, I accept these amendments.
There is a typographical error in that the amendment should read "In page 5, subsection (2)", rather than subsection (1).
I move amendment No. 12:
In page 5, subsection (1), line 48, before "An" to insert "Subject to any claim of legal professional privilege,".
Section 7 deals with inspections. I am concerned that having extensive powers of inspection which the awesome threat of nuclear weapons generates might take away from standard legal privileges. This amendment seeks to inhibit an authorised officer from doing anything which would interfere with the normal professional privileges, say between a lawyer and a client or a doctor and a patient, which are recognised as exempt from being used in evidence in court or any other way. We wish to ensure that normal claims of professional privilege are not overturned by the fairly considerable powers of inspection given in section 7.
This amendment relates to section 7(1) which sets out the powers of authorised officers to allow them fulfil their inspection functions and ensure compliance with the Bill. It is unusual to find specific reference in legislation of this nature to a claim of professional privilege. Indeed, the Chemical Weapons Act, 1997, on which this Bill is modelled, is worded in exactly the same way as section 7(1) of this Bill. In the circumstances, it is unnecessary to spell out this privilege. Accordingly, I do not propose to accept the amendment.
Amendment No. 13 is out of order.
I raise an issue which is not amenable to an amendment, the seizure and destruction of property. I am concerned that suspicious material could be destroyed. There should be a provision for compensation. We accept that these are substantial powers. Under subsection (1)(n) the authorised officer may “cause any thing found in, at or on the place the possession or use of which appears to the authorised officer to con stitute an offence under this Act, to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless it is in the circumstances necessary for the purposes of this Act. . . ”. That is a judgment by an individual to dismantle or subject to any process or test and possibly even to damage or destroy something.
The Bill does not provide that if an authorised officer makes an erroneous judgment, as could happen – and one might argue it would be preferable that it be done erroneously than to have the intent of the Bill breached – we will recognise the right of the victim to seek compensation. I know such a right exists under general civil law but I would like to hear what the Minister has to say regarding compensation.
Section 7 sets out the powers given to authorised officers to allow them fulfil their inspection functions and to ensure compliance with the Bill and the Protocol. It provides that an authorised officer may apply to the District Court for a warrant to gain entry to a place should an attempt be made to prevent entry for inspection purposes. It also defines what constitutes an offence and stipulates penalties of a fine not exceeding £1,500 or imprisonment or both on conviction of such an offence.
Senator Ryan referred to subsection (1)(n) which stipulates that an authorised officer may, for the purpose of ensuring that the Bill and the Protocol are being complied with, enter any place under warrant, inspect such a place and request any person in such place to allow an authorised officer access to any area, material or equipment in the place identified by the Protocol under Article 2 or listed in Annex I and II. I note the Senator's views which appear to reflect the view that compensation is not appropriate.
No. Subsection (1)(n) states:
An authorised officer may, for the purposes of ensuring that this Act is being complied with–
(n) cause any thing found in, at or on the place that possession or use of which appears to the authorised officer to constitute an offence under this Act. . . . .
[This is not a court, this is an authorised officer making a judgment call]
. . . . .to be dismantled or subjected to any process or test. . . . .
[In other words, the officer can cause something, because he or she believes it to be an offence under this Act, to be dismantled or subjected to any process or test]
. . . . .(but not so as to damage or destroy it unless it is in the circumstances necessary for the purposes of this Act,. . . .
It leaves open the possibility of testing, dismantling or destroying something because an officer believes it constitutes an offence.
I would not necessarily disagree with that provision but what happens if the officer makes a mistake and something is destroyed? I am not suggesting any bad faith. A citizen who is a victim of a mistake by an authorised officer of the State ought to have a specific right to be compensated.
That is what the amendment was about, which the Cathaoirleach, both in his wisdom and quite correctly, I suppose I have to say, ruled out of order. The issue is important. Why would we not recognise that if the State makes the mistake, people should be compensated?
I have difficulty comprehending the purpose behind this. Senator Ryan has clarified the position but it does not appear to make sense in the context of this section of the Bill. Surely any action of an officer would always be subject to court review and an aggrieved party would have the possibility in the first instance of seeking an injunction to prevent it or going to court to have the decision reviewed. To put in something like that on a topic as important as this, the control of nuclear weapons, would not be prudent and could be used as obstruction to the proper and diligent exercise of the duty of the officer in person.
