SELECT COMMITTEE ON THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT debate -
Wednesday, 21 May 2008

Nuclear Test Ban Bill 2006: Committee Stage.

Chairman

The meeting has been convened for the purposes of consideration by the committee of the Nuclear Test Ban Bill 2006. This Bill was referred to the select committee by order of the Dáil on 13 November 2007. I welcome the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Michael Kitt, and his officials to this meeting. I welcome the Minister of State for the first time in his capacity in this Department. We look forward to a successful and productive working relationship between the Minister of State and the committee.

SECTION 1.

Deputy Joanna Tuffy

I move amendment No. 1:

In page 3, line 34, after "text" to insert "in the English language".

This amendment is a drafting amendment to clarify that only the English language text is in the Schedule. As the committee will be aware, the treaty was adopted in six languages, which are set out on page 40 of the Bill. These languages are Arabic, Chinese, English, French, Russian and Spanish. The reason we are moving this amendment is to ensure that it is accurate in terms of that section of the Bill.

Minister of State at the Department of the Environment, Heritage and Local Government (Deputy Michael P. Kitt)

I thank the Chairman for his words of welcome and look forward to working with him and the committee. The Office of the Parliamentary Counsel has advised that the Government cannot accept this Opposition amendment because the language used in the Bill and the treaty in the Schedule to the Bill is English so there is no need to insert the wording "in the English language" in the Bill.

Deputy Joanna Tuffy

It would seem that we are raising a legitimate point. Has the Government received any international advice? How is it transposed in other countries?

Deputy Michael P. Kitt

We accept the advice of the Office of the Parliamentary Counsel. I understand that section 7 of the Official Languages Act 2003 provides that after the enactment of any Act of the Oireachtas, the text thereof shall be printed and published in each of the official languages simultaneously. The simple answer is that we accept the advice of the Office of the Parliamentary Counsel.

Deputy Joanna Tuffy

At this stage, I will withdraw the amendment. I may move it on Report Stage.

Amendment, by leave, withdrawn.

Section 1 agreed to.

SECTION 2.

Deputy Joanna Tuffy

I move amendment No. 2:

In page 4, lines 18 to 30, to delete subsections (5) and (6).

My colleague, Deputy Ciarán Lynch, will expand on the issue we are raising with this amendment. The question I would ask is why it was felt that it would be appropriate to put this provision in for the summary trial of offences in the District Court. It would seem inappropriate to try an offence that serious in the District Court.

Deputy Ciarán Lynch

I will raise a few introductory points on this issue. A fortnight and a week ago, I pointed out that no explanatory memorandum accompanies this Bill. Once again, we do not have an explanatory memorandum accompanying this Bill. I received correspondence from the assistant private secretary to the Taoiseach informing me that an information note on the Bill would be given to members of this committee here this morning. I do not see this available to us either. Perhaps there is some explanation for that but it is unprecedented and certainly unusual for us to be discussing a topic of such importance without there being either an explanatory memorandum, which is the custom for all Bills going through this House, or an explanatory note, in respect of which I was given an assurance by the Taoiseach's office.

In respect of the amendment to hand, given that we are discussing the possibility of a nuclear explosion taking place in this State, the idea that this matter would be brought before a District Court judge beggars belief. We have a situation where even the maximum fine that a District Court can impose is not even the maximum fine as outlined in the Bill itself. This also beggars belief.

On a more serious note, when we look at serious crimes taking place in this State, and I would certainly consider a nuclear explosion to be a very serious crime not just in the action of the explosion itself but in the determining fallout and the associated health and physical difficulties created by fallout, we can see that this is a crime of such significance that it should not be coming before the District Court and certainly should not have a fine of €5,000 placed upon it. When referenced against other crimes, one can see that there is no summary jurisdiction for the District Court to try minor offences because there is no such thing as a minor offence for murder, manslaughter, rape, sexual assaults, riot or violent disorder.

I would certainly see the creation of a nuclear explosion as something more serious than rioting or violent disorder and propose that we delete this absurd provision in the Bill as it does not take cognisance of the magnitude of the issue with which we are dealing.

Deputy Michael P. Kitt

The purpose of subsections (5) and (6), is to allow for a summary prosecution of a minor offence under the section and to have an option of District Court prosecution. This is a standard provision in all legislation involving a criminal offence. Each offence can be considered minor or major and it will be for the courts to determine, on the basis of the evidence, to which category an offence belongs. The key issue is to provide for all possible offences and the Parliamentary Counsel has advised that the Government cannot accept this amendment.

