High Court dismisses challenge to Misuse of Drugs Act 1977, upholding clarity of delegated control orders.

Neutral Citation: [2014] IEHC 490

THE HIGH COURT

[2012 No. 11018 P]

BETWEEN

STANISLAV BEDEREV

PLAINTIFF

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

JUDGMENT of Mr. Justice Gilligan delivered on the 29th day of May, 2014

1. The plaintiff to these proceedings was charged on 26th April, 2012, at Blanchardstown District Court with offences under s. 3, s.15

and s. 27 of the Misuse of Drugs Act 1977 (“the Act”) related to the possession and possession with intention to sell certain

controlled substances. On 8th October, 2012, the Charge Sheets were amended changing the controlled substance for which the

charge was applied from mephedrone to methylethcathinone. The substance in question, methylethcathinone, was defined by the

Misuse of Drugs Act 1997 (Controlled Drugs)(Declaration) Order 2011 (“the Order”) S.I. No. 551 of 2011 as a controlled substance

within the meaning of the Act. It was, prior to the commencement of the Order, a legally available recreational drug which was usually

sold in “head shop” type businesses in Ireland. The trial of these charges stands adjourned in the District Court pending the outcome

of these proceedings.

2. Section 2(1) of the Misuse of Drugs Act 1977 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.”

Section 2(2) of the 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.”

It is pursuant to this provision that the Order was commenced. Therefore there are two means by which a substance can be defined

as “controlled” within the meaning of the Act; either by primary legislation which adds the substance in question to the list of

prescribed substances in the Schedule to the Act or through delegated legislation as provided for in s.2(2) of the Act.

3. The plaintiff to these proceedings applies by way of plenary summons for a declaration that s. 2(2) of the Act is invalid having

regard to Article 15 of the Constitution. In the alternative the plaintiff also seeks a declaration that the Order is invalid with regard to

Article 15 of the Constitution and an injunction restraining the prosecution of the charges against him in accordance with such a

declaration.

4. The Court had the benefit of hearing oral evidence from Ms. Lauren Martin, solicitor, of Martin and Gately Solicitors, representing

the plaintiff and from Ms. Marita Kinsella, Chief Pharmacist at the Department of Health between January 2009, and October 2013, the

period during which the Order in question was drafted and commenced. The Court has also had the benefit of written and oral

submissions from counsel on behalf of the plaintiff and counsel on behalf of the defendant.

Evidence

5. Ms. Martin gave evidence formally proving the offences with which the plaintiff to these proceedings as been charged and the

amendments which were made to the Charge Sheets subsequent to the original District Court hearing.

6. Ms. Kinsella gave highly detailed evidence in relation to the approach taken within the Department of Health (“the Department”) to

the issue of controlled substances including the process by which a substance comes to be recognised under the 1977 Act as

“controlled” within the meaning of s. 2 thereof. She described her role within the Department as including the management of policy

and legislation in relation to controlled substances within the terms of the Act.

7. She stated that the designation of substances as controlled within the meaning of the Act was an ongoing process due to the

constant emergence of new substances and that the Department engages with a number of different agents including the Revenue

Commissioners, the Health Service Executive, An Garda Síochána, drug treatment services and others in order to monitor the patterns

of usage of substances and the emergence of new substances and new patterns of misuse. Ms. Kinsella stated that the authorities in

Ireland monitored the prevailing situation in neighbouring countries and on an international level since changing patterns in drug use

internationally would usually, over a period of time, lead to changes in such trends in Ireland. She stated that there were two main

international organisations with which Ireland had a relationship in the control of certain substances of misuse, namely the United

Nations Office on Drugs and Crime and the European Monitoring Centre for Drugs and Drug Addiction. These organs facilitate the

exchange of information between member countries, of which Ireland is one, and ensure that their members are up to date in relation

to changing patterns of misuse and changing control mechanisms.

8. There are also a number of international conventions operative in this area. The two conventions of most significance to the facts

at issue in this case are the United Nations Single Convention on Narcotic Drugs 1961 which has been in force in Ireland since 1981

and the United Nations Convention on Psychotrophic Substances 1971 which has been in force in this State since 1992. Ms. Kinsella

explained that “narcotic” is an out-moded term which in the past was taken to refer to those drugs with sleep inducing qualities such

as opiates like morphine and heroin which were well known to authorities by the 1930’s. She stated that “psychotropic” substances

were of more recent origin and that the term generally related to drugs with mood and perception altering qualities such as

amphetamines and barbiturates, these drugs emerging in the 1950’s and in subsequent years.

9. Ms. Kinsella stated that new drugs were regularly suggested for addition to the lists of controlled substances under the Act and

stated that their classification as “controlled” within the meaning of that legislation would always be the result of a complex

consultative process involving various experts and authorities. It is usual for the Department to initially receive reports of misuse from

front line authorities such as those within the health services or the Gardaí. At this stage an attempt is made by officials in the

Forensic Science Laboratory or Eolaíocht Fhóiréinseach Éireann (EFÉ) to identify the exact chemical nature of the substance

concerned and whether there are any health concerns or potential of harm to human health arising from it. At this stage the Minister

for Health will convene an expert group to evaluate the substance, describe what it is and its effects based on the evidence

available. This group will normally be multidisciplinary and will be composed of the Chief Pharmacist, other scientists and

representatives of the other services set out above such as the Revenue Commissioners. This group will then suggest potential

legislative measures which may be necessary arising out of its evaluation of the substance in question. This report is then sent to the

Minister for Health who, if it is so decided, instructs a draft statutory instrument to be brought to Government. In response to the

question from Mr. Barron S.C., counsel for the defendants, as to what criteria were used in deciding which substances were

appropriate for control Ms. Kinsella stated that if it was known that a substance could cause or had the potential to cause harm to

human health then this substance would be one which it would be appropriate to control. She confirmed that new substances of

misuse emerge at a very rapid pace.

10. Ms. Kinsella informed the Court that two different nomenclature systems are used by the Department of Health, the International

Union of Pure and Applied Chemistry designation and the International Nonproprietary Name system. Drugs which are controlled are

included in a Schedule to the 1977 Act and these naming systems aim to give legal clarity to what drugs or groups of drugs fall within

the scope of the Act. The Schedules also include “generic” paragraphs which allow for the control of specific substances and also

other substances, which may as yet be unidentified but which are closely related to those known and controlled substances. This is a

means of ensuring that the Schedule and therefore the Act does not become defunct due to the pace at which new substances of

misuse can emerge. It is common, according to Ms. Kinsella, for the chemical composition and structure of controlled substances to

be changed slightly in order to avoid falling within the scope of legislation such as the Misuse of Drugs Act 1977 whilst retaining the

desired characteristics of the original substance. Generic paragraphs ensure that this does not render legislation ineffective.