Except for this, that if I were to be at the wrong end of a bad call by an authorised officer and attempted to sue for damages, section 11 states that subject to this section, information and documents obtained pursuant to this Act or the Protocol are privileged. I would have great difficulty in court proving that something wrong had been done when virtually everything connected with the activities of this Act or the Protocol is privileged. Privilege is written into the Act rather than must be argued in court, which is what I would have thought would have been the case. It would be rather difficult to sue since it is already privileged and since the documents and the information are privileged.
This section seems fine to me. It makes sense. This is a very serious and important matter that the person would be present or wanting to do something about it. One cannot deprive people of their constitutional rights and a person cannot act beyond the law anyway, but he must go in and do the job efficiently and the way he wants. I am happy with the section.
I am inclined to agree with Senator O'Dowd. We are talking about very serious matters. The rights are balanced and perhaps compensation, in this instance, would not be appropriate.
Fine Gael, the party of property and fatherland. I am astonished.
I do not see Fine Gael mentioned in section 7.
The idea that the State can seize somebody's property and destroy it and make it virtually impossible for the person to seek compensation for an error on the part of the State because of the quite extraordinary provisions on privilege in section 11 seems to me to be quite peculiar. My advice is that this provision, if there is not a clear route to obtain compensation, is probably unconstitutional anyway. It amounts effectively to the State claiming for itself the right to expropriate property, a right in which I do not believe.
On the point made by Senator Ryan—
You are not required to reply.
But I would like to. I remind the Senator that we are dealing with the Containment of Nuclear Weapons Bill, a very serious and important issue on which there must be total clarity. There can be no doubt about it. If people are going in there, they have great knowledge and are totally involved and in control of what they are doing. It is not a tiddlywinks board or something silly like that. This is serious, important legislation about which we must be serious. There is no point in the semantics in which the Senator is indulging.
I am amazed at Senator Ryan seeking to dilute the powers of an officer on a matter of such gravity. On Second Stage, we discussed the implications that arise for the population at large as a consequence of accidents or anything else related to the nuclear industry. We have had much evidence of that. Chernobyl, which is much in the news even currently, is a stark reminder to us that we cannot be over vigilant in this regard. We should examine how we can strengthen the powers of the authorised officer rather than putting obstacles in the way.
The courts would adjudicate on all legislation enacted by these Houses of Parliament. With regard to the comments on privileged documentation, I am sure the court would exercise its own discretion with regard to the relevance of documents and right to privilege in a situation where somebody gave cause to a judge to believe that they had a case to make. The argument being made is not a strong one. We are debating it for debate purposes rather than making a serious argument on what is a most serious issue.
On a lighter note first, I am very impressed that Senator Ryan has yet again found a new vocation and new constituency. He now seems to be the champion of the rights of property owners but I am not knocking him for that.
That is always happening.
On a more serious note, it is very important that we should clearly and unambiguously point to what Senator O'Dowd and Senator Walsh have referred to, which is that any legislation going through this House or any other House is preceded by the constitutional rights. No individual, property owner or otherwise, can be deprived of his constitutional rights by virtue of any legislation. The corollary to that, as has been articulated so eloquently by my colleagues, is that the issue is far too serious to attempt in any way to dilute the powers of the inspectorate, who will have to be of the highest calibre and expertise. To attempt to do so by introducing a reference to compensation would be folly and would water down one of the most important issues we have to face as a threat to world peace and stability.
First, in the weeks that are in it, the possibility of officers of the State abusing their powers is no longer hypothetical. Power has been abused—
On a point of order, that is a serious statement to make on a issue such as this, where officers are probably involved in this area.
It is a very serious comment to make.
It is a very serious charge to make.
I can understand why members of Fianna Fáil would be touchy on this issue.
It should be withdrawn.
I am not being touchy, the Senator is being totally unethical.
I advise Senator Fitzgerald that Senator Ryan is in possession and I ask him to continue.
Where the State makes a mistake, the question of compensation of the victim of a State mistake should be mentioned explicitly in legislation. The idea that that would inhibit an authorised officer is to suggest that perhaps authorised officers are going to err at the expense of citizens. I do not believe that. If an authorised officer believes legitimately that the situation described in paragraph (n) arises then they should be authorised to take whatever action they need. The rights of citizens are also to be protected and one of those rights is the right not to have their property expropriated. If I thought we could expropriate property there are other places where I would start and it would not be here. We do not have the right to expropriate property.
