Case Note: Bederev v Ireland

• Author: Jack Spain
• Position: Junior Freshman LLB Candidate, Trinity College Dublin
• Pages: 261-268

© 2016 Jack Spain and Dublin University Law Society

CASE NOTE: BEDEREV V IRELAND

JACK SPAIN*

Introduction

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.

5Ibid.