Drugs Ruling: Law-making powers are restricted to Oireachtas

A law used to ban a psychoactive substance sold lawfully in headshops until 2011 has been found unconstitutional.

In what the Court of Appeal said was a “constitutional issue of far-reaching importance”, the three-judge court unanimously said a regulation making illegal the possession of a stimulant called methylethcathinone was invalid.

The court said Section 2 (2) of the 1977 Misuse of Drugs Act, under which the regulation was introduced, was unconstitutional because it purports to vest in the Government law-making powers which are in the exclusive authority of the Oireachtas.

The State indicated that it may seek to appeal the decision to the Supreme Court on a point of exceptional public importance.

The case concerned a prosecution of a man for possession for sale of methylethcathinone, which was among a number of substances put on the controlled drugs list in 2010.

Stanislav Bederev, who denied criminal charges of having the substance in 2012, brought a High Court challenge seeking to stop his trial, claiming the new regulations were unconstitutional.

His trial before Blanchardstown District Court had been on hold pending the legal challenge.

The State opposed Mr Bederev’s application.

Mr Justice Gerad Hogan, on behalf of the Court of Appeal, said section 2(2) of the 1977 act was repugnant to Article 15.2.1 of the Constitution, which vests sole an exclusive power to make laws in the Oireachtas.

The fundamental objective of principles and policies in relation to this constitutional provision is to ensure that legislative power is not ceded by the Oireachtas “under the guise of regulatory power”.

The Government is “more or less at large” under the Act to declare substances controlled drugs except that no principles or policies about the nature of these substances are contained in Section 2 (2) of the Act, said the judge, adding: “The fundamental difficulty here is that the 1977 act determined that only ‘certain’ dangerous or harmful drugs would be controlled, thus leaving important policy judgements to be made by the Government rather than by the Oireachtas.”

It might also be asked whether it would be open to the Government to employ the law to ban other drugs which are in everyday use and are potentially harmful and liable to be misused, such as alcohol and tobacco, said Mr Justice Hogan.

In Mr Bederev’s case, the judge said, the fundamental choice which remains with the Government, for the purposes of the 1977 act “is which dangerous or harmful drugs are liable to misuse such that they should be declared controlled drugs”.

The use of terms such as “misuse”, “dangerous”, and “harmful” in the title of the 1977 act “represent laudable and desirable objectives”.

However, they do not in themselves constitute a sufficient restriction on the more or less unlimited power of regulation vested in the Government by Section 2(2) of the act in relation to what substances should be declared controlled drugs, the judge said.

It was an “unavoidable” conclusion that this section of the act purports to vest in the Government what, in the absence of appropriate principles and policies in the legislation itself, “are, in truth, law-making policies”, said Mr Justice Hogan.

It followed that Section 2 (2) of the 1977 act was invalid and the order banning methylethcathinone was also invalid.