11. In relation to the substance at issue in this case Ms. Kinsella stated in evidence that during the period 2009 to 2010 new forms of

psychoactive substances emerged. The Minister for Health convened an expert group composed of representatives from the Forensic

Science Laboratory, the HSE and An Garda Síochána which was chaired by Ms. Kinsella. The purpose of the group was to examine the

effect of these substances, the need for their control and to suggest a suitable generic paragraph which could be included in any

draft statutory instrument.

12. Ms. Kinsella then gave evidence as to the background of the 1977 Act stating that the first substantive legislation for the control

of substances of misuse in Ireland was the Dangerous Drugs Act 1934 which was based on a number of earlier international

conventions, the Hague International Opium Convention of 1912 and the Geneva Convention Relating to Opium and other Dangerous

Drugs of 1925 and the International Convention Relating to the Manufacture and Distribution of Narcotic Drugs of 1931. The 1934 Act

established a system of import control at national level and concerned some well known psychoactive substances such as Indian

hemp or cannabis. However a large number of new drugs emerged in the years subsequent to the promulgation of this legislation in

particular during the 1950’s with new hallucinogenic substances such as amphetamines and barbiturates etc. emerging which had not

been appropriately covered by the previous legislation. The United Nations then adopted the two conventions of 1961 and 1971 which

are set out above at para. 8 and it was in response to these developments that the Act of 1977 was promulgated. Both of these

latter international treaties recognised that it would be necessary to update the lists of substances which fell within the scope of

these systems of control on an ongoing basis and both provided mechanisms for doing so, normally through a report of an expert

committee constituted by the World Health Committee which made recommendations to the United Nations for adoption of substances

by the State Parties into the schedules of the Convention. Ms. Kinsella stated that it was often difficult for this process to move

efficiently due to the large number of states involved and that it was quite common for the national authorities of member states to

control substances of concern at a domestic level a number of years prior to the recognition for control being made at an

international level.

13. Ms. Kinsella stated that all of the substances the subject of the Convention of 1961 were included in the Schedules to the 1977

Act as controlled substances and that most of the substances controlled by the Convention of 1971 were also included in the

Schedules to the Act of 1977. Some of the substances in the 1971 Convention were not included under the 1977 Act as they were

already controlled by other legislation in Ireland, namely the Health Act 1947 and other statutory instruments commenced pursuant to

that Act. Other substances were added to the list of controlled substances under the 1977 Act later by statutory instrument.

14. Ms. Kinsella stated in her evidence, in response to questions put to her by Ms. McDonagh S.C., counsel on behalf of the plaintiff,

that the members of An Garda Síochána were consulted in decisions by the Minister to classify any particular substance as

“controlled” as it was important for the authorities to understand the situation as regards the misuse of substances “on the ground.”

In response to a question from counsel for the plaintiff as to whether there was a legitimate public order interest on the part of the

State in controlling a substance or banning it, the witness responded that this was the case. She also stated that the

representatives of the H.S.E. were also consulted in this classification process to ensure that the Minister was aware of the situation

as regards the misuse of the given substance for emergency and health services. Ms. Kinsella stated that another concern to be

taken into account would be the possible over-burdening of the health services. She also stated that Revenue implications and

ensuring that domestic legislation was kept up to date with international legal developments in this area were two other issues of

concern for the Minister. In response to a question put to her by counsel for the plaintiff as to why the Oireachtas could not debate

whether to classify certain substances as controlled within the meaning of the Act Ms. Kinsella stated that this was due to the rapid

emergence of new substances and the urgency with which such decisions needed to be taken as well as the complex and technical

nature of the issue.

15. In response to a question from counsel for the plaintiff as to whether any substances which could be misused would not come

within the scheme of the Act Ms. Kinsella said that some substances would not be associated with misuse though may be harmful in

large quantities, such as nutmeg, and therefore would not fall within the scope of the Act. In relation to the provisions of s. 2 of the

Act Ms. Kinsella was again asked whether any specific substances could not be classified under this provision and whether alcohol for

example could be classified as “controlled” under this legislation. Ms. Kinsella stated that the Act was promulgated in the context of

international and domestic drugs control policy and that alcohol was not considered to be a part of this policy programme. Alcohol is

normally treated separately to other controlled substances. She also stated that the core principle and policy governing this

legislation is that for a substance to be liable for control it must be one which is harmful and liable to misuse and that this principle

can be derived from the long title of the Act.

Submissions on Behalf of the Plaintiff

16. Counsel on behalf of the plaintiff submits that the task of the Court in the case of an application of this kind is to read and

construe the legislative provision in question closely, keeping in mind the presumption of constitutionality from which it benefits and to

determine whether the legislation is itself an impressible delegation of the law-making function conferred on the Oireachtas by Article

15.2.1 of the Constitution. This must be done by applying the traditional principles and policies test which was set out by the

Supreme Court in Cityview Press and Anor v. An Chomhairle Oiliúna and Ors [1980] 1 I.R. 381 wherein O’Higgins C.J. stated at p. 399:

“…[T]he 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.”

This test has also been applied in a large number of cases since the handing down of the decision in Cityview. The rationale for this

test is that in order to challenge legislation by way of judicial review a plaintiff must have knowledge of the principles and policies

which limit the exercise of a delegated power otherwise it would be impossible for a plaintiff to make out an argument that any

delegated legislation was ultra vires the parent statute.

17. Counsel for the plaintiff also relies on the decision of the Supreme Court in Laurentiu v. Minister for Justice [1999] 4 I.R. 26 in

which it was held that the provision vesting the power to expel third country nationals in the Minister for Justice, namely s. 5(1) of

the Aliens Act 1935, was invalid having regard to Article 15.2.1 of the Constitution as the primary legislation did not set out sufficient

principles and policies by which to guide the discretion of the Minister and therefore the provision did not meet the principles and

policies test set out in Cityview Press and Anor v. An Chomhairle Oiliúna and Ors [1980] 1 I.R. 381. At p. 93 of his decision Keane J.

recognised that the power concerned was “clearly a power of an executive nature, since it can be exercised by the executive even in

the absence of legislation” but held that this was not the same as saying that “its exercise cannot be controlled by legislation.” That

power had come within the realm of control of the Oireachtas and therefore it was held at p. 96 that the power which the Aliens Act

gave to the Minister “to determine the policies and principles by reference to which the power…to deport aliens should be exercised

was inconsistent with the exclusive role in legislation conferred on the Oireachtas by Article 15.2.1.” Counsel also relied on the

decision of Denham J. in which it was stated at p. 61 that:

“[t]he Oireachtas may not abdicate its power to legislate. To abdicate would be to impugn the constitutional scheme…it is

for the Oireachtas to establish the principles and policies of legislation. It may delegate administrative, regulatory and

technical matters.”

Counsel submits that the decision of the Supreme Court in Laurentiu is on all fours with the facts at issue in these proceedings in that

the power to proscribe substances is an executive power already vested in the Oireachtas which has the sole and exclusive power to

determine which behaviours are classified as criminal and which are not. While it is entitled to pass delegating legislation it is not

entitled to abdicate its legislative function in permitting another body, in this case the Government, the power to decide what

behaviour should be classified as criminal.

