Jan O'Sullivan (Limerick City, Labour)

I am very pleased to be back in the Seanad after several years.

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, BTWC, as well as relevant elements of UN Security Council Resolution 1540 of 2004. The Geneva Protocol, to which Ireland acceded in 1930, banned the use in war of poisonous gases, as well as bacteriological methods of war. The Protocol was supplemented in much greater detail by the 1972 BTWC 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 weapons.

The BTWC prohibits the use, production, development, stockpiling and transfer of biological weapons. Its scope extends to weapons directed against animals and plants as well as humans. It was signed and ratified by Ireland in 1972 and entered into force in 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 is designed to fill possible gaps in our legislative framework by creating 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 World War I. In 1925, the Geneva Protocol reasserted this prohibition and extended it to the use of bacteriological methods of warfare. However, the 1925 protocol only prohibited the use of gases and bacteriological methods of warfare, and not their development, production or stockpiling. Also problematic was the fact that many states parties reserved the right to retaliate in kind if attacked with prohibited weapons.

During the Cold War, an increasing number of countries, notably the US and Soviet Union, developed biological warfare research programmes. Anthrax, smallpox and plague were among the diseases researched for use as weapons. In the late 1960s attempts commenced to control biological weapons and in 1969, the US announced the unilateral dismantlement of its programme.

Subsequent negotiations on a new global instrument to supplement the 1925 Geneva Protocol resulted in 1972 in the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons, and on their Destruction, otherwise known as the Biological and Toxin Weapons Convention - BTWC for short.

Today no state acknowledges that it possesses biological weapons or has a programme to develop them. Their prohibition, and the stigma attached, have been strong deterrents. While this has not completely allayed concerns of bio-weapons development by states, there are reasons the greatest threat today may come from terrorists or other non-state actors. Since the 1980s there have been huge advances in civilian genetics and biotechnology. Biological agents are relatively cheap to develop and produce, although they are much more difficult to weaponise and deploy. Facilities for researching and producing them are easier to hide than the facilities for producing other weapons of mass destruction, making detection more difficult. Furthermore, the equipment involved would have 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 Washington in 2001. Letters containing anthrax spores were posted to the offices of several news media and two members of the US Senate. Five people were killed and 17 others infected. Widespread fear and panic crippled the postal service and forced the evacuation of federal buildings, including Senate offices and the Supreme Court. The principal suspect later died and no one was ever brought to justice for these offences.

The BTWC is a hybrid instrument of international humanitarian law and disarmament and non-proliferation, and was the first multilateral treaty banning the production and use of an entire category of weapons. It bans the development, production, stockpiling, acquisition and retention of microbial or other biological agents or toxins, in types and in quantities that 'have no justification for prophylactic, protective or other peaceful purposes.' It also bans weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. The disarmament element of the Convention requires states that possess biological weapons or weapons programmes to destroy them or divert them to peaceful uses.

The Convention currently has 163 states parties and 13 signatories. The most noteworthy non-states parties are Israel, Egypt and Syria, although the latter two have signed and are therefore obliged to refrain from acts that would defeat the object and purpose of the Convention. The use of biological weapons is in any event now prohibited under customary international law, a prohibition binding on all states. Fortunately biological weapons have only rarely been used. A biological weapon works by delivering 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. Examples of bacterial agents are anthrax, cholera and plague, such as bubonic plague. Smallpox and yellow fever are viral agents. Biological agents are capable of self-replication and it is this quality of being able to multiply within a host that makes them so potentially aggressive.

As the term suggests, most biological agents occur in nature and are ubiquitous in the natural environment, being found in water, soil, plants and animals. The negotiators of the convention faced a number of difficulties in framing its central prohibitions. Accordingly they 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.

Resolution 1540 was adopted by the Security Council in 2004 under Chapter VII of the charter and is binding on all UN member states. 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 it focuses specifically on the risk posed by non-state actors, including terrorists, acquiring and using nuclear, chemical and biological weapons, their means of delivery and related materials. The Council also established the 1540 Committee, to which states are required to make regular reports on implementation of the resolution. Ireland has submitted a number of national reports in the period since 2004.

The resolution requires states to adopt appropriate effective laws that prohibit any non-state actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in such activities, participate in them as an accomplice, assist or finance them. The Biological Weapons Bill will demonstrate Ireland's continuing commitment to implementation of the resolution.

To strengthen implementation of our international obligations, 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 under international conventions, United Nations Security Council resolutions, European Union law and various policy frameworks of which Ireland is a member, to prevent the proliferation of nuclear, chemical and biological weapons. The committee also addresses other issues in the non-proliferation area, as necessary.

The committee is chaired by a senior official in the Department of Foreign Affairs and Trade and, in the case of matters relating to export control regimes falling under its remit, by an official of the Department of Jobs, Enterprise and Innovation. All relevant Departments and agencies are represented and the committee has discretion to invite other individuals or bodies to join or to attend meetings. The committee has been consulted closely on this Bill.

Ireland ratified the Biological and Toxin Weapons Convention, BTWC, in 1972. At that time the view was taken that the obligations assumed were adequately provided for under existing domestic law, principally the Firearms Acts. However, following a review of implementation of our non-proliferation commitments, particularly Resolution 1540, it has been decided to create specific biological weapons offences. This will remove any doubt about the feasibility of future prosecution of persons for activities involving biological weapons. Senators will be aware that there is already 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 and are therefore found in many places of work such as hospitals, food production plants and agricultural facilities. Many are harmless but others have the potential to cause ill health. There are workplaces, such as laboratories, where work involving biological agents is carried on intentionally and for perfectly legitimate purposes, such as the production of vaccines.

There is already a considerable body of law that sets down 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 biosafety 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 requirements set out in this body of law must be applied to any activity where workers are actually or potentially exposed to biological agents as a result of their work.

Section 1 of the Bill defines a number of key terms, 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 or transfer to another person a biological agent or toxin for a hostile purpose. It makes it an offence to develop, produce, use, stockpile, acquire, possess, retain or transfer to another person a prohibited weapon. It will also be an offence to attempt to do any of these things.

Section 3 creates offences of prohibited acts when committed outside the State in specific circumstances, that is, 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 Class A fine 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. Section 11 sets out the procedure for forfeiture of any biological agent or toxin whether or not 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. Section 13 references changes made to the Bail Act 1997 to include offences relating to biological weapons and Section 14 is a standard provision relating to expenses incurred under the Bill.

The Government will propose a number of minor amendments on Committee Stage in the Seanad. The amendments will simply reflect the changes in titles of Ministers affected by recent changes of responsibility in Government.

Since the 1950s, Ireland has played a leading role in efforts to promote nuclear disarmament and non-proliferation and, more recently, to prohibit anti-personnel land mines and cluster munitions. It is important that where we have international commitments, we ensure that adequate provision is made for them in domestic law. When possible gaps are identified, such as in the present case, it is important that we move to fill them. For this reason I commend the Bill to the House.