This meeting has been convened to consider the Biological Weapons Bill 2010. I propose that such consideration be completed no later than 4:30 p.m. Is that agreed? Agreed.
I welcome the Minister for Foreign Affairs, Deputy Martin, and his officials.
Biological Weapons Bill 2010: Committee Stage
Section 1 agreed to.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."
Where does the liability for transmission lie if, for example, a person arranges to have a biological weapon placed on an aeroplane that lands in an Irish airport? Is the issue incorporated in this section? The Bill refers to a person who "stockpiles, acquires, possesses or retains or transfers to another person".
Section 2(2)(a) states a person shall be guilty of an offence if “the person stockpiles, acquires, possesses or retains or transfers to another person a microbial or other biological agent, or toxin”. That basically covers it.
While I do not intend to delay the select committee unduly, I wish to make a point to the effect that the existence in a formal legal statement of an offence is welcome. I welcome this in respect of the international construction of this matter. However, I remain concerned about the absence of an executive capacity to implement it. I will not delay consideration of this section but I made a point during the Second Stage debate on this Bill about duty and the right of inspection. This issue has been encountered previously in respect of necessary amendments to the air navigation Acts. While I do not have my notes to hand, I recall this clearly and raise this point to be helpful. I am interested in the jurisprudence involved. What has increasingly worried me about it is that unless a formal prohibition in law is accompanied by mechanisms to ensure the identification and delivery of a sanction and so forth, it tends to be an obstruction. To some extent, it masks the violation of the principle involved in the substantive legislation on which we are in agreement. This point on section 2 may arise otherwise. I have just come from another debate and I am relying on my memory of the argumentation.
The Deputy is referring to enforcement of implementation and compliance. The Garda has general powers of search in terms of aircraft and so on, although it needs a reasonable suspicion under current Acts that something unlawful is occurring or present before it can search premises, including aircraft.
To conclude the matter, I understood a Cabinet sub-committee was examining this matter.
Correct.
The sub-committee's existence was referred to when I produced a Bill on the capacity to inspect and so forth arising from the fact that we did not have satisfactory transparency in respect of Shannon Airport.
The Deputy has conflicting principles. There would be a time when he would be strong on the principle of civil liberties, for example.
This is the whole issue. The extreme view of civil liberties and-----
I did not mean it was an extreme view. My apologies.
The Minister makes a most interesting point. I am disappointed that the Cabinet sub-committee has been unable to come forward with a revision of the basic air transport Acts that would satisfy the issues I have raised. I do not intend to delay on this interesting question, but I raise it because it does not just relate to this Bill. For example, it has arisen in the United States of America in terms of anti-trust law and monopolies legislation, where the sheer existence of something in law that people know cannot be implemented serves to be a real obstacle to securing the consequence one wants. No matter my point or whatever the Minister will say, the committee could be here until the cows come home. The fact is that, in the Shannon case, the requirement on the civilian to demonstrate the capacity to go on to the aircraft in question would bring us nowhere. The Minister and I differ on this point.
It is more than differing. We must also be reasonable. Were we to take the Deputy's suggestion to its logical conclusion, we would not confirm any international convention on anything.
Yes. In everything one does in life, there must be balance and proportionality.
People are trying to shoehorn the Shannon debate into a Bill when it might not apply at all. There is a bit of this going on. We can implement and enforce the Bill and we must work with our international partners. I accept that there are various mechanisms and fora through which we must work to ensure international compliance and co-operation in the enforcement of this convention. There are limitations in the convention's origins in terms of the issue in question, but this is not to suggest that we should not have proceeded with it in the first place.
I do not want my opinions to be misconstrued. I am in favour of the principle of the initiation of the legislation. Jurisprudence is going in a certain direction, namely, that having strategies of implementation is being internationally accepted in different instruments. My point does not question the bona fides of the Bill. Rather, it is that implementation strategies are becoming conventional. As the Minister knows better than I in terms of, for example, the signature of internationally binding agreements, protocols and so forth, the law is better and citizens are happier where implementation strategies are expressed. I have made my point.