18. Counsel submits that s.2 of the Misuse of Drugs Act 1977 delegates a power greater than the mere filling in of technical details to

the Government and that while the policy in relation to the control of substances of misuse may be complex it could not be described

as purely technical in nature. She also states that there are no discernable principles and policies to be found in the specific provision

which is challenged on this application or in the legislative scheme of the Act as a whole. It was submitted that the question is not

whether the policy actually implemented by the Government in exercising this power is reasonable in the circumstances but whether

the principles and policies which act as guidance for the Government are actually present in the Act.

19. Counsel for the plaintiff also submitted that even on the evidence of Ms. Kinsella it does not appear to be the case that the

Government has only had regard to the purpose of the Act which the defendant submits can be discerned from the long title, namely

the control of harmful and dangerous drugs in the sense of drugs harmful to human health, but that the Government has had regard

to other concerns such as public order concerns and the integrity of the economy and social services. It is clear that concerns such

as this are not mentioned at any relevant point in the Act.

20. Counsel also submits that in the case of the specific facts at issue in this instance the power given to the Government is

proscriptive rather than prescriptive and therefore is much more wide ranging than would be required of a provision that satisfied the

test set out in Cityview. It is open to the Oireachtas to pass prescriptive legislation such as the Criminal Justice (Psychoactive

Substances) Act 2010 and counsel submits that the fact that proscriptive legislation was chosen in the case of the 1977 Act

demonstrates that the actual legislative intention was for the Oireachtas to retain the power to proscribe substances, subject to a

mere residual power in the Government to pass secondary enabling legislation related to the Act of 1977.

21. Article 15.2.1 of the Constitution states that: “The sole and exclusive power of making laws for the State is hereby vested in the

Oireachtas: no other legislative authority has power to make laws for the State.” The principles and policies test which was set out

by O’Higgins C.J. in Cityview Press and Anor v An Chomhairle Oiliúna and Ors [1980] 1 I.R. 381 has been expanded and developed in a

number of subsequent cases. In John Grace Fried Chicken Ltd. & Ors v Catering Joint Labour Committee & Ors [2011] 3 I.R. 211

Feeney J. analysed a number of the recent cases in this area and provided a summary of the seventeen most useful factors which are

to be taken into account in assessing whether a specific legislative provision satisfies the principles and policies test. This is not an

exhaustive list of the factors which can be taken into consideration by the Court in determining a question such as this. At para. 22

of that decision Feeney J held that:-

“From a consideration of the decided cases…dealing with the principles and policies test, this Court can identify certain

principles, factors and considerations to apply and take into account in addressing the principles and policies test. They

are as follows:

(1) In applying the test it is necessary to strike a balance between the protection of the exclusive lawmaking domain of

the Oireachtas and the proper function of the legislature.

(2) In carrying out that balance the Court is carrying out a function which it must exercise, in an appropriate case, to

ensure that a party affected by an ultra vires delegation of power has an effective remedy.

(3) The principles and policies test is a flexible test.

(4) If the legislation being considered is technical or complex, due account must be paid to that fact.

(5) In addressing the test, the Court must first look at the particular legislation and seek to identify and ascertain the

principles laid down by the Oireachtas.

(6) In addressing the principles and policies test, the purpose of the legislation under consideration is of real significance

and provides the backdrop against which the test is to be applied.

(7) In the event that the Court can identify principles and policies it is permissible for the delegated body to fill in the

details and to make choices and decisions within those principles and policies without such actions on the part of the

delegated body being deemed ultra vires.

(8) In seeking to identify the principles and policies, the Court should have regard to the entire statute and not just the

section challenged. The full terms of the statute require to be considered as is any policy or guiding principles which can

be identified within the Act.

(9) One of the factors to consider in addressing the question as to whether or not there has been an ultra vires

delegation is whether the Oireachtas has reserved to itself a power of supervision including the power of revocation or

cancellation.

(10) The effect and consequence of an order made by a delegated body can be a factor to take into account particularly

if the effect is to create a criminal offence.

(11) In addressing the principles and policies test, the Court should consider the circumstances and context of the

legislation including an evaluation of what is fundamental and a consideration of whether the matters are fundamental.

The Court must consider whether the fundamental matters dealt with by the delegated body are identified in the

principles and policies in the Act.

(12) A central issue underlying all consideration by the Court of the principles and policies test is the question can

standards, goals, factors and/or purposes be identified?

(13) A potentially useful way to address the issues in a particular case include the Court carrying out the task of

determining whether the principles and policies (including goals, factors, standards and purposes) identified and relied

upon by the defendant or defendants can properly be identified and located within the legislation.

(14) The absence of any particularity does not render a delegation ultra vires if it can truly be said that standards, goals,

factors and purposes have been specified.

(15) If the principles and policies test is satisfied by a defendant or defendants the Court has no function in adjudicating

on whether the decision taken by the delegated body is one the Court would have made.

(16) In looking at the question as to whether principles and policies have been identified and have been identified

adequately to comply with Article 15.2.1, the Court can recognise that Administrative Bodies can be given tasks or

delegated functions under Statute, and that these will vary, and that when given such tasks or functions, the delegate

can exercise expert judgment, using accumulated knowledge, but the judgment always requires to be guided by specified

principles and policies.

(17) If the legislation and/or Statutory Instrument impugned no longer applies or is no longer of any importance the Court

should abstain from deciding the issue…”

22. Counsel for the plaintiff placed significant emphasis on a number of these factors. It was submitted that Factor No. 10 above,

that the effect and consequence of delegated legislation, in particular its creation of a criminal offence, can be taken into account in

deciding whether the provision in question fails to meet the principles and policies test, is relevant in this case given that the issuing

of a statutory instrument recognising a new substance as a “controlled” substance for the purposes of s.2 of the Misuse of Drugs Act

1977 effectively rendered the possession of that substance or the possession of that substance with the intention to sell it, a criminal

offence under s.3 and s.15 and s.27 of the Act as amended.

23. Counsel also relied on the decision of Hogan J. in Douglas v D.P.P [2013] IEHC 343 where it was held that s.18 of the Criminal Law

Act 1935, which made it an offence to commit an act in a public place “in such a way as to offend modesty or cause scandal or injure

the morals of the community,” was unconstitutional as it was too vague in nature to attract criminal liability. However Hogan J also

held at para. 58 of his decision that:

“…the section also fails the Cityview Press test inasmuch as the Oireachtas has failed to articulate clear principles and

policies which mark out that conduct which is prohibited and that which is not. To that extent, therefore, I would hold

that the relevant offences contravene Article 15.2.1 and, for that matter, Article 15.5.1.”

Counsel submits that this decision is authority for the proposition that an act cannot attract criminal liability unless the Oireachtas

has articulated clear principles and policies to determine what conduct is prohibited and what conduct is not prohibited.

