Michael D Higgins (Galway West, Labour)

Tá áthas orm go bhfuil seans agam an reachtaíocht tábhachtach seo a phlé. Tá clú muintir na hÉireann agus Rialtas na hÉireann ag feabhsú toisc go bhfuil reachtaíocht den leithéid seo á thabhairt isteach againn. I very much welcome the legislation. The Labour Party sees it as part of an ethical foreign policy and for that reason we support it, as we did taking a strong position on cluster munitions and, prior to that, landmines legislation. I am grateful for the Minister of State's detailed speech. I wish to make a number of points which I hope will be of assistance. As the previous speaker said, there are points to which we may return on Committee Stage.

The first thing that is important is the status of the convention itself. The Minister of State in his speech placed the Bill alongside other legislation which seeks to vindicate the ban on cluster munitions and the ban on landmines. It is not pedantic to say that the introduction to the Minister of State's speech suggests that this legislation will give further effect to the 1972 convention. With respect - I will not go into it now - I suggest that this is a flourish because I am not aware of previous legislation that addressed the 1972 convention except indirectly. It has not been addressed by way of direct legislative reference. That is a very minor point in the context of welcoming the Bill. It is a point to which I will return.

One of the difficulties for the public understanding of the Bill is that people are rightly proud of this country's role in the non-proliferation of nuclear weapons. It was a very fine moment in Irish diplomacy and activity and it is rightly recorded as such. However, one of the difficulties about the convention, which also arises in terms of the biological weapons convention, is the atmosphere of bad faith among some of the signatory nations. The problem arose with the nuclear ban, for example, that the signatories under major sections of the treaty were required to destroy nuclear weapons but they did not do so. They also happened to be permanent members of the United Nations Security Council. One was left, in the most troublesome days of the reviews that took place every five years of the non-proliferation treaty, with the fact that the treaty was now concerned with proliferation only and not with the elimination of nuclear weapons. It is equally the case in regard to the biological weapons convention that some of the signatories are in possession of biological weapons but they are not destroying them. Therefore, the concentration in the previous reviews of the biological weapons convention has once again retreated to proliferation and non-proliferation.

That is a significant point for the public to understand, that international law is weakened when in fact the most powerful and also the most permanent members of the Security Council do not feel bound by the full text of the convention in terms of getting rid of those kind of weapons, but that the convention is for lesser and newer players. I make this fundamental point because when I make proposals to the Labour Party on foreign policy I have placed the emphasis on it being an ethical foreign policy. I have a real problem with the diplomatic interpretation of obligation. That is a point to which I will return.

Another issue that arises is that not only have some countries been in possession of those weapons but they have used them. Again, that has become a matter of contention in regard to detail. I accept the reports that indicate a considerable volume of weapons being held by Russia, for example, a signatory nation, that might have been used in Chechnya. I am sure they were used in Fallujah in the last Iraq war. That raised a significant issue to which I will return in the context of the Bill, namely, whether the possession of biological weapons will be an offence under the legislation. I would like clarification on the issue.

This also arises in regard to another matter that is very important on transmission. Is the possession of the weapons themselves now an offence because one could qualify that by saying the possession of biological weapons for a hostile purpose is the offence? Again, one might also say that if one is trying to establish the facts on why a biological weapon is in the possession of a person does one have the right to seize it. Having seized it, does the person apprehended have to establish possession of it for a non-hostile purpose? All of those issues remain for clarification in the text of the Bill.

I welcome the extra-territorial reach of the Bill, which is very good. On the question of compliance, the Minister of State correctly outlined how the Bill fits in with other legislation. Later in the Minister of State's speech, he mentioned the existence of an interdepartmental committee. It would be valuable when he is replying on the legislation if he gave some details of the national compliance mechanism. I cannot see the detail of that in the legislation or in his speech, although I may have missed it. Will the Department of Enterprise, Trade and Innovation have responsibility for chemical matters, while the National Radiological Protection Agency will be responsible for nuclear matters? This is an issue that can be clarified as we move on, I prefer to concentrate on the broad features of the Bill on Second Stage.

The use of Irish airspace is interesting. In February 2010, on the Order of Business one day I asked about the Air Navigation Acts 1978 and 1988. In response to my Bill, which would have changed the provisions for the transmission of materials through Irish airspace and would have allowed for the boarding of aircraft if there were suspicions, the Government stated that it would prepare its own legislation and that it had appointed a subcommittee of the Cabinet to that end. When I last investigated this, I found its last meeting was in 2009. As Deputy Barrett said, we should mention transmission through Irish airspace, but this Bill falls short of including new rights of surveillance and establishing of fact.

We were brought all round the bushes about Shannon Airport being used at the time of the Iraq war. The onus was placed on the civilian to establish that there was something offensive on board an aircraft. I met two senior gardaí who suggested the legislation involved was that covering defence of the right of entry to one's home. We left that aside and I then went back to the Air Navigations Acts 1978 and 1988 but there was no capacity to establish a matter of public concern. This also arose during the Council of Europe investigation and the investigation by the subcommittee of the European Parliament. We completed a questionnaire that we sent back to the Secretary General of the Council of Europe in which we referred to the legal capacities of our legislation but we omitted to say that we had decided not to use them. Even if we had, would they have been sufficient? This should have been an opportunity to address the issue of air transport and the right of surveillance.