Conventions drawn up in 1972 never anticipated the sort of terrorism now facing the world. In real terms, these sections in the Bill equally apply to how one deals with the problem of terrorism and with the use and transfer of dangerous substances. In the Minister's discussions, are people considering updating these conventions in the context of the role of terrorism in the world today? Will further conventions or agreements between states be necessary to deal with this fearful issue? It has been a long time since 1972 when we did not know about terrorism.
The 2004 United Nations Security Council Resolution 1540 also applies and we must have due regard to it. There was also the review conference of 2001. We were unhappy that, to a certain extent, it was not possible to achieve agreement on identifying effective mechanisms to strengthen and verify compliance with the convention, which relates to Deputy Higgins's point. There was no agreement on an inspection and verification protocol to the convention in the 2001 review conference. However, another review conference is scheduled for 2011, which affords us a further opportunity to press the issue home. As such, regular reviews take on board the new threats that appear on the horizon, specifically biological weapons. They have informed the production of this Bill and an interdepartmental committee has been considering the issue. Our people work on the various international fora that relate to the convention and are up to date on the threats and dangers out there.
There does not seem to be any standardised method or attempts to standardise methods used at airports. Look at the US. The level of security and the use of certain types of human and equipment examinations vary from one country to the next.
There is a certain general standardisation across all airports, but I take the Deputy's point. The examinations' level of severity differs even between airports in the US. I was recently in airports where people were regularly handing over all sorts of substances, from nail varnish to toothpaste.
What about intelligence on biological weapons?
I was about to discuss that. Deputy Barrett is correct. My gut instinct in these situations is that good intelligence is key, as was the case in Sweden recently, although that was not a biological issue.
Question put and agreed to.
Section 3 agreed to.
SECTION 4
I move amendment No. 1:
In page 4, to delete from line 37 down to and including "(b) on” in line 41 and substitute “liable on”.
I am interested in hearing the Minister's reply.
Section 4 provides that a person suspected of an offence under the Bill may be tried summarily, that is, with a minor offence before a District Court, or on indictment with a serious offence in the Circuit Criminal Court before a jury. The effect of the proposed amendment is to make all offences under the Bill serious offences with serious penalties. However, the Bill as drafted is the standard method of dealing with the trial of offences that may be committed in the course of activities the consequences of which can range from the extremely grave to the relatively minor. The Parliamentary Counsel has advised that the proposed amendment would severely limit the options for prosecution. Depending on the facts of any given case, it may be appropriate to institute summary proceedings where the act involved is a minor instance of an offence under the Bill. While I agree with the sentiment of Deputy Higgins's amendment that every offence under the Bill should be treated as a serious matter, not all offences will be serious ones and will depend in each case on the facts. The prosecuting authorities need to retain the flexibility to proceed on a summary basis. For this reason, I am not in a position to accept the amendment.
It is difficult to consider any offence of this nature to be minor, particularly when one sees the list of offences in section 2. This amendment seeks to excise the notion of a minor offence of this nature that could be handled at a lesser court and be punished through a fine.
I am not convinced that from a drafting point of view it was necessary to make this legislation consistent with other categories of offence that may not be as grave in nature. In legislation that deals with such offences such as cluster munitions to biological weapons, I see great merit in taking the high ground. It is hard to find innocence or harmless activity when dealing with such offences. Will the Minister opt for this approach with this legislation?
I am surprised at the amendment in some respects. When I first saw Deputy Higgins's amendments, I thought they had been tabled by my former colleague, Michael McDowell. I believe room needs to be left for situations such as someone behaving recklessly as opposed to knowingly. Deputy Higgins is taking a hard line on this. We need a bit of elbow room to allow for discretion and flexibility in cases.