24. Counsel also submitted in relation to Factors No. 12 and 13 above, that no standards, goals, factors and/or purposes can be

discerned from the Act as a whole. In this instance the power in s. 2 of the Act is delegated to the Government which is not an

expert panel or a panel with any greater technical capacity than any other member of the Oireachtas. Therefore the rationale for

delegating this issue, as a technical or complex issue, to the Government, is questionable. It was submitted that the Act does not

contain any discernable principles or polices other than a number of general objectives which are set out in the long title of the Act

and that the defendant does not plead the existence of any such principles or policies.

25. The long title of the Act states that the purpose of the Act is the prevention of “the misuse of certain dangerous or otherwise

harmful drugs.” This is a phrase which does not relate to the power delegated by s. 2(2) of the Act but which relates to the

regulation of the sale and distribution of certain drugs rather than the creation of a criminal offence by the classification of a

substance as “controlled.” Counsel also submits that the word “harmful” is not sufficiently specific to constitute in itself a principle or

policy which could satisfy the Cityview test, since it could refer to harm to human health but also to other harm such as economic

harm or harm to the efficiency of provision of health services for example. It is also clear, according to counsel, that the Act is not

limited to substances which are objectively harmful but could also cover substances which have not historically been the subject of

misuse but have become more open to abuse since the promulgation of the Act, for example codine or alcohol. Counsel submits that

the provision should at least set out the basis on which a substance can be classified as “controlled” such as if it is found to be a

danger to public health or public safety. The long title of the Act when it refers to “certain dangerous or harmful drugs” defines

“certain” with reference to the drugs already listed in the Schedule to the Act and does not refer to drugs which are objectively

harmful.

26. Counsel also submits that it was argued in John Grace Fried Chicken Ltd. & Ors v Catering Joint Labour Committee & Ors [2011] 3

I.R. 211 that the preamble to the Industrial Relations Acts at issue in that case set out that the purpose of those acts was to

promote harmonious industrial relations and the desirability of settling trade disputes. However it was held by Feeney J. that the

preamble did not go further than setting out the objectives of the legislation and that this did not amount to the principles and

policies to govern the exercise of the delegated legislation. The desirability of achieving a specific purpose is not sufficient to amount

to a principle or policy within the meaning of the test in Cityview Press and Anor v An Chomhairle Oiliúna and Ors [1980] 1 I.R. 381.

While the Misuse of Drugs Act 1977 does set out in its long title that its objective is to prevent the misuse of certain dangerous and

harmful drugs this does not amount to a principle or policy.

27. Counsel also submitted that the Court was limited in its jurisdiction in that it could only decide the case on the contents of the

pleadings as presented and that the defendant has not set out in the pleadings what principles and policies are to be found in the

Act.

28. Counsel indicated, by way of illustration, that a similar provision, s. 78 of the Health Act 1970 does not fall foul of the same

complaint which is made of s. 2 of the Misuse of Drugs Act 1977 in these proceedings in that it provides adequate principles and

policies for the exercise of the power delegated therein, particularly in s. 78(6). Counsel suggested that a similar approach could have

been taken in relation to s. 2(2) of the Act of 1977 and that this would have rendered the provision constitutional, but this was not

done. Section 78 of the Health Act 1970 provides:

“(1) The Minister may make regulations for the control of the possession of a substance to which this section applies.

(2) Regulations under this section may provide for the prohibition of the possession of a substance to which the

regulations relate, except by persons or classes of persons specified in the regulations and in circumstances and under

conditions specified in the regulations.

(3) A person who contravenes or attempts to contravene a regulation under this section or who solicits or incites another

person to contravene such a regulation shall be guilty of an offence...

(6) This section applies to any substance which may be used in the prevention, diagnosis or treatment of any human

ailment, infirmity, injury or defect, or for the modification of any human physiological function, and which, in the opinion of

the Minister, produces or is capable of producing depressant, stimulant or hallucinogenic effects on the human central

nervous system.”

29. Counsel also places reliance on the decision of the Divisional High Court in Collins v Minister for Finance [2013] IEHC 530 in which

provisions of the Credit Institutions (Financial Support) Act 2008 which granted the Minister for Finance the power to create

promissory notes were challenged as in breach of Article 15.2.1 of the Constitution and the principles and policies test set out in

Cityview Press and Anor v An Chomhairle Oiliúna and Ors [1980] 1 I.R. 381. The Court held at paras. 110-111 of its decision:

“110. Section 2 recites that the Minister has these powers because, having consulted with the Governor of the Central

Bank and the Financial Regulator, he is of “the opinion” that:

“….(a) there is a serious threat to the stability of credit institutions in the State generally, or would be such a

threat if those functions were not performed,

(b) the performance of those functions is necessary, in the public interest, for maintaining the stability of the

financial system in the State, and

(c) the performance of those functions is necessary to remedy a serious disturbance in the economy of the State.”

111. These three conditions plainly govern and circumscribe the scope of the Minister’s discretion in a significant fashion.

The effect of this is that the Minister can only give financial support where he is of opinion that there is (i) a serious

threat to the stability of the banking sector; (ii) the giving of such support is necessary to maintain the stability of the

State’s financial system and (iii) this is also necessary to restore equilibrium in the wider economy. By fixing the

parameters of the Minister’s discretion, the section complies with the principles and policies test. It prescribes justiciable

yardsticks against which the exercise of that discretion can, if necessary, be judicially evaluated. The guiding policy of

the 2008 Act , therefore, was that the Minister was empowered to provide such financial support by way of the making of

such capital contributions required at any given point in time to enable the relevant credit institutions to remain solvent

and to comply the minimum capital and other regulatory requirements… the exercise of the Minister’s powers under the

2008 Act could have been judicially evaluated and reviewed in an appropriate case by reference to these very specific

statutory standards.”

Counsel submits that if s. 2 of the Misuse of Drugs Act 1977 had set out policies such as those in the provision at issue in Collins it

would pass the principles and policy test, but this is not the case. In addition it is submitted that the absence of principles and

policies in s. 2 of the Act of 1977 renders it difficult if not impossible for any potential plaintiff to seek judicial review of any exercise

of this discretion by the Government since there are no criteria set down in the legislation by which to measure such conduct.

30. Counsel also submits in the alternative that the Government have exercised the power in s. 2(2) of the Act in an unconstitutional

manner. Provided that s. 2 can be read as constitutional, it is argued that the Order is ultra vires the provision as the Government

has not stayed within the boundaries of the provision but rather trespassed into the area of creating legislation. Counsel relies on s.

38(2) of the Act which provides that:

“Regulations under this Act may apply to controlled drugs generally, to controlled drugs of a prescribed class or

description, or to one or more prescribed controlled drugs.”

