Bederev v Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Finlay Geoghegan J.,Peart J.
• Judgment Date: 10 March 2015
• Neutral Citation: [2015] IECA 38
• Court: Court of Appeal (Ireland)
• Date: 10 March 2015

[2015] IECA 38

THE COURT OF APPEAL

Finlay Geoghegan J.

Peart J.

Hogan J.

[No. 1409/2014]

Bederev v Ireland & Ors

[Article 64 transfer]

BETWEEN/

STANISLAV BEDEREV

PLAINTIFF/APPELLANT

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS/RESPONDENTS

Crime & sentencing – Drugs – Controlled drugs – S 2(2) Misuse of Drugs Act 1977 – Whether provisions of 1977 Act offended art 15.2.1 of the Constitution

The appellant had been charged with possession of a controlled drug. The drug had been classified by secondary legislation under s 2(2) of the Misuse of Drugs Act 1977. The appellant had challenged the constitutionality of s 2(2) in the High Court, and had been unsuccessful. He now sought to appeal.

Held by Hogan J, the other justices concurring, that the key question was whether the secondary legislation exceeded the mere giving effect to the principles and policies set out by the primary legislation. The Court was satisfied on the proper construction for the 1977 Act that the power in s 2(2) was not limited sufficiently by the provisions of that Act or indeed the long title and did exceed the test.

Notwithstanding the power to annul secondary legislation contained in the 1977 Act, the Court was satisfied that s 2(2) was contrary to art 15.2.1 of the Constitution. The appeal would be allowed. Cityview Press Ltd. v. AnCO [1980] IR 381, McGowan v. Labour Court [2013] IESC 2, Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] IR 413 and Collins v. Minister for Finance [2013] IEHC 53 considered.

1 1. This is an appeal from the judgment of Gilligan J. in the High Court delivered on the 14th May, 2014, whereby he refused to make an order declaring s. 2(2) of the Misuse of Drugs Act 1977 ("the 1977 Act") unconstitutional on the ground that it contravened Article 15.2.1 of the Constitution: see Bederev v. Ireland [2014] IEHC 490. As s. 2(2) of the 1977 Act vests the Government with powers to declare certain substances to be "controlled drugs" for the purposes of this legislation, it will be seen that this appeal presents a constitutional issue of far-reaching importance.

2 2. The appellants originally appealed to the Supreme Court against this decision. This case was subsequently transferred to this Court from the Supreme Court pursuant to Article 64 of the Constitution by direction of the Chief Justice (with the concurrence of all the members of the Supreme Court) on 29 ^th October, 2014, following the establishment of this Court on the previous day.

The background to the appeal

3 3. The appellant in these proceedings, Mr. Bederev ("the appellant"), was charged on 26th April, 2012, at Blanchardstown District Court with certain offences under ss. 3, 15 and 27 of the 1977 Act concerning the possession and the possession with intention to sell certain controlled drugs. These charges were subsequently amended, so that the controlled drug in respect of which the charges were now laid was changed from mephedrone to methylethcathinone. The drug in question, methylethcathinone, was classified by the Misuse of Drugs Act 1997 (Controlled Drugs)(Declaration) Order 2011 ( S.I. No. 551 of 2011)("the 2011 Order") as a controlled drug within the meaning of the 1977 Act. The District Court proceedings currently stand adjourned pending the outcome of this appeal.

4 4. Methylethcathinone is a stimulant designed for recreational drug use. Prior to the making of the 2011 Order by the Government, this drug was legally available and could have been purchased at certain retail outlets which specialise in the sale of tobacco paraphernalia. Accordingly, everything, therefore, turns so far as the this appeal is concerned, on the constitutionality of s. 2(2) of the 1977 Act, since the validity of the 2011 Orders rests entirely on this sub-section.

5 5. Article 5 of the Constitution describes the State as "a sovereign, independent, democratic state." Article 15.2.1 of the Constitution provides:

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

6 6. Before considering this issue, it is necessary first to set out the relevant provisions of the 1977 Act.

Key provisions of the 1977 Act

7 7. The long title to the 1977 Act provides:

"An Act to prevent the misuse of certain dangerous or otherwise harmful drugs, to enable the Minister for Health to make for that purpose certain Regulations in relation to such drugs, to enable that Minister to provide that certain substances shall be poisons for the purposes of the Pharmacy Acts, 1875 to 1962, to amend the Pharmacopoeia Act 1931, the Poisons Act 1961, the Pharmacy Act 1962 and the Health Acts 1947 to 1970, to repeal the Dangerous Drugs Act 1934 and section 78 of the Health Act 1970 and to make certain other provisions in relation to the foregoing."

8 8. Section 2(1) of the 1977 Act defines a "controlled drug" as:

"any substance, product or preparation (other than a substance, product or preparation specified in an order under subsection (3) of this section which is for the time being in force) which is either specified in the Schedule to this Act or is for the time being declared pursuant to subsection (2) of this section to be a controlled drug for the purposes of this Act."

9 9. Section 2(2) of the 1977 Act provides:

"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."

10 10. The 2011 Order was made pursuant to this latter sub-section. There are, therefore, two means by which a substance can be defined as a "controlled drug" within the meaning of the Act. First, the schedule of the 1977 Act contains a list of drugs which are designated as "controlled drugs" for this purpose. It is, of course, always open to the Oireachtas to amend that Schedule by means of a later enactment. Second, s. 2(2) empowers the Government to make an order adding a particular "substance, product or preparation" to that the schedule.

11 11. Section 2(3) of the 1977 Act empowers the Government to declare by order that the Act shall not apply:

"in relation to a substance, product or preparation specified both in the order and in the Schedule to this Act, and so long as an order under this sub-section is in force, this Act shall not apply in relation to a substance, product or preparation specified in the order."

12 12. Section 2(4) of the 1977 Act enables the Government to amend or revoke an order made under this section.

13 13. Much of the rest of the 1977 Act is taken up with creating criminal offences in respect of the possession, cultivation and sale or supply of controlled drugs.

The judgment in the High Court

14 14. In a comprehensive decision which reviewed the major authorities considered elsewhere in this judgment Gilligan J. concluded that the 1977 Act must be interpreted in a holistic fashion. Drawing on the guidance found in the long title and the general objectives of the 1977 Act, Gilligan J. found that the legislation was directed at drugs which "would have negative and detrimental effects on human health and society and is limited to those substances which are likely to be universally harmful to those who misuse them."

15 15. As thus construed, he concluded 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. These standards were also sufficient to enable the courts to review the exercise of this power on vires grounds. He also considered that the fact that both Houses of the Oireachtas were given the power by s. 38(3) of the 1977 Act to annul by resolution any earlier order made under s. 2(2) was an important safeguard which also assisted him to conclude that the powers conferred by s. 2(2) did not involve the grant of legislative powers and, hence, that the sub-section did not violate Article 15.2.1.

Article 15.2.1 of the Constitution and the principles and policies test

16 16. Article 15.2.1 provides that the "sole and exclusive power of making laws for the State is hereby vested in the Oireachtas." While there is no doubt but that this provision has given rise to a considerable degree of litigation, the starting point on the question of whether the legislative power has been delegated remains the test which was enunciated by O'Higgins C.J. in Cityview Press Ltd. v. AnCO ( [1980] I.R. 381, 399):

"In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits - if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body - there is no unauthorised delegation of legislative power."

17 17. Although much of the subsequent Article 15.2.1 case-law is technical and complex, the fundamental objective of the principles and policies test is to ensure that legislative power is not ceded by the Oireachtas under the...