Is the Minister getting soft?
Maybe.
That could be the case.
When one is drafting laws, one must allow for every eventuality. We all have experience of cases in which a person ended up committing an offence but was not part of the conspiracy behind it. This amendment could close doors and a particular case could end up being dealt with disproportionately. This is just covering the sensible solution.
My thinking is to make us completely free from these kinds of offences. If the Minister wants me to say he has some kind of a republican compassion in all of this, I will not hold up the proceedings.
The section states "a person shall be guilty of an offence if the person stockpiles, acquires, possesses or retains or transfers to another person a microbial or other biological agent, or toxin [...] the person does so knowing, or is reckless ...". To commit an offence one would want to be knowing what one was about.
I should not get into this but someone might be used.
Yes, but I do not see it is a major issue.
The thinking behind the amendment parallels with that of Dick Cheney and George W. Bush on Iraq and weapons of mass destruction.
Those were fantasies of the imagination.
They would believe there may not be summary convictions in any regard. Was this Deputy Higgins's thinking?
It was not.
My comments were slightly tongue in cheek.
While I believe the use of biological weapons and cluster munitions fall into a different category, I am willing to accept there can be recklessness at times.
To be fair, I see Deputy Higgins's point about suitable punishment for serious offences. There can be, however, cases that fall outside of it.
I accept evil people can get people to commit offences without full knowledge or who do not have the full capacity to understand the consequences of their actions. However, due to the seriousness of these offences, one has to be careful in how one punishes offenders. That was the reason behind this amendment.
I accept that.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Sections 5 to 9, inclusive, agreed to.
SECTION 10
I move amendment No. 2:
In page 6, line 22, to delete "may" and substitute "shall".
Section 10 states:
Where a person is convicted of an offence under this Act, the court by which he or she is convicted may order any thing used for the purposes of, or in connection with, the commission of the offence to be forfeited to the State, and any thing so forfeited shall be disposed of as the Minister may direct.
This is a discretionary power of the court. The purpose of the amendment is to oblige the court to use this power. In other legislation which deals with forfeiture of items used in the commission of criminal offences, it is appropriate to allow a court to consider the circumstances of each case separately. In many cases, it would probably be appropriate that the items or facilities used in the commission of a biological weapon offence should be forfeited.
However, it is only right that a court should have discretion to deal with each case and its facts. For example, if a laboratory were used by a person for the production of a biological agent or toxin without the knowledge of its owners, it would seem excessive that the laboratory should be forfeited to the State if the owners were blameless. There are factors in terms of employment and so on. The way it is worded currently allows discretion to the courts to examine the facts in each individual case as it presents and to use discretion appropriately. If there were illegal laboratories with various equipment, the courts could confiscate it and the State could take over and so on. We need to allow for options in the case of other scenarios and this is the thinking behind it.
I appreciate that thinking. I am keen to ensure no misconstruction of what I sought. I am not against the existence or the presumption of innocence. However, let us remember a person in possession will have been found guilty of something. The issue arises of whether a duty of care was taken. It is somewhat like the point the Minister made on security and the vetting of employees. I suppose I have fallen on the heavy side. In so far as I accept the presumption of innocence I can accept the principle of discretion as well. In this area involving such weapons and materials, we have a greater duty of care. I am satisfied to allow the Bill proceed and I will not press the amendment.
Amendment, by leave, withdrawn.
Section 10 agreed to.
SECTION 11
I move amendment No. 3:
In page 6, subsection (1), line 27, after "apply" to insert "ex parte ”.
I am keen to hear the Minister's disposal of this.
I will outline the section for members. The section states: "A member of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for an order (in this section called a "forfeiture order") for the forfeiture to the State of any microbial or other biological agent, or any toxin (whatever its origin or method of production) or other thing, on the grounds that possession of the agent, toxin or other thing in the circumstances in which it was found is prohibited under this Act." A senior member of the force may apply to the District Court for an order for the forfeiture to the State of the biological agent or toxin prohibited under the Act where it is to be used for a non-peaceful purpose.