It is submitted that the Act therefore says nothing about regulations being made to proscribe drugs which are not already controlled

or to classify substances as “controlled” by regulation only. It appears to limit the use of regulations to drugs already included in the

Schedule to the Act. Counsel also relies on the decision in Leontjava v D.P.P [2004] 1 I.R. 591 in which it was held that regulations

which went beyond the power delegated by the primary legislation, by imposing a condition not provided for by the Oireachtas, were

ultra vires and were therefore invalid.

31. Counsel also referred to the decision of Denham J. in McDaid v Sheehy [1991] 1 I.R. 1 and submitted that this case was relevant

because it also concerned a criminal offence which was created by delegated legislation. This case related to a power delegated to

Government to impose duties on products under the Imposition of Duties Act 1957. The two questions which the Government had to

answer in this instance were what goods a duty should be imposed upon and the amount of the duty to be imposed. The Court held

that this meant the legislation failed the principles and policies test. On the facts of the current proceedings the Government must

decide which drugs are to be criminalised and there is a possible life sentence attaching to some of the offences thereby created.

Counsel submits that this situation is analogous to that in McDaid and that the Court should have regard to this decision. In response

counsel for the defendant stated that it had not been submitted in McDaid, as is being submitted in the current proceedings, that the

object of the legislation could be found in the text itself. That case was more clear cut in that a large discretion verging on policy

making rather than policy implementation was within the realm of the delegated power.

Submissions on behalf of the Defendants

32. Mr. Barron S.C., counsel on behalf of the defendants submits that the Misuse of Drugs Act 1997 must be construed in a purposive

and schematic manner. The Court must look to the entire scheme of the Act and in particular to the purpose of the Act, which it is

argued can be derived from the long title, in order to properly interpret s. 2.

33. Counsel submits that the starting point in the construction of s. 2 is the presumption of constitutionality which Hanna J. set out in

Pigs Marketing Board v Donnelly [1939] I.R. 413 at p. 417 and the well known double construction rule which was set down by Walsh

J. of the Supreme Court in McDonald v Bord na gCon (No. 2) [1965] I.R. 217 at p. 239. Counsel further relied on a statement by

Walsh J. in East Donegal Co-operative Livestock Mart Ltd. v The Attorney General [1970] I.R. 317 to the effect that any provision,

the constitutionality of which is being tested, must be read in the wider context of its position in the whole legislative scheme

concerned. Walsh J. stated at p. 341 that:

“The long title and the general scope of the Act [in question] constitute the background of the context in which it must

be examined. The whole or any part of the Act may be referred to and relied upon in seeking to construe any particular

part of it, and the construction of any particular phrase requires that it is to be viewed in connection with the whole Act

and not that it should be viewed detached from it. The words of the Act, and in particular the general words, cannot be

read in isolation and their content is to be derived from their context. Therefore, words or phrases which at first sight

might appear to be wide and general may be cut down in their construction when examined against the objects of the Act

which are to be derived from a study of the Act as a whole including the long title. Until each part of the Act is examined

in relation to the whole it would not be possible to say that any particular part of the Act was either clear or

unambiguous.”

Walsh J. further stated at p.344 that all of the powers granted to the secondary body, in this case the Minister, are powers “which

may be exercised only within the boundaries of the stated objects of the Act.”

34. The decision of the High Court in United States Tobacco International Inc. v The Minister for Health [1990] 1 I.R. 394 was

submitted to be instructive. In this case the Minister for Health was given the power under s. 66 of the Health Act 1947 to impose

restrictions on the import, manufacture or sale of “restricted articles” and by S.I. No. 429 of 1985 the Minister declared that chewing

tobacco be considered a “restricted article” for the purposes of this Act. In that instance s. 66 of the Health Act 1947 provided that

the Minister could make such an order in relation to substances (which were defined by s. 39 of the Act of 1947 as “natural or

artificial…whether in solid or liquid form or in the form of a gas or vapour, including a preparation or manufactured article or article

which has been subjected to any artificial treatment or process”) which “he is of opinion [are] likely, when accessible to the general

public, to be used for the purposes of involving risk of serious injury to health or body.” Counsel submits that when read literally these

provisions seem sufficiently wide to permit the Government to include chewing tobacco within the scope of the Act. However, by

taking a purposive and schematic reading of the Act in question, including the long title of the Act, Hamilton J. held that this was not

the case. Hamilton J. looked to the object of the legislation and held at p. 403 that the Minister’s power under this provision was

restricted to:

“…substances which are sold under a proprietary designation and which may be used for the prevention or treatment of

any human ailment, infirmity, injury or defect, any other prophylactic, diagnostic or therapeutic substance which may be

used for the prevention or treatment of any human ailment, infirmity, injury or defect and substances which are sold

under proprietary designation to be applied for toilet or cosmetic purposes to the human body or any part thereof and to

articles such as instruments, appliances or apparatuses of a class as respects which he is of the opinion that the use by

the general public of instruments, appliances or apparatuses of that class involved risk of serious injury to health or

body.”

Therefore it was held by the Court that the Minster had exercised his power ultra vires the primary legislation in declaring chewing

tobacco to be subject to the restrictions of the Health Act 1947 as it could not be said to be such a substance. In reaching this

construction of s. 66 Hamilton J had taken account of a number of interpretive rules such as noscitur a sociis (a word or expression is

known from its companions), the concept that words should be interpreted in their context rather than based on their literal meaning

if that would result in an absurdity and the idea that the purpose of the Court in interpreting legislation was to discern the intention

of the Oireachtas in enacting that legislation. The Court considered the long title of the Act of 1947 and the heading of Part VI of the

Act of 1947 which contained s. 66 and which was stated to deal with “medical and toilet preparations and certain other articles” and

held that, following the noscitur a sociis rule, the definition of what could fall under the term “certain other articles” would be

determined by the forgoing terms – “medical and toilet preparations” - and the latter could not include chewing tobacco on any

reasonable interpretation.

35. Counsel suggests that a similar approach can be taken to the legislation at issue before this Court. The long title to the Act

states that the purpose of the legislation is “…to prevent the misuse of certain dangerous or otherwise harmful drugs…” Section 3 of

the Act provides for restriction of possession of certain controlled drugs and s. 5 provides for Regulations to be made to prevent the

misuse of controlled drugs, including the prohibition of their manufacture, importation, supply and transportation as well as controls on

packaging and labelling drugs, requiring prescribed particulars to be printed on packaging. Section 5 of the Act permits regulations to

be made by Government to ensure that medical practitioners and pharmacists are not prevented from dealing with controlled drugs.

Section 6 and s.7 of the Act also provide for offences committed by pharmacists and practitioners in this regard. These provisions

indicate, it is submitted, that the legislation is concerned with controlling the type of substances which when used inappropriately

would be harmful or dangerous to human health. When the Act is read as a whole the power conferred on the Government by s. 2(2)

of the Act is limited to declaring substances that are dangerous or harmful within the meaning of the Act to be “controlled.”

