Dr Laura Cahillane
Contrary to what is being reported in certain newspapers over the past 24 hours, the Court of Appeal did not declare killer drugs legal to posses and buy yesterday, nor did they ‘accidentally’ legalise these drugs. While the effect of the ruling means that the section which had prohibited these drugs has been struck down and that until sometime tomorrow, there is no law which declares these drugs illegal, the focus of the judgment was on the power given to the Government to make orders under the Act.
The legislative power
The Irish Constitution embraces the idea of the Separation of Powers. This doctrine envisages state power being divided between three principal state institutions – the executive (government), the legislature (Oireachtas) and the judiciary. Each branch is to exercise separate and specific powers. Article 15.2.1 expressly declares that the ‘sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.’ This means that no other body can make laws for the State and any purported law must go through the conventional legislative stages in both Houses of the Oireachtas and be signed by the President to be constitutionally valid. However, it is also permissible to delegate limited legislative functions under certain restricted circumstances. The reason for this is that the legislative process is a long and arduous one and it can take some time for a legislative measure to be brought before the Houses, because of this, rather than settling all of the points of law in a particular bill, sometimes a defined area of legislative power is left over to be exercised ‘by order’ – meaning by statutory instrument – by some other authority, usually the responsible minister.
Problems with Delegated legislation
It could be argued that this regime creates problems in relation to the ‘rule of law’ namely that unlike the normal legislative process whereby debates are publicised and any change in the law is very clear, a statutory instrument or regulation is only required to be ‘laid before each House’ which effectively means that it is entered into the library in Leinster House and therefore is at odds with the idea that the law should be definite and accessible so that everyone has the chance to bring their behaviour into line with the law. Because of this conflict with the rule of law, the courts have only allowed for this type of delegated legislation in very specific circumstances, which were laid out in the form of a test in the case of Cityview Press v. AnCo  IR381.
The Cityview Test
In this case, the Industrial Training Act, 1967 gave AnCo (the Industrial Training Authority) power to make a statutory instrument fixing the amount of a levy to be collected from each business in a specified industry and used for training recruits to that industry. Cityview argued that the delegation of the power to fix the amount they had to pay violated Art 15.2.1. Setting out the test to be applied in this area, O Higgins C.J. stated: ‘the test is whether that which is challenged as an unauthorized delegation of parliamentary power is more than a mere giving effect to of principles and policies which are contained in the statute itself.’ In other words, it is permissible for the Oireachtas to delegate authority to make law but only law which fills in details of a policy already contained in legislation. The person or body making the statutory instrument is not allowed to establish new principles not already found in the parent act or some other act of the Oireachtas. Furthermore, there must be sufficient guidance in the parent Act for the order or regulation to follow. This was ultimately the problem in the Bederev Case.
The Bederev Case
In this case, 2(2) of the Misuse of Drugs Act 1977, which vested the Government with powers to declare certain substances to be ‘controlled drugs’, was challenged as unconstitutional on the ground that it contravened Article 15.2.1 of the Constitution. Under the Act, there were two means by which a substance could be defined as a ‘controlled drug’ and therefore be banned. First, the schedule of the 1977 Act contains a list of drugs which are designated as ‘controlled drugs’. Section 2(2) also empowered the Government to make an order adding a particular ‘substance, product or preparation’ to that the schedule. In other words this section delegated legislative power to the Government to change to the parent Act by adding substances to the ‘controlled drugs’ list. It was argued on behalf of Bederev that there were no principles and policies contained in the section to provide guidance to the Government in relation to the granting of orders. However, Counsel for the State argued that the Act was to be construed as a whole and that the guidance was to be found in the long title and the schedule so that any order made by the Government would have to be in respect of drugs which had the same character, properties and propensities as those controlled drugs already contained in the schedule to the Act. In a very careful and detailed consideration of these points, Justice Hogan came to the conclusion that the Act did not contain sufficient principles and policies.