Deputy Ciarán Lynch

I am still awaiting an explanation as to why we do not have an explanatory note for the Bill this morning. I will return to the substantive issue once I get an answer to that question.

Deputy Michael P. Kitt

I was not aware of that and will ensure that it is sent to all Members.

Deputy Ciarán Lynch

On a point of order, the idea that we will get an explanatory note on such an issue after the meeting, when we should have it before us while discussing the issue on Committee Stage, when votes will be taking place, is another example of the slipshod manner in which this Bill has come before the House. The Bill was first laid before the House in 2006 and the fact that we have not had an explanatory memorandum since that date is unacceptable. Furthermore, the fact that we do not even have an explanatory note today is even more unacceptable and not in keeping with the orderly running of the business of this committee.

To return to the issue at hand, when this Bill was discussed previously, the former Minister for the Environment, Heritage and Local Government, Deputy Dick Roche, gave an assurance that this is a standard provision in all legislation involving criminal offences but that is not actually correct. It is not a standard provision. There is legislation covering a series of crimes such as murder, rape, manslaughter, sexual assault, riot and violent disorder that do not contain this so-called standard provision. Is the Minister of State arguing that he can consider a nuclear detonation in this State as a minor offence? With respect, if a nuclear explosion were to happen in this State, I would not be too worried about a fine of €5,000 or imprisoning a person because there would not be a bank or prison left standing. I ask the Minister of State to refer to his officials and clarify the issue because he is incorrect in stating that this is a standard provision. It is no such thing, particularly when dealing with an offence of such magnitude.

Deputy Michael P. Kitt

The Parliamentary Counsel has advised the Government that it cannot accept the amendment. I reiterate the point that we are only referring to minor offences that can be tried in the District Court. As the Deputy rightly said, if it is a major offence, it is a different matter.

Deputy Ciarán Lynch

Can the Minister of State describe a minor nuclear explosion that would only warrant a €5,000 fine or one year in prison?

Deputy Michael P. Kitt

An example of a minor offence would be providing false or misleading information to the authorities. I would regard that as a minor offence.

Deputy Ciarán Lynch

The Bill states that "The District Court may try summarily a person charged with an offence under this section" but the Bill deals with the detonation of nuclear bombs in this State. It is not the case that this is a standard provision and I suggest that the Minister of State is acting incorrectly in accepting the advice of the Parliamentary Counsel. The amendment we are discussing allows a judge to use discretion regarding the sentence or fine he or she wishes to impose. The idea of putting a ceiling on such fines or terms of imprisonment is absurd and ridiculous. By accepting the Labour Party's amendment, we would create the flexibility that already exists for other offences which allows judges to use their discretion. The proposal of such a ceiling and the Minister of State's explanation of the nature of a minor nuclear offence do not stand up to scrutiny.

Deputy Michael P. Kitt

We are talking here about testing weapons. We are not talking about nuclear bombs. It is very clear from section 2(4)(b) that imprisonment for life is an option for the courts. The court can impose a sentence of life imprisonment if it sees fit. That is stating very clearly that the offence is a serious one.

Deputy Ciarán Lynch

The Minister has just made my case for me. The Bill states that "imprisonment for life or such lesser term as the court may determine" is an option for offenders. There is, therefore, no need for subsections (5) and (6).

Deputy Michael P. Kitt

There is also the issue of accessories and the example I gave earlier of supplying false or misleading information is relevant here. As with all legislation, there are minor and major offences involved. The Parliamentary Counsel has given its advice and perhaps we should agree to disagree.

Deputy Ciarán Lynch

With respect, we are both operating without the aid of an explanatory note and some people may have only read the Bill for the first time this morning. Nevertheless, I reiterate the point that the phrase "imprisonment for life or such lesser term as the court may determine" would suggest to any reasonable person——

Chairman

What section is the Deputy referring to?

Deputy Ciarán Lynch

I am referring to section 2(4).

Chairman

Where exactly is the phrase?

Deputy Ciarán Lynch

It is on page 4, section 2(4). The point I am making is that subsection (4) covers the aspects of the legislative issues that arise and negates the need for subsections (5) and (6). The Minister of State discriminates between nuclear weapons and nuclear bombs and I ask him to provide definitions of same.

Deputy Michael P. Kitt

Let us be clear, I did not make that distinction but spoke about testing. I did not make a distinction between weapons and bombs.

Deputy Ciarán Lynch

The Minister of State spoke about testing weapons and not testing bombs. Can he define——.

Deputy Michael P. Kitt

No, I am talking about nuclear testing. I wish to make that very clear. We are dealing with the Nuclear Test Ban Bill 2006.