The combination of the absence of a reference to compensation where property is destroyed, together with the extraordinary demands of privilege under section 11, to which we will come later, would make it very difficult to seek compensation. I agree with Senators on the Government side that constitutionally they would have a case, but we should not pass legislation in this House and then hope that the courts will vindicate the constitutional rights which the legislation attempts to remove.
We must remind ourselves what we are talking about – the containment of nuclear weapons. There is strong feeling throughout the world about this subject. We should also remember that one gentleman in the Middle East almost got away with making a bomb. This tightens up the situation. We want strong legislation and implementation provisions and this Bill provides those. The kernel of everything is inspection.
Let us not strike too many poses about nuclear weapons. The truth is that every Government of this State has said that we do not allow vessels carrying nuclear weapons to visit any harbour in the State. We never ask any of them if they have nuclear weapons on board. We are so concerned about these weapons that we do not even ask people if they have them on board their ships because we know that if we ask them they will not tell us. When the Government of New Zealand suggested 15 years ago that the United States ought to tell it if a vessel was carrying nuclear weapons before it visited New Zealand, the United States got extremely annoyed. Other nuclear powers feel exactly the same. If we want to create a genuine nuclear free zone here, we should legislate to provide that we will not allow any vessel to visit our State unless we can verifiably ensure there are no nuclear weapons on board. We cannot, however, do that.
When we talk about the lesser problem of components of nuclear weapons, it is perfectly reasonable to suggest that a citizen of this State should not have his property expropriated.
I hold no brief for the nuclear industry and I am delighted to see a Minister from the Fianna Fáil Party here to deal with this Bill. Nuclear weapons represent an horrendous hazard for the world and we have seen the consequences of the failure to contain them properly. Is Senator Ryan representing Labour Party policy? Is the Labour Party acting as advocate for the nuclear industry? If it is, let him say so. If not, he should accept the section.
Senator Ryan stated that if he was going after property owners he would not start with the nuclear industry. Does he mean that the threat posed by nuclear weapons is not a priority with the Labour Party while other property owners represent a threat?
This is getting more entertaining so I will stick it out a while longer. The gentlemen opposite are obviously in very sensitive humour. I said that, in terms of the powers of the authorised officers under this Bill, I would not necessarily start with an expropriation without compensation. If, however, the power to expropriate did exist, I would expropriate the property of those who corruptly got permission to develop all over County Dublin by buying the votes of members of Fianna Fáil, in particular, and, to a lesser extent, Fine Gael. I do not, however, have that power.
Such a generalisation is totally unacceptable.
I ask the Senator to resume his seat.
The Labour Party is acting like a team going in at half time and celebrating. Let us await the outcome of the tribunal and then see who is impugned.
I ask Senators to restrict themselves to the Containment of Nuclear Weapons Bill, 2000.
I must ask the Leas-Chathaoirleach to get Senator Ryan to withdraw that remark or we will continually raise points of order. He should withdraw the most irresponsible and sweeping allegations I have heard in either House of the Oireachtas – and I have served in both since 1981. I want that most despicable allegation unequivocally withdrawn.
I also ask that the comments made by the Senator be withdrawn. A tribunal has been established to inquire into this matter. I welcome that tribunal and support its work. It is unfair that parties or persons are named because I am a member of a political party—
It was a political charge. No party or person was named.
It is not acceptable.
It is not acceptable.
The Chair is ruling that we must move on. I ask Senator Ryan to stick to the Bill.
I want Senator Ryan to withdraw the remark or I will raise a point of order.
A political charge was made but no person or party was named.
Parties were named.
He did name parties.
My party was denigrated as corrupt by Senator Ryan and I want that remark withdrawn. If it is not I will continue to raise points of order.
I do not recall Senator Ryan mentioning any party.
He did name parties.
He mentioned the Fianna Fáil Party and he mentioned Senator O'Dowd's party.
It was a general political charge which was not appropriate on this Bill.
It was most scurrilous.
Whoever is corrupt should be put out of public life but let the tribunal find out who is corrupt.
We are dealing with the Containment of Nuclear Weapons Bill, 2000.
This is unprecedented.
Will the Senator withdraw the remark?
With all due respect, it is disgraceful for a man of his academic training, ability and intellect to make scurrilous statements like that and then not have the magnanimity to admit he was wrong and withdraw all references to the investigations of the tribunal relating to political parties being corrupt.