36. Counsel submits that the phrase “any substance, product or preparation” which is contained in s. 2(2) of the Act must bear the

same meaning as it does in s. 2(1) of the Act. In the latter section this phrase is used with specific reference to substances “either

specified in the Schedule to this Act or [which] is for the time being declared pursuant to subsection (2) of this section to be a

controlled drug for the purposes of this Act.” Counsel suggests that the phrase in s. 2(1) is restricted to those substances of the

same class as are found in the items listed in the Schedule to the Act. In reliance on the decision of the Supreme Court in Minister for

Justice, Equality and Law Reform v S.M.R [2008] 2 I.R. 242 in which it was held that there is a presumption that the same word bears

the same meaning throughout the same statute it was submitted that when used in s. 2(2) of the Act, the term “any substance,

product or preparation” should also be construed by reference to the classes of substances found in the list of items in the Schedule

and could not include substances which did not bare comparison with those substances.

37. Counsel submits that there is a principle of statutory interpretation, derived from the decision of Henchy J. in O’Domhnaill v

Merrick [1984] I.R. 151, that a statute is presumed to have been enacted in accordance and not contrary to the obligations of the

State under international law. The preambles of the United Nations Conventions of 1961 and 1971 make clear that the purposes of

those documents include dealing with the consequences of narcotic or psychotropic drug addiction for individuals and the social and

economic danger which this poses for mankind. It is suggested by counsel that when the Misuse of Drugs Act, 1977 is read in the

light of the purposes of these instruments and given the evidence of Ms. Kinsella to the effect that the Act was promulgated in the

context of these international developments, the provisions of the Act and particularly s. 2(2) can be read as being specifically

referable to these some purposes.

38. Counsel distinguishes the decision in Laurentiu v Minister for Justice [1999] 4 I.R. 26 from the facts as they prevail in this case. It

is submitted that the long title of the Aliens Act 1935, which was challenged in Laurentiu, did not provide sufficient guidance as to

the intention of the Oireachtas in promulgating that legislation. The long title merely provided that the Aliens Act was “…to provide for

the control of aliens and for other matters relating to aliens…” and that this was insufficient to allow the provision in question to pass

the principles and policies test. However, the long title of the Act of 1977 is much clearer in that it clearly indicates that the purpose

of the Act is to control the sale and distribution and use of certain dangerous and harmful drugs. Counsel contrast the decision in

Laurentiu with the decision of the Supreme Court in Leontjava v D.P.P [2004] 1 I.R. 591 which also dealt with a provision of the Aliens

Act 1935 which provided that the Minister could by way of order require aliens to comply with particular provisions as to registration,

change of abode, travelling, employment and related matters. The Court held in Leontjava that the principle and policies in this

legislation were clear. Keane C.J. stated at p. 624 that:

“The policy enunciated is plain: the desirability of regulating the registration, change of abode, travelling, employment and

occupation of aliens while in the State and the further desirability of regulating "other like matters". The use of the

expression "particular provisions" in this context is, in my view, unexceptionable; it was entirely appropriate for the

legislature to specify the matters which it considered required regulation, while leaving it to the Minister to put in place

specific regulatory provisions. Similarly, the use of the expression "other like matters" is what one would expect in a

provision conferring a power of delegated legislation; the use of the phrase "other like matters" is peculiarly appropriate

where the broad scope of the envisaged regulations is being set out in statutory form.”

Counsel submits that this case, and the contrasting decision in Laurentiu indicate that it is the subject matter of what is delegated,

rather than the expression of principles and policies, that determines whether there has been an excessive delegation of legislative

power.

39. Counsel also submits that if the delegated power is narrow in nature, being delegated to address some specific measure rather

than wide, then it is not necessary for there to be detailed guidance given to the Minister or other delegated body prescribing the

extent of the discretion in question. The exact requirement for principles and policies will be determined by the nature of the power

delegated. If the power is narrow in nature this means that there need be no more than an identifiable policy in the legislation that

the delegated power is designed to give effect to. This is the distinction which Counsel submits exists between the decisions in

Laurentiu v Minister for Justice [1999] 4 I.R. 26 and Leontjava v D.P.P. [2004] 1 I.R. 591. Counsel submits that the power delegated

by s. 2(2) of the Act is narrow in nature and relates to a very specific context and therefore it was not necessary for the legislature

to outline in the Act anything more specific than the simple purpose of the legislation set out in the long title.

40. Counsel also refers to the ninth factor set out by Feeney J. in his decision in John Grace Fried Chicken Ltd. & Ors v Catering Joint

Labour Committee & Ors [2011] 3 I.R. 211 where the Court held that one of the factors to be taken into account is whether the

Oireachtas has reserved to itself a power of supervision including the power of revocation or cancellation. Counsel points to s. 38(3)

of the Act which provides:

“Every regulation and every order made under this Act (other than an order under section 8 (8) or an order referred to in

section 11 or section 28) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a

resolution annulling the regulation or order is passed by either such House within the next twenty-one days on which that

House has sat after the regulation or order is laid before it, the regulation or order, as the case may be, shall be annulled

accordingly but without prejudice to the validity of anything previously done thereunder.”

Counsel submits that this power of review retained by the Oireachtas was also relied on by the Courts in Cityview Press and Anor v An

Chomhairle Oiliúna and Ors [1980] 1 I.R. 381 and McGowan and Ors. v Labour Court and Anor. [2013] IESC 21 in finding that the

provisions challenged in each of those cases were not unconstitutional. In response to this point counsel for the plaintiff submits that

though this may be the case it must be recognised that such an annulment resolution would be passed without prejudice to any

action taken on foot of the Act according to s. 38(3) and therefore an individual charged with an offence under the Act, which could

result in life imprisonment, would not benefit from such a resolution if the regulations were subsequently annulled.

41. It was also submitted that the legislation should be looked at in its historical context. When the nature of the Dangerous Drugs

Act 1934 and its position as a pre-cursor to the Misuse of Drugs Act 1977, which was a development of the earlier Act is taken into

account, it becomes clear that the legislation can only relate to drugs of misuse and would not have a wider application for example

to tobacco and alcohol. The fact that drugs legislation, both nationally and internationally, was in constant evolution during the 20th

century to take into account the rapid emergence of new drugs, is also relevant to the Court’s construction of the provision at issue.

It is obvious that the mechanism in s. 2(2) was influenced by other similar international mechanisms such as the UN Conventions of

1961 and 1971 which deal with this problem.

42. Counsel also relied on a statement of McKechnie J. in BUPA Ireland Ltd. v Health Insurance Authority [2006] IEHC 431 which

highlighted the rationale behind the delegation of legislation. The Court stated at para. 146:

“…[I]n adjudicating upon an issue involving Article 15 of the Constitution, the courts must reflect the reality of the

subject which the legislature is addressing and of the implementing method best chosen by it for that purpose. If what is

involved, or sought to be achieved, is complex, technical or designed to operate as part of a dynamic and evolving model,

capable of business like adjustment, then a subordinate body may be a much more suitable vehicle (indeed on occasions

perhaps the only suitable vehicle) for the implementation and achievement of legislative objectives. If, on the other hand,

the subject matter is easily capable of exact definition with established parameters then there may be no justification

whatsoever in the exercise of delegatory power. So it all depends on the individual circumstances of a given case, which

however must always be determined against the backdrop of a statutory framework in which “the principles and policies”

of the legislator are set forth.”

