Dick Roche (Wicklow, Fianna Fail)

I move: "That the Bill be now read a Second Time."

The principal purpose of this Bill is to make further provision in domestic law for the State's obligations under the 1925 Geneva Protocol and the 1972 Biological and Toxin Weapons Convention, as well as relevant elements of United Nations Security Council Resolution 1540 of 2004. The Geneva Protocol banned the use in war of poisonous gases, as well as bacteriological methods of war. Ireland acceded to the protocol in 29 August 1930. The protocol was supplemented in much greater detail by the 1972 Biological and Toxin Weapons Convention and the 1993 Chemical Weapons Convention. Most poisonous gases are what today are referred to as chemical weapons and their development, production, stockpiling and use are prohibited by the Chemical Weapons Convention, which also requires the destruction of any existing chemical weapons. Extensive provision for the State's obligations under that convention was made by the Chemical Weapons Act 1997.

The Biological and Toxin Weapons Convention prohibits the use, production, development, stockpiling and transfer of biological weapons, extensively supplementing the 1925 protocol in so far as it applies to biological weapons. It was signed and ratified by Ireland in 1972 and entered into force on 26 March 1975. Resolution 1540 was adopted by the United Nations Security Council in the aftermath of the 9/11 attacks in the United States in 2001 with the primary aim of preventing weapons of mass destruction, including biological weapons, falling into the hands of terrorist organisations and other non-state actors. The Biological Weapons Bill will create specific offences relating to the use, production and possession of biological weapons.

The use of poisonous and asphyxiating substances as weapons has been prohibited since before the First World War, although unfortunately that did not stop some countries from using poisonous gases during that war. In 1925, the Geneva Protocol reasserted its prohibition and extended it to the use of biological methods of warfare. However, the 1925 protocol contained a number of weaknesses. Most importantly, it prohibited only the use of gases and bacteriological methods of warfare, but did not ban their development, production or stockpiling. Also problematic was the fact that many states party to the protocol reserved the right to retaliate in kind if attacked with prohibited weapons. Despite the weaknesses of the Geneva Protocol, however, the use of biological weapons during the Second World War was limited.

During the Cold War period, an increasing number of countries developed biological warfare research programmes, the largest of which were conducted by the then Soviet Union and the United States. Anthrax, smallpox and plague were among the diseases researched for use as weapons. It was not until the late 1960s that attempts were made to control this type of biological weaponry. In 1969, the then US President Nixon announced the unilateral dismantlement of the US offensive bio-weapons programme. Shortly thereafter negotiations on a new global instrument to supplement the 1925 Geneva Protocol began at the conference of the committee on disarmament in Geneva. These negotiations resulted in the conclusion in 1972 of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons.

Today, no state acknowledges that it possesses biological weapons or that it has a programme to develop such weapons. The stigma attached to the use of such weapons and their prohibition under the convention have been strong deterrents. This has not, however, completely allayed concerns with regard to bio-weapon development by states. For instance, it was alleged in the early 1990s, by Soviet defectors, that the former Soviet Union had conducted a vast, clandestine biological weapons programme. Iraq, also a party to the convention, was found in 1995 to have had a considerable undeclared biological warfare programme.

There are several reasons the greatest threat arising from biological agents today may come not from states but from terrorists or other non-state actors. Biological agents are relatively cheap to develop and produce, although they are much more difficult to create as weapons and deploy. Facilities for researching and producing biological agents are easier to hide than the facilities for producing other weapons of mass destruction, such as nuclear weapons. Furthermore, the equipment involved in the production of biological agents has many legitimate civilian uses. Fortunately there have been very few instances of biological weapons use by non-state actors, the most notorious and recent being the anthrax attacks in the Washington DC area in 2001. In September and October of that year, several cases of anthrax, which when inhaled and left untreated has a fatal outcome in humans, broke out. Letters containing anthrax spores were posted to several news media offices and to the offices of two members of the United States Senate. The attacks killed five people and infected 17 others, demonstrating how easy it is to cause mayhem with such weaponry. There was widespread fear and panic which crippled the postal service and forced the evacuation of federal buildings, including Senate offices and the Supreme Court. Sales of gas masks rocketed.

The Biological and Toxin Weapons Convention is a hybrid instrument of international humanitarian law and disarmament and non-proliferation and it was the first multilateral treaty banning the production and use of an entire category of weapons. The convention bans the development, production, stockpiling, acquisition and retention of microbiobrial or other biological agents or toxins, in types and in quantities that "have no justification for prophylactic, protective or other peaceful purposes". The convention currently has 163 states parties and 13 other signatories. The most noteworthy states currently not party to the convention are Israel, Egypt and Syria, although the latter two are signatories and, therefore, under the international law of treaties, are obliged to refrain from acts that would defeat the object and purpose of the convention.