We are not dealing with the workings of the tribunal here. I am sure Senator Ryan, along with every other Member of this House, knows that the tribunal is ongoing and it should be let finish.
That is not good enough. I want Senator Ryan to withdraw the remark. He must withdraw or we cannot move on.
As far as I am concerned, it was a political charge and no party or person was mentioned.
I have been in these Houses since 1981 and I have never before heard such a scurrilous remark.
It was not appropriate to the Containment of Nuclear Weapons Bill but it was a political charge.
I am asking that it be withdrawn.
I am asking that we move on.
If he does not withdraw it, fair enough.
If he does not withdraw it, we can suspend the House.
Ask the Senator to withdraw and if he does not, that is fair enough.
I am sure that Senator Ryan, being an experienced Senator, was aware that it was not appropriate to this Bill, whatever else it was appropriate to.
He is experienced enough to know what it was appropriate to. We cannot move on until he is asked to withdraw the remark. If he does not, it will reflect on him.
The Senator is being disorderly now.
Can I be helpful? I want to put this in context. I was trying to discuss this Bill and my perfectly reasonable contention that paragraph (n) effectively gives the State the right to expropriate people's property. I said that was not possible under the Constitution. For entertainment value, the Government Senators decided to turn this into a row about the Labour Party and its views on the expropriation of property.
The Senator raised the subject.
I asked him to clarify Labour Party policy and he did not do that. His other remark was completely out of order.
If Members do not co-operate I will have to suspend the sitting.
It was great fun when it was at the Labour Party's expense. I do not understand. If the three Senators are telling me that we do not know there was corruption in Dublin County Council—
We did not say that. We do know but we will not know who was involved until the tribunal completes its investigations. We also want these people to be named.
Until they are named by the tribunal we should not make scurrilous statements denigrating parties.
No member of my party voted in favour of any of the contentious rezonings.
The Senator is in no position to talk about any members of his party. He is a recent recruit.
The Senator is raising a matter that has nothing to do with the Bill.
In my defence I will say that I was not raising any of this. I was talking about a right which the State has to destroy other people's property because an authorised officer believes – does not prove – it is a matter covered by the Bill. That is what I said. Maybe that is a fair idea and I think Senator O'Dowd agrees it is important enough to do so. I think it is a peculiar idea and I am entitled to say so. If the Senators opposite want to have fun by generalising into the Labour Party, they can either deal with the heat in the political kitchen, so to speak, or confine themselves to the Bill. For the sake of peace in this House—
We could confine ourselves to the Bill.
I made no personal imputation whatever towards the two gentlemen opposite or towards Senator O'Dowd. I know all three Senators are people of absolute integrity. They used to be friends of mine and I hope they still are.
I am not prepared to withdraw the statement that land in County Dublin was corruptly rezoned. In the interests of peace, I will say it is not yet proven that it was only members of Fianna Fáil and Fine Gael who did it.
It has not been proven.
It is my personal belief that that is the case but, at this stage, I accept it is no more than my personal belief. I thought I was free to express my personal beliefs in this House. I would be quite happy not to imply anything about the individuals but I thought I was free to express my personal opinion, backed up by what I believe to be the facts. Whether that is the conclusion of a tribunal is a separate matter.
We are on section 7 of the Containment of Nuclear Weapons Bill, 2000. Is the section agreed?
This is extremely technical material involving a succession of technical judgments. I refer to section 7(1)(n) where something appears to the authorised officer to constitute an offence under this very technical legislation. Section 8 reads:
Where a member of the Garda Síochána suspects, on reasonable grounds, that an offence under this Act has been or is being committed in, at or on any place or by any person, the member has and may exercise in relation to that place or person, in addition to any powers that he or she may have by virtue of being a member of the Garda Síochána, any of the powers of an authorised officer under this Act.
That is fairly sweeping power and it relates to technical material. The powers of search and arrest of the Garda Síochána are adequate without giving them the additional powers of an authorised officer under this Act. I would like the Minister of State to indicate why it is necessary to extend these powers in such a blanket fashion to any member of the Garda Síochána. A garda might be just out of the depot but will have these powers in what is a tricky area.