The Minister of State may be tempted to reply but I urge him to resist the temptation and look at the text of the Bill. It goes a certain way, referring to the offence of possession and to transmission. It also has extra-territorial application to citizens, members of the Defence Forces and to Irish registered planes and ships, and expressly prohibits the transportation of biological warfare materials through Irish airspace. It makes the possession of a biological weapon or agent a criminal offence, although I have raised issues of interpretation of that related to intention, which we might tease out on Committee Stage.

The Bill makes the possession of a biological weapon or agent a criminal offence, which could implicate individuals of whatever nationality who are in possession of biological weapons on planes parked on an Irish apron. That is stronger than section 10 of the Criminal Justice (Terrorist Offences) Act but it does not amount to a stronger ban on transshipment or provide greater search and prosecutorial powers to those who may suspect that biological weapons are being moved through Irish airspace or ports. Put simply, civilians are still as impotent in this as they were before and when the issue arose of the appalling extra-legal abuse of international law that was the Iraq war.

The way out of this would have been to include an agreed passage that came out of the Cabinet subcommittee on the Air Navigation Acts 1978 and 1988. I am not drafting the legislation; perhaps there is other legislation that could be amended.

I turn to the international atmosphere in which this convention is being discussed. We must make our gains in an atmosphere of bad faith and the abuse of position by some of the major power holders, particularly at Security Council level. We should not regard this as anything other than abuse of international law and influence within diplomacy. I had the greatest sympathy for those Irish personnel who have been going to the review committees on the convention. I must restrain myself from getting sidetracked into the serious weaknesses in the non-proliferation treaty and the US-India agreement on nuclear weapons. It completely discredited the powerful work by the New Agenda Group. Ireland had to undertake a diplomatic flurry to justify its being the second last country standing before it was forced to capitulate.

Since 1991, the verification procedures for the biological weapons convention have included the use a panel of experts. This mechanism of verification is not very satisfactory. Fallujah is an example of the abuse of chemical weapons. The law was confused when people claimed such weapons could be used if they were necessary part of a retreat from a conflict area. Another argument was made that if care had been taken to remove civilians from an area, anyone who remained was a combatant. There was also the question of particular flares being used for destruction instead of for the clarification of a conflict zone. At the end of the day, the thing that mattered was the damage done to people. Where biological weapons are concerned, a number of important medical bodies, including an authoritative group from Canada, have investigated the effects on children in southern Iraq of weapons that might have been used as biological weapons.

Deputy Barrett referred to an interesting matter, namely, that the mechanism through which countries may make a formal complaint has not been used. It does not serve the Security Council's mechanisms well if major countries produce lists of allegations against countries they believe are in breach, yet do not follow up with formal complaints. The Minister of State might help me if he has been advised, since I suspect a trade off is involved. A permanent member of the Security Council that publishes a list from its domestic department will not make a formal complaint in the full knowledge that another permanent member will take the exact same road. In turn, this trade off undermines the compliance mechanisms at international level.

Another matter arises in this respect, namely, the interesting question of how compliance is managed internationally. The Minister of State might address it. He stated, "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." He also stated, "The Biological Weapons Bill will create specific offences relating to the use, production and possession of biological weapons." How will the compliance mechanism work at home and internationally?

The Minister of State referred to something about which I am unsure. He stated:

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.

I hope the Minister of State does not take what I say personally, but this is a selective set of quotations. One needs to take care when ascribing substance to the question of the allegations of Soviet defectors in the early 1990s. I am familiar with the case. The question of Iraq relates to the question of inspections and so on. What was far more dangerous was the destruction of parliamentary credibility by those who made false allegations, not only about biological weapons, but about weapons of mass destruction in general.

I wish to make an interesting comment lest I forget. I was invited to visit the head office of one of the major embassies on Mespil Road with a number of other Deputies, including the late Tony Gregory. We were shown a file produced in London that contained what were supposed to be aerial photographs of weapons of mass destruction on the move in Iraq. One looked like a photograph of an articulated truck but was described to all of us present as being a chemical laboratory on the move. To my horror I saw the same file in the hands of Colin Powell at the United Nations Security Council. He read out that rubbish.

While I welcome this legislation, if we are to have respect at home and internationally for wonderful conventions that seek to preserve humanity, the fact that such investigation and compliance mechanisms could be degraded so comprehensively by the abuse of alleged intelligence sources in parliament by a prime minister, as unfortunately occurred in the UK's case with tragic consequences for individuals and the parliamentary process, does not help the law, politics or the peaceful thrust of the conventions that have their origins in the UN. It is the best prospect we have of being a forum to advance peace.

The Minister of State referred to a matter I have addressed when he stated, "The Biological and Toxin Weapons Convention is a hybrid instrument of international humanitarian law and disarmament and non-proliferation". When he replies, he might say whether this is an opportunity to examine how we might be innovative in terms of implementation and compliance mechanisms, taking into the account the successes and setbacks experienced in the other parts of the hybrid.

The question of whether review conferences are to rely on the verification mechanisms to which I referred is interesting. The Minister of State might have anticipated another point following the production of my Private Members' Bill some time ago. Working as I was with the limited resources available to me, I concentrated on the right of citizens to answer a concern. I was not referring to putting together a maverick group, as it was described, that could ask to go aboard every aeroplane that landed. Rather, this would have occurred only where a concern had been well established internationally. In the case of Shannon Airport, we had in mind flight plans and other matters that were of concern to the most responsible groups in different countries. However, we found ourselves obstructed in every way. A greater impetus might have been given to national legislation after the last review conference in 2006. I am not familiar with the debate which took place then but I understand that at that conference national governments were urged to bring forward national legislation of compliance.

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