Lack of Guidance – principles and policies
On the argument that the Government would have to follow the definition of a ‘controlled drug’ contained elsewhere in the Act, Hogan pointed out that the very definition of the term ‘controlled drugs’ contained in s. 2(1) of the 1977 Act is expressly premised on the basis of alternatives: ‘either the controlled drug is either one which is contained in the schedule or is one which has been declared to be such by the Government by the making of an order under s. 2(2). The use of the words ‘either’ and ‘or’ in this definition clause clearly and unambiguously posit the existence of such alternatives.’ Thus no guidance is to be found here. In fact, Hogan opined that rather than confining the Government to a particular definition of a controlled substance, the section had been written to allow the widest possible power for the Government for the albeit innocent purpose of banning new dangerous drugs which might have no comparable physical or other properties or qualities with those drugs already specified in the Schedule.
On the argument that the long title provided sufficient guidance, Hogan accepted that the long title had the effect that any drug purportedly banned by the Government under section 2(2) would have to be a ‘dangerous or harmful one’. However, difficulties remained. The first is enunciated by Hogan as follows:
The fundamental difficulty here is that the 1977 Act determined that only ‘certain’ dangerous or harmful drugs would be controlled, thus leaving important policy judgments to be made by the Government rather than by the Oireachtas. One may immediately ask: how is to be determined which of these dangerous or harmful drugs are to be controlled and which are not? How can it be determined which drugs are ‘dangerous’? Again, one might ask: dangerous to whom? Is this standard to be measured by reference to the general public? Or would it suffice that the drug in question would be dangerous if consumed or used by certain sectors of society such as children or young adults? By what standards are the questions of whether particular drugs are ‘harmful’ and liable to be ‘misused’ to be assessed and determined?
He then highlighted that virtually every drug is potentially harmful and liable to be misused and gave the examples of alcohol and tobacco, which could be defined as harmful and potentially dangerous. He therefore felt that the long title did not contain the guidance needed and indeed felt that it would have been rather asking too much of a long title in any case. Because of this, he stated that this was ‘far from a case of the Government filling in only the details’ insofar as the making of a controlled drugs order under s. 2(2) of the 1977 Act was concerned.
The Effect of Section 2(2)
Boiling this down to the basics, this case is about the proper exercise of legislative power. While the Oireachtas has responsibility for the passing of legislation and did pass the 1977 Act, it also delegated limited power to the Government to amend this legislation. However, this power granted to the Government is only valid if it is curtailed by the original Act and does not allow for the Government to create new law under the auspices of the original legislation. Unfortunately, because of the manner in which the legislation was set out, the power given to the Government under section 2(2) was too vague, gave a power to the Government which was not limited by principals and policies, and did not contain sufficient guidance in relation to the exercise of this power. This was therefore an unconstitutional delegation of legislative power under Article 15.2.1 and so it was struck down. This also meant that the 2011 Order made under the Act, which had banned many psychoactive substances being sold in ‘head shops’ and over the internet, was also made invalid.
The Oireachtas is in the process of passing legislation which will close this loophole in that all of the previously banned substances will now be included in an Act. Once this Act is passed, these substances will once again be illegal. However, questions have arisen as to whether previous convictions are safe. While the ruling may affect a very small number of cases, the reality is that there will be very few knock-on effects following this judgment. As explained by Dr Conor O’Mahony in the Irish Examiner here, a person already convicted for offences relating to any of the controlled drugs proscribed by section 2(2) of the 1977 Act would only be able to challenge their conviction now if they had argued in their original case that the law in question was unconstitutional. The main consequence is that anyone who committed an offence prior to the enactment of the emergency legislation who has not yet been convicted, cannot now be prosecuted for that offence. This is because the Constitution requires that any law which creates an offence can only be forward looking – eg.you can’t declare that something which was legal yesterday is now illegal but with retrospective effect. Thus, only a very small number of cases are likely to be affected.
The Bottom Line
What is important to note is that this case was not about legalising drugs and the consequences were certainly not ‘accidental’, although they may have been unfortunate. Justice Hogan and his colleagues knew perfectly well what they were doing – they issued a clear restatement of the principles and policies test and made it clear that the principle of the separation of powers in the Constitution is to be taken seriously.
Dr Laura Cahillane