This is a follow on from the discussion we have had on section 7. It would appear to be absolutely incongruous that we would agree that an authorised officer would have certain powers but that we would try to deprive the Garda Síochána of stepping into their shoes. Most legislation can be enforced by the Garda. In an area such as this, where the common good may be at such risk, it seems sensible that the Garda would have similar powers. In instances envisaged in the Bill it is imperative that the authorities move with the utmost haste.
Often authorised officers find it difficult to assert the authority they have without the assistance of the Garda. That covers a wide range of activity and controls. In this instance there is absolutely no divergence between the duties of authorised officers and the Garda. It would be surprising if we did not confer the same level of authority on the Garda.
The kernel of this section is inspection and policing and the strength to implement the legislation. The section provides that where a member of the Garda Síochána has reasonable grounds to suspect that an offence under this Bill is taking place the garda has the powers of inspection etc. of an authorised officer as provided for in section 7. As in all cases in policing here the Garda Síochána provides back up to officers who are specialised in this area. I would have thought, because of the enormity and the seriousness of the subject matter, it was incumbent on us to extend those powers to the Garda Síochána.
Let me give an example, at the risk of getting myself beaten over the head by the gentlemen opposite again for my academic qualifications. I am a chemical engineer—
It is not over the head the Senator should be beaten.
If I was to get touchy, a Leas-Chathaoirleach, I could imitate the Senator and demand that he withdraw that remark as that would have serious implications for my bodily integrity.
That was more than a political charge.
I refer to Annex II, the list of specified equipment and non-nuclear material for the reporting of exports and imports. Solvent extractors and solvent extraction equipment will be found in virtually every pharmaceutical plant here. This is our second biggest export after agriculture and is larger than information technology. Chemical holding or storage vessels are referred to and some of the others mentioned have specific nuclear resonances, to coin a phrase. Rotary shaft seals, compressors and gas blowers are also referred to. This is equipment which I teach my students about. To make a judgment as to whether that material is being used for legitimate purposes or in breach of this requires technical expertise. That is the point I am making.
Of course, the authorised officers should have the full support of the Garda Síochána but we do not do this, contrary to what somebody said, as a matter of course with authorised officers. There is considerable provision in company law for the appointment of authorised officers. There is no provision in company law of which I am aware for a garda, because he or she suspects an offence under company law, to take on himself or herself the powers of an authorised officer. A garda who is untrained and unskilled can come to the conclusion that there is a breach of the Containment of Nuclear Weapons Bill because he sees a solvent extraction unit where he did not expect to find one. I do not know how a member of the Garda Síochána would know where to find a solvent extraction unit.
We should not give to the Garda powers that are beyond their capacity to implement. This is, by definition, very technical material. It is like saying one would allow the Garda into a chemical plant to decide if it was safe in the event that the Health and Safety Authority was to inspect it. Maybe they should, because in many cases, particularly on building sites which are obviously unsafe, even the most unskilled lay person would realise it.
This is very technical and it overlaps a great number of other areas. I will not make an issue of this but I do not think it is an area in which the average garda could have the technical expertise to make a judgment.
The Senator's point would make much sense in relation to other legislation, but it does not make sense with regard to this Bill. This serious and fundamental legislation deals with nuclear weapons or parts of such weapons, or any activity which could be deemed to be related to the use, manufacture or movement of such weapons in part or in whole. There probably is a significant problem in relation to international ter rorism but all the powers of this State and every other state must be used if there is any doubt. The Bill must give power to people who form such an opinion to act immediately without ambiguity or lack of clarity.
Ireland would be criticised by the world if it was an indirect party to an act which involved the non-containment of nuclear weapons. The discharge of such weapons would have catastrophic effects, not only for the generations present when it happened but for future generations. It is a most serious matter and it is important that the State uses the maximum legal powers to act if there is any doubt in this area.
I do not have much to add to my earlier comments but Senator Ryan pointed out that he is a chemical engineer. We greatly respect that, but it should be noted that section 8 is already incorporated in the Chemical Weapons Act, 1997.
It should not have been.
I am sure that Act serves us well.
Is the question agreed?
That is the least valid argument for doing anything. We could have done without an enormous amount of earlier legislation. As I said, I want to know why this section has been included. Who will train a garda sufficiently to make these judgments? This is the issue. I have no problem with the Garda being given powers to assist, support and protect authorised officers, but this does not relate to larceny. This involves equipment which in many cases can have only one or two uses, one of which is non-threatening and benign in relation to the manufacture of pharmaceuticals.