Counsel submits that this quote is an example of the holistic approach which has been taken by the courts in recent years with

regard to this test. The Courts have taken the view that it is appropriate to examine the provision which has been challenged in the

round, taking account of the many different nuances of fact and law which can apply in relation to the construction of a particular

provision.

43. Therefore, counsel submits that s. 2(2) of the Act is not in breach of Article 15.2.1 of the Constitution and the Order is not ultra

vires the primary legislation since there are adequate principles and policies in the legislation to guide the exercise of the discretion

delegated to the Government in this regard.

Conclusion

44. The Court, in construing s. 2(2) of the Act, must keep in mind the presumption of constitutionality which all post 1937 legislation

benefits from as stated by Hanna J. in Pigs Marketing Board v. Donnelly [1939] I.R. 413 at p. 417. The Court must also bear in mind

that it has at its disposal a large number of other rules and canons of legislative construction which it may employ to interpret s. 2(2)

of the Act. In particular it must be remembered that this provision cannot be read in isolation but must be read in the context of the

overall scheme of the Misuse of Drugs Act 1977 and with a view to discerning the actual intention of the Oireachtas in enacting this

provision. As Walsh J. stated in East Donegal Co-operative Livestock Mart Ltd. v. The Attorney General [1970] I.R. 317 at p. 341:

“words or phrases which at first sight might appear to be wide and general may be cut down in their construction when

examined against the objects of the Act which are to be derived from a study of the Act as a whole including the long

title.”

45. Counsel for the defendant submits that the courts have taken a “holistic” approach to the application of the principles and

policies test in recent years. Rather than focusing on the narrow terms of the provision being challenged the courts have taken

cognisance of a large number other factors in attempting to determine whether a provision is in breach of Article 15 of the

Constitution or not. Feeney J. in John Grace Fried Chicken Ltd. & Ors v. Catering Joint Labour Committee & Ors [2011] 3 I.R. 211

stated, in summarising the relevant aspects of the principles and policies test at para. 22 of his decision, that “the principles and

policies test is a flexible test.” This is borne out by the number of factors in the non-exhaustive list set out in that decision to which

the Court may have regard in coming to its conclusion including the purpose of the legislation as derived from the entire statute, the

existence of a power of supervision retained by the Oireachtas and the consequence of an order made by a delegated body

particularly if the consequence is the creation of a criminal office. But the Court is also permitted to have regard to the

“circumstances and context of the legislation including an evaluation of what is fundamental and a consideration of whether the

matters are fundamental.” It is this holistic approach which the Court must take when construing s. 2(2) of the Act.

46. This legislation is not the first time that the Oireachtas has provided for the control of certain drugs within the State. The

Dangerous Drugs Act 1934 provided for the regulation and control of “the imporation, exporation, manufacture, sale and use of opium,

morphine, cocaine and other dangerous drugs, and for purposes connected with the matters aforesaid.” This latter Act was more

specific in some regards than the Act of 1977 in that it named in its long title and its provisions a number of specific substances

which it aimed to regulate. However, as the evidence of Ms. Kinsella made clear, new substances and patterns of misuse emerge at a

rapid place and legislation in such a format frequently has difficulty in keeping up to date with such developments and is thereby

often rendered ineffective after a short number of years. The 1977 Act attempts to deal with this problem by ensuring that it does

not, other than in its Schedule, name any specific substances which it seeks to define as “controlled”. Section. 2(2) of the Act

ensures that the Government can keep apace with new developments and that there will not be a need to completely renew the

legislative scheme after a few short years. However, that is not to say that there are no principles and policies in the Act of 1977

which can give guidance to the Government in the exercise of its discretion.

47. The purpose of the legislation according to the long title of the Act is the control of “certain dangerous and otherwise harmful

drugs.” The Act creates a number of general offences related to the possession simplicter of controlled drugs (s. 3 of the Act) and

the possession of a controlled drug with the intention to sell or otherwise supply that drug to a third party (s. 15 of the Act).

However, it also creates a number of more specific offences related to certain specific substances such as in s. 16 where it is

provided that:

“16.—(1) A person shall not—

(a) smoke or otherwise use prepared opium,

(b) frequent a place used for the purpose of smoking or otherwise using prepared opium, or

(c) have in his possession—

(i) any pipes or other utensils made or adapted for use in connection with the smoking of opium, being pipes or

utensils which have been used by him or with his knowledge and permission in that connection or which he intends

to use or permit others to use in that connection, or

(ii) any utensils which have been used by him or with his knowledge and permission in connection with the

preparation of opium for smoking.

(2) A person who contravenes a provision of subsection (1) of this section shall be guilty of an offence”

Section 17 of the Act also prohibits the cultivation of the opium poppy and any plants related to cannabis. Section 19 imposes

criminal liability on the occupier of land or any person concerned in the control or management of land if that person knowingly permits

or suffers the cultivation of opium or cannabis or the occurrence of certain other activities related to these substances on this land.

The Act also provides powers to An Garda Síochána related to the investigation and prosecution of offences arising from the scheme

of this Act and imposes a series of onerous penalties, under s. 27, on persons found guilty of offences under this Act. Section 28 of

the Act provides that a Court has the power to remand persons convicted of offences under this Act and to compel the provision to

the Court of a report in relation to the medical condition as well as the socio-economic background of the convicted person and to

compel health and welfare authorities to provide the Court with recommendations as to the care which the convicted person is

considered to need. Section 28(2) of the Act permits a Court, if in its opinion the welfare of the convicted person warrants such

action, to replace the imposition of a penalty under s. 27 of the Act with the entering of a recognisance by the person containing a

number of conditions regarding the supervision of the person by the relevant authorities, a requirement that the person undergo

medical treatment, a condition that the person attend for treatment at a particular place, a condition that the person attend some

educational or vocational course or rehabilitation in order to reduce the likelihood of further offences. The purpose of these provisions

is clearly to discourage the misuse of dangerous and harmful substances by individuals and to deal with the consequences of such

misuse as and when it arises.

48. In addition the Schedule to this Act lists a large number of substances, including opiates, L.S.D, cocaine etc. which were

classified as “controlled” by the legislature at the time of the enactment of this legislation. Some of these substances are commonly

known substances of misuse, others would only be familiar to a pharmacist or chemist. According to Statutory Interpretation in

Ireland, David Dodd, (Dublin, 2008) at para. 3.38 the author states:

“Generally, the same rules of statutory interpretation apply to the schedule of an Act as apply to a main body. As a

schedule is characteristically part of an enactment, it may aid interpretation of the legislature’s intention in respect of

other parts of the enactment. This is a specific manifestation of a provision being interpreted in light of the enactment as

a whole.”