As Deputies will be aware, most biological agents occur in nature and are ubiquitous in the natural environment. They may be found in water, soil, plants and animals. The development of biological agents by humans is necessary to produce vaccines to prevent or cure infections caused by those agents. An outright prohibition of production of biological agents would have threatened vaccine production and other perfectly legitimate activities valuable to society.
Some toxins occur everywhere in nature. The venom of a spider or a snake and the sting of a wasp or a jellyfish are all toxins. Accordingly, the negotiators of the biological weapons convention prohibited the production and use of biological agents by reference to the purpose or intent of the producer or user. Therefore, the prohibition laid down extends to all biological agents and toxins unless they are intended for peaceful purposes and unless their types and quantities are consistent with such purposes. The effect of Deputy Higgins's amendment is that the person concerned would not know or be entitled to know that an application has been made to court to forfeit a biological agent or toxin found in that person's possession. This means the person would not be given an opportunity to argue before the court that the agent or toxin is intended for peaceful purposes before the court takes a decision on its forfeiture.
In addition, section 11(4) confers a right of appeal against a forfeiture order or a person aggrieved by it. Such a right of appeal would be totally undermined if the official application of the Garda Síochána for a forfeiture order could be made ex parte. The forfeiture is an interference with property rights, which enjoy constitutional protection, and therefore should not be provided as such rights could be interfered with without a the right of reply. However, section 11(2)(b) does contemplate an application for a forfeiture order to be made if the owner or person who has the right to possess an agent, toxin or other material at issue cannot, after reasonable inquiry, be found. I am unable to accept the Deputy’s amendment for these reasons.
That is most interesting and I appreciate the Minister's reply. Without wishing to delay unduly with the matter, at issue is the appropriateness of the thinking of property law with regard to this issue in any case. The issue of what a person is in possession of arises. It is critically important how one defines this matter. If material has the capacity to be remarkably dangerous, whether a person has full knowledge of that is, to some extent, irrelevant. The thinking which derives from the property argument is thin and frail. What was I trying to do? Should one give a person time, capacity and space to seek to evade the law? One may need carry out a test on a particular item and one may need do so very quickly. One should be able to do so without having to give warning to the person. To use the Minister's argument, it is probable one would have made one's move on the basis of intelligence. I was trying to remove any capacity that might exist for delaying implementation of the law.
As the committee is aware, I am not a lawyer. With respect, the argument relating to property rights is somewhat peripheral in this regard and with regard to implications for the common good, public safety and so forth. They override any notions in that sense. It is interesting the Minister took the view that I was guilty of a McDowellism earlier. I take a very progressive view of the public good.
There is a good deal in what Deputy Michael D. Higgins said. We are not dealing with ordinary legislation or ordinary times. We are dealing with serious issues which may arise and which may possibly affect the lives of thousands of people. In such circumstances, the Opposition amendment may well strengthen the legislation rather than weaken it in any way. There is much to be said for accepting such an amendment. I do not envisage that it would affect in any way the effectiveness of legislation nor do I envisage that it would cause problems for the administration involved in dealing with issues. It strengthens the legislation without going overboard. Ultimately, this is simply a matter of giving people the right to do something without having to notify every Tom, Dick and Harry in the process. If something takes place subsequently then a protection is in place.
Allow me to clarify that point. There is nothing to stop the Garda from seizing evidence. We simply make the point that a person is entitled to know that certain toxins or substances are being taken. Such a person would not be in a position to stop anything being taken but the person may go to the courts and seek their return. This does not in any way weaken the substance of the legislation. I was Minister for Health during the scare following the events of 11 September 2001, including the issue of the iodine tablets and so forth.
How could we forget? We were under the table with the iodine tablets.