I have no idea why this section was included because either unfortunate gardaí will make mistakes or they will have to be trained as authorised officers. The Minister said there is a similar provision in the Chemical Weapons Act, but I am sure there is no provision in the Companies Act to enable a member of the Garda Síochána to take upon himself the powers of an authorised officer. I do not understand the position.
I am flabbergasted by what appears to be a filibuster on most important legislation. I do not know if the Senator has read the section.
Senator Walsh is obviously unused to opposition.
May I have the protection of the Chair? The Senator proceeded without interruption.
I take legislation seriously.
I do not know if Senator Walsh really needs my protection.
We are witnessing a manifestation of raw nerve.
Unless the definition of filibuster has changed, I do not think we are involved in that.
Are we not?
I thank the Leas-Chathaoirleach. I feel defended.
I call Senator Walsh, on the Bill.
For the information of the Senator, section 8 states, "Where a member of the Garda Síochána suspects, on reasonable grounds. . . ". The Senator's suggestion will not apply. A garda will not be strolling along on the beat, decide to call in and confiscate a piece of property. It does not happen that way. The Bill will safeguard the position with regard to enforcement. The Minister is correct to identify that enforcement is critical to the effective implementation of the Bill.
The aim of the legislation, which is the containment of nuclear weapons, appears to have been forgotten in the meandering discussion that is taking place. It is much better that any errors in this area are on the side of caution rather than with regard to a nebulous argument on property rights, which, in any event, are safeguarded by the Constitution.
Is the question agreed?
Allow me to get this matter sorted out.
We should move on. The question has been agreed to twice.
If I get involved in a filibuster, Senator Walsh will know. I am not involved in a filibuster.
The Senator will then know what is a counter-filibuster.
Allow me to explain to the Members who perhaps are trying to get industry located in their areas that the Bill states that, except as authorised by or pursuant to regulations, no person shall produce, use, acquire, transfer or process any equipment or material listed in Annex I or II. Annex II mentions, among other things, items such as solvent extractors, solvent extraction equipment and other equipment which would be used in the production of many items, including microchips for the information technology industry.
My point is that this is a technical matter. Under the Bill, it will be an offence for somebody to produce a solvent extraction unit or to use a solvent extraction unit. I do not know if a person would be prosecuted for doing so or whether the pharmaceutical and chemical industry is aware that once the legislation is passed it will have to get permission to build a further solvent extraction unit or if the Environmental Protection Agency is aware that yet another layer of regulation is being imposed on an already well regulated industry. However, adding the Garda to the list of regulators in this technical area only follows what existed already. It is wrong and it should not be included. It is rubbish.
I move amendment No. 15:
In page 9, subparagraph (ii), line 12, to delete "the Office of".
I move amendment No. 16:
In page 9, subsection (1), line 20, to delete "the Office of".
I would be grateful if the Minister would explain the need for this section. The explanatory memorandum states that this section provides that information obtained arising from enforcement of the Act and the Protocol is privileged, subject to certain conditions. This is a wonderful explanation of what the section contains. Why should all this information be privileged? It is fine if it might be covered by the Official Secrets Act or provisions of confidentiality. However, privilege is a layer beyond either official secrets or confidentiality. Arguably, it makes it difficult even to have it disclosed in court. What is the reason for it?
Section 11(2) deals with Senator Ryan's concerns in this area. It states: "Information and documents are not privileged to the extent that they are required to be disclosed or communicated for the purposes of an emergency involving public safety." This dilutes the power of privilege which concerns Senator Ryan, although his query is legitimate and I am glad he raised it.
I thank the Senator.
We need clarity about when, how and in what circumstances the privileged information for which the Bill provides is covered. Section 11(2) states that it is not privileged in all circumstances. It states that "they are required to be disclosed or communicated for the purposes of an emergency involving public safety". That gives it the necessary balance for which Senator Ryan is calling.
We are talking about commercial secrecy. Section 11(2) states: "Information and documents are not privileged to the extent that they are required to be disclosed or communicated for the purposes of an emergency involving public safety." I have missed the Senator's point, although I am sure it is apt. We have digressed a lot on this issue.