Review conferences are held every five years to review the operation and implementation of the convention, taking into account new and relevant scientific and technological developments. A 2001 draft verification protocol to the convention would have required states parties to declare relevant facilities and submit to inspections but this was rejected by the US Administration at the time and the negotiations on the protocol were subsequently discontinued. However, the sixth review conference held in Geneva in 2006 established the implementation support unit, ISU, to assist states parties with the implementation of the convention. At the seventh review conference in 2011, states parties to the convention will review the operation of the ISU.

Fortunately, biological weapons have only rarely been used. Their development, production and deployment entail numerous and serious hazards for those trying to use them. Nevertheless, it has long been recognised that if these difficulties can be overcome biological weapons have the capacity to kill thousands of people and to sow hysteria and panic in the general population. A biological weapon delivers to its target a biological agent, which causes infection or allergy, or the toxic product of a biological agent called a "toxin" which causes poisoning. Biological agents are usually either bacterial or viral. Biological agents may also produce toxins. Although toxins are not capable of replicating themselves, they are nevertheless poisonous. Botulism, which is produced from the bacterium that grows in improperly handled or prepared meat products, and ricin, which occurs in the seed of the castor oil plant, are examples of virulent toxins. Toxins also occur everywhere in nature, for example, the venom of a spider or a snake.

Accordingly, the negotiators of the convention prohibited the production and use of biological agents by reference to the purpose or intent of the producer or user. The prohibition laid down therefore 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 main provisions of the convention are as follows: Article I defines the scope of the convention's prohibition, the so-called general purpose criterion. This includes all microbiobrial and other biological agents or toxins and their means of delivery. Subsequent review conferences have reaffirmed that the general purpose criterion encompasses all future scientific and technological developments relevant to the convention. Biological agents and toxins themselves are not prohibited; only their purpose is.

Article II requires each state party, no later than nine months after entry into force of the convention, to destroy or divert to peaceful purposes all agents, toxins, weapons, equipment and means of delivery prohibited by Article I. Article III prohibits states parties from transferring or otherwise encouraging other states or organisations to acquire any of the agents, toxins, weapons, equipment or means of delivery prohibited by Article I. Article IV requires states parties to take any necessary national measures to prohibit and prevent the misuse of biological agents, toxins, weapons, equipment and means of delivery within their territories. This will require states parties to adopt or adapt policies and domestic laws where necessary.

United Nations Security Council Resolution 1540 is a measure adopted by the Security Council under chapter VII of the UN charter to maintain or restore international peace and security and is binding on all member states of the UN. The resolution affirms that the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security. Its purpose is to supplement the Nuclear Non-Proliferation Treaty and the Biological and Chemical Weapons Conventions and its focus is, in particular, the risk posed by non-state actors, including terrorists, of acquiring and using nuclear, chemical and biological weapons, their means of delivery and related materials. To assist the Security Council in monitoring implementation of the resolution, the council established the 1540 committee. The 1540 committee, to which states are required to make regular reports on implementation, maintains regular contact and dialogue with all UN member states, including Ireland. The resolution sets out a number of distinct areas in which states are required to take action to prohibit and prevent the proliferation of nuclear, chemical and biological weapons. In particular, states are required to adopt what is termed "appropriate effective laws that prohibit any non-state actor to manufacture, acquire, possess, develop, transport, transfer or use" this range of weaponry.

To better co-ordinate implementation of all relevant international obligations by Departments and State agencies in Ireland, the Government established the interdepartmental committee on non-proliferation of weapons of mass destruction in January 2010. The committee is responsible for co-ordinating implementation of the State's obligations arising under international conventions, UNSCR, European Union law and various policy frameworks. These obligations include those arising under the Biological and Toxin Weapons Convention, the Chemical Weapons Convention and the Nuclear Non-Proliferation Treaty. The interdepartmental committee also addresses other issues in the non-proliferation area, as necessary. It is chaired by a senior officer in my Department and, in the case of matters relating to export control regimes falling under its remit, by an official of the Department of Enterprise, Trade and Innovation. The Departments of Defence, Environment, Heritage and Local Government, Health and Children, and Justice and Law Reform, as well as the Defence Forces, Garda Síochána, Revenue Commissioners, the Radiological Protection Institute of Ireland, the Health and Safety Authority and various other agencies are also involved.

