Case Note: Bederev v Ireland

Author:Jack Spain
Position:Junior Freshman LLB Candidate, Trinity College Dublin
© 2016 Jack Spain and Dublin University Law Society
The case of Bederev v Ireland1 stands out as one of the more unusual and
noteworthy cases of 2015. The case exposed an unconstitutional delegation
of legislative power within s.2(2) of the Misuse of Drugs Act 1977,2 leading
the Court of Appeal to strike down the provision, an action which had the
immediate effect of leaving Ireland temporarily without a statutory
instrument criminalising the possession of substances including ecstasy,
methcathinone (or ‘CAT’), ‘magic mushrooms’ and other drugs.3 The effect
of the decision was to render each of the Orders made pursuant to s.2(2)
since 1977 null and void, with the result that the substances in question were
no longer classified for the purposes of the 1977 Act. The Oireachtas was
quick to fill the lacuna in the law brought about by Bederev by promptly
passing emergency legislation to re-criminalise the possession of the
substances in question. Consequently, the effects of the declaration of
invalidity were relatively short-lived.
Legal challenges contending that statutory provisions constituted an
unconstitutional delegation of legislative power had, until recently, only
rarely succeeded in the Irish courts.4 The number of cases in which a
declaration of invalidity has been granted on the basis of the non-delegation
doctrine has, however, seen a considerable increase in recent years.5 This
case note will argue that Court of Appeal’s judgment in Bederev is a
significant example of the recent retreat from the previously deferential
approach of the superior courts when applying the non-delegation doctrine,
solidifying the renewed rigour with which the courts are now prepared to
* Junior Freshman LLB Candidate, Trinity College Dublin. The author would like to thank the
Senior Editorial Board, in particular Shauna Keniry, for their helpful comments on earlier
drafts of this case note.
1 [2015] IECA 38; [2015] 1 ILRM 301 [hereinafter Bederev].
2 Misuse of Drugs Act, 1977 [hereinafter the 1977 Act].
3 Mary Minihan, Mark Hilliard, Conor Gallagher, Drugs ruling will impact on pending cases,
says expert, will-impact-on-
pending-cases-says-expert-1.2134365> (visited 7 February 2016).
4 See Gerard Hogan, David Kenny, Rachael Walsh, “An Anthology of Declarations of
Constitutionality” (2015) 54(2) IJ (ns) 1, at 22.

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