Let us consider this for a moment. Does the committee remember the anthrax powder throughout the country? The State was obliged to collect all that powder and send it to Great Britain because at the time we did not have a level 4 laboratory to examine it. Not every Garda will be an expert. Scenarios will arise where the Garda may go into a perfectly legitimate situation and seize everything before it but there may be a perfectly good explanation for it. I am simply making the point that such a person must have the right to argue the case in court and should be alerted to the fact the material is being taken. Such a person must be able to exercise their rights and object in the courts. This is all we are saying and this is why I saw the McDowellism coming through in the amendment. The world has turned on its head. Here am I arguing the civil liberties side of the equation.
He was occasionally good. It was rare.
He was very good.
Can I ask a question?
Yes.
If a garda believes it is intended that the material be used in a hostile manner should he or she not pre-emptively forfeit the material?
That suggestion was in my amendment.
Does a garda need a court order for that? If a Garda superintendent believes it is intended to use the material in a hostile manner can he or she pre-emptively forfeit or seize that material-----
-----even though no crime has been committed? In a case where the person who has the material does not intend-----
The person can make an appeal later on.
The person can argue the garda made a mistake and he or she has perfectly legitimate reasons for having the material and wants to apply to the court for its return. The amendment tabled by Deputy Higgins suggests we do not tell the person the material is being seized.
I was trying to sharpen the invigilation. I am happy to move on.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Section 12 agreed to.
NEW SECTION
I move amendment No. 4:
In page 7, before section 13, to insert the following new section:
13.—The schedule to the Bail Act 1997 is amended by the insertion of the following paragraph after paragraph 36 (inserted by section 23 of the Criminal Justice (Psychoactive Substances) Act 2010):
"Offences relating to biological weapons
37. An offence under section 2 or 3 of the Biological Weapons Act 2010.”.
The principle offences under the Bill will attract an unlimited fine and a custodial sentence of up to life imprisonment or both on conviction on indictment. This penalty level puts the offences into the category of arrestable offences which are then automatically subject to various powers under general criminal justice legislation. I have consulted the Minister for Justice and Law Reform, Deputy Dermot Ahern, and in our opinion these offences should also be treated as serious offences for the purposes of the Bail Act 1997, section 2 of which permits a court to refuse bail to a person charged with a serious offence if refusal is reasonably considered necessary to prevent the commission of another serious offence by that person. A serious offence means an offence listed in the Schedule to the Bail Act which is punishable by five years' imprisonment or more. Accordingly, the new section will add the principal offences under the Biological Weapons Bill to the Schedule to the Bail Act 1997.
Amendment agreed to.
Section 13 agreed to.
Section 14 agreed to.
TITLE
Amendments Nos. 5 and 6 are related and may be discussed together.
I move amendment No. 5:
In page 3, line 5, to delete "FURTHER".
I was provoked to table amendments Nos. 5 and 6 by the speech of the Minister of State. The Title suggests it is a Bill "to give further effect". I ask for an explanation on the use of "further." In preparing the Bill most references to the convention before now were indirect. I could not find a direct reference to it.
When the Minister of State stressed in his speech that the Bill would give further effect to the 1972 convention I felt it was something of a flourish. There was nothing substantive to give evidence to that view. In many cases if people want to retain a flourish I will not stay awake thinking about it but it is the kind of thing which should not be done. If the Bill is giving effect to the 1972 convention for the first time it should state that. There are real breakthroughs in this area and we should celebrate the moment.
Can I revert to this matter on Report Stage? I want to reflect on it further.
That is good.
I am informed it is included in Firearms Act 1925, as amended.
That is a very good reason for examining the matter again on Report Stage.
Is amendment No. 5 withdrawn?
It will be tabled again on Report Stage.
I understand that.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Title agreed to.
I thank the Minister and his officials for attending. I wish everyone a very happy Christmas and a peaceful and prosperous new year, one which is a little more prosperous than this year.