49. For example in Rodgers v Mangan [1999] IEHC 238, Geoghegan J. interpreted the Third Schedule to the Court’s (Supplemental

Provisions) Act 1961 using the literal and historical methods of interpretation which the court had also used with the main body of

that Act indicating that the courts in this jurisdiction have generally interpreted schedules appended to legislation in the same manner

as the legislation itself unless there is a specific and clear conflict between the provisions of the Schedule and the provisions of the

Act as occurred in Burke v The Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin [1991] 1 I.R. 341 where the

Supreme Court refused to reach a Schedule to the Housing Act 1966 as exhaustive of the factors which the defendant was required

to consider in relation to the fitness of a house for habitation as provided under that Act. It was held that the Schedule could not

limit s. 66 of the Act in this regard. However no such conflict arises in this instance and the Court accepts that the Schedule to the

Misuse of Drugs Act 1977 may be used to interpret the legislative intention and policy behind s. 2 of the Act. In addition, in the

decision of the Supreme Court in Minister for Justice, Equality and Law Reform v S.M.R [2008] 2 I.R. 242 it was held that there is a

presumption that the same word bears the same meaning throughout the same statute. The Court accepts, having regard to the

decision in that case, the submission made by counsel for the respondent that when used in s. 2(2) of the Act, the term “any

substance, product or preparation” should also be construed by reference to the classes of substances found in the list of items in

the Schedule and could not include substances which do not bear comparison with those substances.

50. However, it is also clear from the scheme of the Act that one of the main purposes of the legislation is to regulate and provide for

the consequences of the misuse of certain drugs. The scheme of the Act creates a number of criminal offences and recognises and

those convicted of those offences will frequently, but not always, be suffering from drug addiction themselves.

51. It is true that the Act also made a number of changes to the law in relation to the supply of controlled substances by medical

practitioners, dentists, veterinary surgeons and pharmacists. While this may initially seem incongruous with the overall purpose of the

Act it is clear that these provisions simply regulate those professions which may have, for their own purposes, easier access to the

substances which are listed as controlled within the meaning of the Act. This does not dilute the overall purpose of the Act, which

can be taken from the legislation as being the control of those substances which are most commonly abused and misused by

individuals. It is the view of this Court that there are adequate principles and policies discernible from the overall scheme of the

legislation to guide the Government in the exercise of the discretion delegated to it by s. 2(2) of the legislation and to permit any

person dissatisfied with the exercise of that discretion to seek adequate judicial review of such actions. The term “any substance,

product or preparation” which is at issue in s. 2(2) of the Act must clearly be read in the context of the legislative scheme as

described above and with a view to the overall purpose of the legislation as evident from that scheme, namely the protection of

individuals and society from the effects of the misuse of certain harmful and dangerous substances.

52. In addition it must be recognised that the line between law making and the implementation of law is not always easy to draw.

However, as was stated by the Court in Cityview Press and Anor v An Chomhairle Oiliúna and Ors [1980] 1 I.R. 381 at p. 399:

“…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.”

53. In this instance, as the evidence of Ms. Kinsella made clear, the emergence of new substances and patterns of misuse is a regular

and frequent occurrence. The Oireachtas may not always be able to act with sufficient speed to address the urgency of newly arising

situations. In addition the classification of new substances of misuse is a complex and technical process. The policy of the Oireachtas

is already clear from the legislation; to control and regulate those substances which are subject to misuse and which would cause

harm to human health and to society as a whole if not controlled. This is clear from the simple policy decision taken by the Oireachtas

in this legislation to criminalise the activities in question. McKechnie J. in BUPA Ireland Ltd. v. Health Insurance Authority [2006] IEHC

431 stated at para. 146:

“If what is involved, or sought to be achieved, is complex, technical or designed to operate as part of a dynamic and

evolving model, capable of business like adjustment, then a subordinate body may be a much more suitable vehicle

(indeed on occasions perhaps the only suitable vehicle) for the implementation and achievement of legislative objectives.”

It cannot but be the case that the classification of new substances and patterns of misuse is a dynamic and evolving task, that it is

technical in nature and requires a level of skill which members of the Oireachtas would not necessarily have. That this complex task

should be delegated to the Government, to be dealt with in the preliminary stages by members of the civil service and other public

servants employed by the executive, is not unusual.

54. The Court is also influenced by the power of review and annulment of any regulations which are created under s. 2(2) of the Act

which is retained by the Oireachtas under s. 38(3) of the Act. Such a power of supervision is an important safeguard and must

influence the Court’s “holistic” view of this legislation. Feeney J. at para. 22 of his decision in John Grace Fried Chicken Ltd. & Ors v

Catering Joint Labour Committee & Ors [2011] 3 I.R. 211 states that one of the factors to be taken into account by a court which is

faced with this issue is whether or not the “Oireachtas has reserved to itself a power of supervision including the power of revocation

or cancellation.” Given that this is the case in this instance this provision assists the Court in coming to its conclusion.

55. It cannot be said that the legislation at issue in the within proceedings is vague in the nature of s.18 of the Criminal Law Act

1935, which made it an offence to commit an act in a public place “in such a way as to offend modesty or cause scandal or injure the

morals of the community,” which was at issue before Hogan J. in Douglas v D.P.P [2013] IEHC 343. As was held in that case criteria

such as “modesty” and “the morals of the community” for the creation of a criminal offence are overly vague and leave the criminal

law open to uncertainty. The same cannot be said in this instance given that the Schedule to the Act provides a clear list of

controlled substances and given that the exact names and chemical formulae of any new controlled substances which would be so

designated by the powers invested in Government under s. 2(2) of the Act would be set out in a statutory instrument. It cannot be

said that this legislation falls foul of the principles and policies test in the clear way which s. 18 of the Criminal Law Act 1935 did.

56. The rationale behind the principles and policy test as stated in many of the cases on this point is that the purpose of the

legislative provision in question must be sufficiently clear to allow a litigant to effectively challenge by way of judicial review the

delegated legislation or other administrative action taken under the Act. The Misuse of Drugs Act 1977 is not deficient in this regard.

The principles and policy behind the legislation are self evident. This Court does not agree with counsel for the applicant’s

characterisation of the provision as permitting the Government the option of designating substances in daily use such as correction

fluid or alcohol as “controlled” within the meaning of the Act. The legislative context, historical perspective and the scheme of the

Act all make it clear that this legislation aims to control substance 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. It is clear

that alcohol for example is not intended to be controlled by this legislation as there is a vast corpus juris of legislation and

jurisprudence in this jurisdiction dealing with the regulation and licensing of the sale and consumption of alcohol. Legislative provisions

must be read literally and, should that not be sufficient to derive an appropriate meaning from those provisions, a purposive or

contextual approach should be taken but no reading of legislation can be pushed so far as to render the meaning derived from it an

absurdity.

57. For these reasons the Court refuses the relief sought on this application.