Section 11(4) states: "Notwithstanding any other Act or law, no person is required, in connection with any legal proceedings, to produce any statement or other record containing privileged information or documents, or to give evidence relating to it or them, unless the proceedings relate to the enforcement of this Act." This means that information assembled under the Bill cannot be used to pursue another issue, for example, the way this Act is implemented or enforced. If someone wants to take a civil action to see if the Act is being enforced properly or someone wants to look at a plant which has been inspected by the Health and Safety Authority to see if the job is being done properly, we are saying that information collected by the authorised officer cannot be used for the purposes of prosecuting criminal offences under health and safety, environmental protection or any other legislation. I want to know why such information is privileged.
Section 11(2) states: "to the extent that they are required to be disclosed or communicated for the purposes of an emergency involving public safety". I do not regard it as much of a concession that information which would enable us to avoid the consequences of a major emergency would not be privileged. It would be a step closer to totalitarianism if that was not included in the Bill. Why is this level of explicit privilege written into the Bill? It could state that it is confidential and there could be a penalty for unauthorised disclosure. The courts could then decide whether under a particular set of circumstances the information was confidential.
The normal process of discovery in a court action could not be used to extract information if, for example, someone was dismissed and wanted to take a court action for dismissal. An authorised officer, for example, who might infer that he or she was unfairly dismissed will not be able to seek this information because it is privileged. Why is that the case? I reassure Senator Walsh that this is not a filibuster but a genuine concern.
That is the first genuine point made by Senator Ryan since we started this debate.
I ask you, a Leas-Chathaoirleach, to restrain the Senator before I am forced to do so myself.
The Senator asked an interesting question which needs to be clarified. The Bill seeks to ensure that information gained as a consequence of the enforcement of the Act will not be disclosed for any purpose other than public safety. That is sensible. The Senator is concerned that this is an infringement of the rights or commercial advantage of the nuclear industry.
Does the Senator have a question for the Minister?
Section 11(4) states that documentation in any court case taken as a consequence of this Act is not privileged. The point made by Senator Ryan that property owners would be inhibited from pursuing a case because documentation was privileged seems to be covered by subsection (4). I hope that reassures the Senator who expressed concerns which were not shared by other Members of the House.
The Preamble states that the agency must, among other things, "take every precaution to protect commercial, technological and industrial secrets as well as other confidential infor mation coming to its knowledge". Senator Ryan wants to know why that is the case. The reason is that we aspire to ensure that commercial secrecy obtains. The powers in the Bill are strong but we must protect commercial confidentiality and the information obtained via those strong, almost draconian, powers.
This country has built its prosperity on two big industries. One is the information technology industry which is epitomised by Intel in Leixlip, although not exclusively. It has been successful commercially because it is good at what it does and people cannot match it. However, it must still make everything it does known in considerable detail to the Environmental Protection Agency, although some of it is confidential and cannot be disclosed to third parties. The Health and Safety Authority and the planning authorities are also entitled to know precisely what it is doing.
I am not aware of any assertion of privilege in the legislation governing the EPA or the Health and Safety Authority. Privacy and commercially sensitive material are protected and we have patent law and copyright and many other measures to copper-fasten that. Why is this different? It is that someone thought of including it. I suspect that the inclusion of draconian measures which are stronger than those which previously existed is a reaction against freedom of information. Dreadful penalties were once incurred if one disclosed anything confidential. Now it is the case that not even the nasty old courts can gain access to information because it is privileged. There is no need for it.
I read the Preamble and it understandably states that there is no desire to inhibit economic growth, which is fine. However, I am not convinced that what the Preamble wishes to achieve will necessarily require the level of privilege provided for in the Bill.
I do not agree with Senator Walsh about section 11(4) and proceedings relating to the enforcement of the Bill. In my experience that means a person being penalised under the Bill, not a person suing under civil law because of an abuse under the legislation. However, I could be wrong about that.
As regards the nuclear industry, I spent an enjoyable summer in Senator Walsh's constituency in 1977—
The Senator has never been back since.
—doing my best to protect this country from the nuclear industry when Fianna Fáil was mostly in favour of it. The effort was successful thanks to young Fianna Fáil, of which Senator Walsh may have been a member 20 years ago.
Will the Senators who are claiming a division please rise?
Senators Ryan, O'Toole and Costello rose.
As fewer than 5 Members have risen, I declare the question carried. The names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
I move amendment No. 17:
In page 9, paragraph (a), line 47, to delete "the Office of".
I move amendment No. 18:
In page 10, subsection (1), lines 5 and 6, to delete "the Office of".