Ireland ratified the Biological and Toxin Weapons Convention in 1972. At that time, the view was taken that the obligations assumed by the State under the convention, in particular the obligation under Article IV "to take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention" of weapons was adequately provided for under existing domestic law, principally the Firearms Acts. However, following a review of the law carried out in the context of Ireland's participation in the Proliferation Security Initiative and, subsequently, the adoption of Security Council Resolution 1540, it has been decided to create specific biological weapons offences. This will remove any doubt regarding the feasibility of future prosecutions of persons for activities involving biological weapons. There is extensive provision in law relating to chemical weapons and nuclear materials, in particular the 1997 Chemical Weapons Act, the Radiological Protection Acts and the Containment of Nuclear Weapons Act 2003.

Biological agents occur widely in the natural environment. Many of them are harmless but others have the potential to cause ill-health. There are also workplaces, such as laboratories, where work involving biological agents is carried on intentionally and for perfectly legitimate purposes.

A considerable body of law sets out the minimum requirements for the protection of workers from the health risks associated with biological agents in the workplace. This is to be found in EU bio-safety law, the Safety, Health and Welfare at Work Act 2005 and the Health, Safety and Welfare at Work (Biological Agents) Regulations 1994, as amended.

The Bill before the House will not affect in any way legitimate activities involving the intentional or coincidental production or use of biological agents. On the contrary, the Bill will apply only to activities whose purposes are hostile. It will expressly prohibit, among other acts, the production, acquisition, possession, development, transport, transfer or use of biological weapons as required by the terms of the 1925 Geneva Protocol on Poisonous Gases, the 1972 Biological and Toxin Weapons Convention and Resolution 1540.

Section 1 of the Bill defines a number of key terms in the Bill, in particular the terms "hostile purpose" and "prohibited weapon". Section 2 makes it an offence to develop, produce or use a biological agent or toxin for a hostile purpose, or to stockpile, acquire, possess, retain - Deputy Higgins will be interested in this - or transfer to another purpose a biological agent or toxin for a hostile purpose. It also makes it an offence to develop, produce, use, stockpile, acquire, possess, retain or transfer to another purpose a prohibited weapon. It will also be an offence to attempt to do any of these things. In other words, it would be an offence to attempt to transfer such a weapon through our national territory.

Section 3 creates offences of prohibited acts when committed outside the State in specific circumstances, when committed on ships and aircraft registered in Ireland, or by members of the Defence Forces, citizens of Ireland or an Irish body corporate.

Section 4 sets out the penalties to which a person guilty of an offence under sections 2 or 3 will be liable. The maximum penalty, on summary conviction, will be imprisonment for 12 months and a fine of €5,000, or both. For conviction on indictment, the maximum penalty is life imprisonment, a fine or both, a potentially very severe penalty that reflects the seriousness of the offence.

Section 5 is a standard provision dealing with evidence of an accused person's Irish citizenship. Section 6 is also a standard provision that prevents a person being prosecuted in Ireland in respect of an offence for which they have already been tried in another country.

Sections 7 and 8 provide that where a person develops, produces, uses, stockpiles, acquires, possesses, retains or transfers to another person a microbial or other biological agent, or toxin, in prescribed circumstances, there is a presumption that he or she has intended to do so for a purpose prohibited by the convention unless there is a reasonable doubt. Section 9 is a standard provision to ensure that bodies corporate do not avoid responsibility for conduct prohibited to individuals.

Section 10 provides that anything seized and retained in relation to a conviction under the Act may be forfeited to the State and shall be disposed of as the Minister may direct. This provision is necessary to ensure that material seized during the investigation of a suspected offence is not returned to a claimant under the Police (Property) Act 1897 but is sent for destruction. Section 11 sets out the procedure for forfeiture of any biological agent or toxin regardless of whether a conviction has been secured in a given case. Section 12 provides for forfeiture of related fixtures, such as buildings used for the purposes of producing a biological weapon.

Ireland has been, for many years, a leading advocate for greater international co-operation in the fields of disarmament and arms control. In my view, there are more than sufficient ways of causing harm to a human being than people investing their time, energy and ingenuity in the development of newer, more deadly weaponry. Ireland has played a leading role in particular in efforts to promote nuclear disarmament and non-proliferation and, most recently, in efforts to prohibit cluster munitions. It is important, therefore, that where we develop international commitments in these areas we also ensure that proper provision is made for them, where necessary, in our own domestic law. When possible gaps are identified, such as in the current case, it is just as important that we move to fill them. For this reason I commend this Bill to the House and I look forward to the contributions from Deputies.

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