Bederev v Ireland: Misuse of Drugs Act 1977 is constitutional—no precedents were harmed

Here, the Supreme Court held that the Misuse of Drugs Act 1977, read as a whole, provides sufficient principles to determine which new drugs the Government may add to the schedule of controlled drugs, under s 2(2) of the Act. And as the 1977 Act provides a scrutiny mechanism by which the Óireachtas can annul any addition to the schedule of controlled drugs, the 1977 Act is not an abrogation of the Óireachtas’s democratic responsibility to make laws.

Law

Article 15.2.1º of the Constitution reads:

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

The 1977 Act reads:

s 2 (2) The Government may by order declare any substance, product or preparation (not being a substance, product or preparation specified in the Schedule to this Act) to be a controlled drug for the purposes of this Act and so long as an order under this subsection is in force, this Act shall have effect as regards any substance, product or preparation specified in the order as if the substance, product or preparation were specified in the said Schedule. …

s 38 (3) Every regulation and every order made under this Act (other than an order under section 8 (8) or an order referred to in section 11 or section 28) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next twenty-one days on which that House has sat after the regulation or order is laid before it, the regulation or order, as the case may be, shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

Background

In April 2012, the State brought Bederev before Blanchardstown District Court charged with possession of and intention to sell a quantity of methylethcathinone, a synthetic drug. Prior to 2011, it was not illegal in Ireland to possess or sell methylethcathinone, which was available to buy in “head shops”. In 2011, the Government made a declaration under s 2(2) that methylethcathinone is a controlled drug.

Bederev issued High Court proceedings seeking an order that s 2(2) of the 1977 Act was unconstitutional, on grounds that it gave the Government legislation making power contrary to Article 15.2.1.

The High Court (here) dismissed Bederev’s application concluding that “the 1977 Act contained sufficient principles and policies to guide and constrain the Government in the making of any order under s 2(2) so as to satisfy the requirements of Article 15.2.1 of the Constitution” COA [15]. Bederev appealed that decision to the Court of Appeal.

Court of Appeal

Allowing the appeal (here) and granting Bederev orders that s 2(2) offended Article 15.2.1 and that the 2011 Declaration was void, the COA held that s 2(2) did not constrain the Government from making an order outside the parameters of existing categories of controlled drugs (that it could, for example, allow the inclusion of alcohol or tobacco  schedule); the 1977 Act left policy decisions on what constituted “dangerous”, “harmful” or “misuse” to the Government; the fact that the Óireachtas could annul a Government order was not sufficient to save s 2(2) from offending Article 15.2.1; and that s 2(2) vested the Government with law making powers.

Supreme Court

Writing for a unanimous seven judge panel, Charleton J overturned the COA decision. He applied settled case law on Article 15 (including Pigs Marketing Board [1939], Citywide Press [1980] & John Grace Fried Chicken [2011]) and quoted Dodd, Statutory Interpretation in Ireland (Dublin 1984) and Benninon, Statutory Interpretation (London 2013). He held that:

33. In the Act of 1977, it is clear that the entire enactment, as to the preamble, the individual sections and the schedule setting out the drugs then controlled, should be read as a whole in order to determine the principles upon which any new drug might be added by the Government to the list passed as part of the legislation in 1977. The entire text should also be searched to find the boundaries to the power to add new substances. Central to the guidance given to the Government by the Act of 1977 is the schedule of drugs appended to the legislation. Both the drugs individually set out in particular sections within the legislation and the schedule, which is part therof, describe and delimit the kind of drugs needing control. Only such drugs, those dangerous to human health and subject to abuse actually or potentially, may be added. Any such addition is subject to scrutiny by the Oireachtas through the mechanism in the Act enabling the legislature to annul any such delegated legislative authority.

34. In the result, the judgement and order of the Court of Appeal should be set aside and the order of the High Court, refusing a declaration of unconstitutionality in respect of section 2(2) of the Act of 1977, restored.

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