Everybody agrees this is a very serious business. The penalties on summary conviction are a fine not exceeding £1,500 and a period of imprisonment not exceeding 12 months or both. My understanding was that the maximum penalty on summary conviction was two years, or three – I am not sure which – and I would have thought that someone found guilty under this Bill, which relates to containment of nuclear weapons, is guilty of a serious offence. I do not see why 12 months was picked instead of two years for a very serious offence. I do not want to make a big issue out of this, but this seems a classic case for the maximum penalty under the law.
I empathise with Senator Ryan. We have talked about the seriousness of the Bill and on Second Stage we highlighted the consequences of failure to enforce safety standards at nuclear plants and throughout the industry, which could endanger large sections of the world's population. The onus is on us to ensure that the penalties are commensurate with the magnitude of a crime in this area. I agree with the Senator that the maximum penalty possible should be imposed.
I concur with Senators Walsh and Ryan. We should send out a powerful, unambiguous signal on this issue, as money means nothing to some operators in this area. We should send out a strong signal relating to the severity of a prison sentence and I am strongly in sympathy with the sentiments of both Senators, as 12 months is not enough. I am not worried about the provision for the fine not exceeding £100,000, as some people in this field could be fined £1 million and it would mean nothing to them. That and the provision allowing for imprisonment for a term not exceeding two years are both totally inadequate and do not send out the kind of unambiguous signal we must send to those who perpetrate these kinds of offences and who are putting the world at risk.
Obviously if the offence is deemed to be serious it is an indictable one. There has been a trend running through our debate which relates to the huge urgency of this subject. If we are to be consistent, I will listen to Senators on the scale of both fine and sentence. Perhaps I can look at this and come back to it on Report Stage.
Amendments Nos. 19 and 20 are related and are to be taken together.
I am happy to withdraw my amendment because the Minister of State's amendment meets our concerns. We are in the peculiar position now, however, where there is no absolute right to confiscate the property of somebody who has been convicted of an offence under this Bill but there is an absolute right to destroy it before somebody has been convicted under the previous section on which we had all the fun. It is rather peculiar that there is an unqualified right to destroy something where somebody suspects something but where somebody is convicted of an offence, the court has to decide, correctly in my view, whether the property should be confiscated. I hope that in most cases the court will decide that the property ought to be confiscated.
I move amendment No. 22:
In page 12, line 44, to delete "the Office of".
Amendment No. 25 is related to amendment No. 23 and they may be discussed together, by agreement.
I move amendment No. 23:
In page 3, line 9, after "PROTOCOL" to insert "DONE AT VIENNA ON THE 22ND DAY OF SEPTEMBER, 1998".
The purpose of amendment No. 23 is to describe the protocolumn Amendment No. 25 is a correction to the text because the text of the title describes it as the treaty of non-proliferation of nuclear weapons, whereas in the Bill it is described as the treaty on the non-proliferation of nuclear weapons.
Amendments Nos. 23 and 25 relate to the Long Title of the Bill. With regard to amendment No. 23, the purpose of a Bill title is to outline in broad terms what the Bill is about. The date of the protocol is already stated in the protocol which is a Schedule to the Bill. Inserting the date makes no difference to the purpose of the title and, accordingly, I propose not to accept this amendment.
With regard to amendment No. 25, as Senator Ryan said, an unfortunate typing error occurred at the drafting stage. The title should refer to the "Treaty on the Non-Proliferation of Nuclear Weapons". Accordingly, I propose to accept this amendment.
Amendment No. 24 is out of order.
I move amendment No. 25:
In page 3, line 15, to delete "TREATY OF" and substitute "TREATY ON THE".
Amendment No. 26 is out of order.
When is it proposed to take Report Stage?
Wednesday, 17 May 2000.
Is that agreed? Agreed.
I wish to indicate that some additional amendments have been tabled relating to references to the Office of the Revenue Commissioners which will be taken on Report Stage. The correct reference should be "Revenue Commissioners". These references are at section 9(2), line 9, and section 10(1), line 15. I apologise for any inconvenience caused. I would like the opportunity to examine the Bill more closely to ensure that the appropriate reference to the Revenue Commissioners is correctly stated throughout the Bill.
I thank Senators who involved themselves in this interesting session this afternoon.
I thank the Minister of State for the manner in which he handled Committee Stage, the number of amendments he accepted and the consideration he gave to everybody. This is one of the most important Bills to come before us in this session.