Deputy Ciarán Lynch

What would be tested, if not a nuclear bomb?

Deputy Michael P. Kitt

All devices to do with radiation. The Radiological Protection Institute of Ireland would deal with these matters.

Chairman

What about medicine?

Deputy Michael P. Kitt

Yes, anything to do with radiation, radiological protection and so forth.

Deputy Ciarán Lynch

With respect, the Bill is called the Nuclear Test Ban Bill. It derives from a UN article to which the Irish Government has signed up. It has nothing to do with X-ray departments or such like. It is concerned with the detonation of nuclear bombs and the testing of nuclear explosives. Ireland, when it passes this Bill, will have ratified the UN article and will be an international signatory to a declaration that we will not test or detonate nuclear bombs in this State. Given that this Bill will also be dealt with in the Dáil, I ask the Minister of State to clarify the difference between testing a nuclear weapon and testing a nuclear bomb.

Deputy Michael P. Kitt

We do not have the weapons anyway so this discussion is hypothetical. We are talking here about testing. The Deputy is referring all morning to bombs. I was just making the point that there are other weapons and the issue of radiation is also salient.

Deputy Ciarán Lynch

I will return to the point once more. Can the Minister of State describe the type of nuclear weapon that could be detonated that would merit only a year in jail or a fine of €5,000? Where on the weapons list could we find such an item?

Deputy Michael P. Kitt

It is the accessory to the process that I am referring to in the context of major or minor offences.

Deputy Ciarán Lynch

For further clarification, the accessory to the detonation of what type of bomb or nuclear device would warrant being given only a year in jail or a fine of €5,000?

Deputy Michael P. Kitt

The person could be an accessory to a minor offence, and the major offence is also covered. By leaving in those sections we are clarifying in more detail what is involved in the question of minor or major offences.

Deputy Ciarán Lynch

I congratulate the Minister of State on his recent appointment and hope to have a fruitful working relationship with him in the next number of years, but we are not getting off to a great start this morning.

To cut straight to the chase on the point he is making, it appears that what happened was that a certain level of cut, copy and paste was done in this respect and this piece of writing found its way into the Bill, which would not have found its way in if we were talking about rape, murder or manslaughter. I understand how it could have happened because people who work in the Bills Office are very busy. My father has a saying that, if one wants to get out of a hole, the first thing one must do is put down the shovel. The Minister of State might put down the shovel in this respect and delete this wording from the Bill.

Chairman

Is the amendment being pressed?

Deputy Ciarán Lynch

Yes.

Amendment put.

The Committee divided: Tá, 5; Níl, 7.

Tá

• Bannon, James.
• Hogan, Phil.
• Lynch, Ciarán.
• McCormack, Pádraic.
• Tuffy, Joanna.

Níl

• Cregan, John.
• Cuffe, Ciarán.
• Fitzpatrick, Michael.
• Fleming, Seán.
• Kelly, Peter.
• Kitt, Michael P.
• O’Sullivan, Christy.

Amendment declared lost.

Section 2 agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Deputy Joanna Tuffy

I refer to the Radiological Protection Institute of Ireland. With this additional responsibility, will extra resources be provided to the institute?

Deputy Michael P. Kitt

The treaty has not come into force, so no extra staff are needed until that happens.

Deputy Joanna Tuffy

Are there plans to provide extra staff at that stage?

Deputy Michael P. Kitt

If there is a need for extra resources, we will consider it at that stage.

Deputy Joanna Tuffy

Would that include staff?

Deputy Michael P. Kitt

Yes.

Question put and agreed to.

NEW SECTION.

Deputy Michael P. Kitt

I move amendment No. 3:

In page 4, before section 4, to insert the following new section:

4.- A notice or other document under this Act shall be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.”.

This amendment creates a new section 4 to provide for one or more valid modes of service of a section 10 notice which is a notice in writing to oblige a person to provide information or documentation by such methods as delivering it to the person, leaving it at the address at which the person ordinarily resides, sending it by pre-paid registered post or, in the case of a company, that it shall be deemed to be ordinarily resident at its registered office.

Amendment agreed to.

Section 4 agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Deputy Joanna Tuffy

This section refers to an international inspector. There is a definition of an "international inspector" in the definitions section which refers one back to this section. This section also refers to an authorised officer but there is no definition of same in the definitions section. Should a definition of an "authorised officer" be included?

Will all inspectors be international inspectors, including Irish ones? Does this section make provision especially for an international inspector? Will there be other inspectors who are not international inspectors or are all inspectors international inspectors, including Irish ones?

Deputy Michael P. Kitt

What was the first question?

Deputy Joanna Tuffy

I asked about the definition of an "international inspector". An international inspector is defined in the definitions section as "a member of an inspection team in respect of whom a certificate issued under section 4" which will obviously have to be amended as well. That definition does not make it very clear what an international inspector is. There is no definition of an "authorised officer". Are all the inspectors international inspectors?

Deputy Michael P. Kitt

The interpretation section states that an international inspector means "a member of an inspection team in respect of whom a certificate issued under section 4".

Deputy Joanna Tuffy

I appreciate that but that does not define it. It simply refers one back to the section. There is no definition of an "international inspector" in section 4. Will inspectors only be international inspectors or will there be Irish ones?

Deputy Michael P. Kitt

I will take it at face value and that international means international, so that would cover all inspectors. The authorised officer is mentioned in the interpretation section. It refers to a person appointed by the Minister under section 7.

Deputy Joanna Tuffy

I am sorry. I did not spot that.

Deputy Phil Hogan

Ultimately, who will make the decision if one arises from an international inspection? Will the Minister make the decision?

Deputy Michael P. Kitt

The International Atomic Energy Agency will make the decision.

Question put and agreed to.

Section 6 agreed to.

SECTION 7.

Deputy Michael P. Kitt

I move amendment No. 4:

In page 6, between lines 12 and 13, to insert the following subsections:

"(4) The Minister may revoke the appointment of an authorised officer made by him or her under this section.

(5) The National Authority may revoke the appointment of an authorised officer made by it under this section.".

I propose this amendment to allow for the revocation of the appointment of an authorised officer which is an appropriate power to include in a Bill of this nature.

Amendment agreed to.

Section 7, as amended, agreed to.

Sections 8 to 10, inclusive, agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill."

Deputy Ciarán Lynch

There is a recurring theme in sections 11 and 12 and we propose to table an amendment on Report Stage. What is proposed in section 11 is that: "A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months or both.” I refer to a person in possession of information or a document obtained under the Act. Section 12 refers to a person who knowingly or recklessly makes a statement.

If, for example, we proposed to give somebody with information about the tragedy which occurred in New York on 11 September 2001 a six months prison sentence or to impose a fine of €5,000, it would be seen as absurd and people would call for the resignation of members of this committee. It beggars belief that we are limiting the fine to €5,000 or imprisonment for a term not exceeding six months for a nuclear detonation. We will challenge this at a later stage.

Chairman

Is the Deputy indicating that he will table an amendment on Report Stage?

Deputy Ciarán Lynch

Yes.

Question put and agreed to.

Sections 12 to 16, inclusive, agreed to.

Schedule agreed to.

TITLE.

Question proposed: "That the Title be the Title to the Bill."

Deputy Michael P. Kitt

I have a note on an amendment to the Freedom of Information Act 1997.

Chairman

Is the Minister of State giving me notice of a Report Stage amendment?

Deputy Michael P. Kitt

Yes.

Chairman

The Minister of State has warned us.

Deputy Michael P. Kitt

Can I read the note?

Chairman

Yes.

Deputy Michael P. Kitt

I propose to table a minor technical amendment to the Freedom of Information Act and the Nuclear Test Ban Bill on Report Stage. This amendment to the Third Schedule of the Freedom of Information Act 1997 involves three Acts within my Department's suite of legislation which contains non-disclosure provisions. The amendment arises on foot of the recommendations of the Minister for the Environment, Heritage and Local Government, the Information Commissioner and the Oireachtas Joint Committee on Finance and the Public Service.

The effect of the amendment will be that in the context of deciding on a freedom of information request, the decision will be taken by reference to the Freedom of Information Act, which already contains substantial exemptions and protections, and not the non-disclosure provisions contained in the three Acts. Outside of freedom of information, the non-disclosure provisions will continue to operate. The effect of the amendment will be to increase openness and transparency. This can be achieved by simply inserting a reference to the relevant sections of the three Acts in the Third Schedule to the Freedom of Information Act 1997.

Chairman

That will come by way of amendment on Report Stage. I ask the Minister of State to ensure that the Department officially notifies the Freedom of Information Office of what is proposed on Report Stage. The office is entitled to know an amendment is being made to the Act. It has no way of knowing about it otherwise and it would be unfair to the freedom of information process only to hear about it after the legislation is passed. This is a matter of courtesy. The amendment should not be made without informing the office, which has happened in the past. It would be unsatisfactory if amendments were made to the Act and the FOI office did not know about it until after the fact.

Question put and agreed to.

Chairman

I thank the Minister of State and his officials for attending today's meeting.

Bill reported with amendments.