Supreme Court upholds Government power to add drugs to schedule under Misuse of Drugs Act 1977.

An Chúirt Uachtarach

The Supreme Court

Record number, High Court: 2012 11018 P

Appeal number, Court of Appeal: 2014/1409

Supreme Court appeal number: 2015/31

[2014] IEHC 490

[2015] IECA 38

[2016] IESC

Denham CJ

O’Donnell J

McKechnie J

Clarke J

MacMenamin J

Dunne J

Charleton J

Between

Stanislav Bederev

Plaintiff/Respondent

and

Ireland and the Attorney General and the Director of Public Prosecutions

Defendant/Appellant

Judgment of Mr Justice Charleton delivered on Wednesday the 22nd of June 2016

1. Article 15.2.1º of the Constitution vests the “sole and exclusive power of making laws for the State … in the Oireachtas”. Stanislav

Bederev, the plaintiff/respondent, faces a charge on the criminal possession of a drug called methylethcathinone. This drug was not

included in the schedule of controlled drugs originally appended to the Misuse of Drugs Act 1977. Instead, it was added by order of

the Government pursuant to the Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) Order, 2011, SI No 551 of 2011. While this

drug is agreed by both sides to be a dangerous drug akin to amphetamine, and while the Act of 1977 at section 2(2) allows the

Government to add drugs to the schedule, thus criminalising their possession and sale, this subsidiary legislative action is contended

by Stanislav Bederev to be law-making by the executive. Consequently, he contends it to be an unconstitutional usurpation of the

democratic function reserved exclusively under the Constitution to the elected public representatives of the people in Dáil Éireann and

Seanad Éireann. The Court of Appeal has made a declaration to that effect, which the State now appeals.

Texts

2. It is appropriate at this point to detail both the central portions of the Constitution and of the Act of 1977. The long title of the

Act of 1977 reads:

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 the 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.

Section 2 provides:

(1) In this Act “controlled drug” means 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.

(2) 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.

(3) The Government may by order declare that the provisions of this 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

subsection is in force, this Act shall not apply in relation to a substance, product or preparation specified in the order.

(4) The Government may by order amend or revoke an order under this section (including an order made under this

subsection).

Section 38 deals with regulations generally and provides:

(1) The Minister may make regulations for prescribing any matter referred to in this Act as prescribed, provided that in so

far as any such regulations provide for the charging of fees they shall only be made with the consent of the Minister for

Finance.

(2) 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.

(3) 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.

The full text of Article 15.2.1º of the Constitution reads as follows:

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 next sub-article deals with subordinate legislatures and their powers and functions, but as there are no subordinate legislatures in

Ireland and as this does not apply to the making of laws by statutory instrument pursuant to primary legislation, this has no relevance

to the present case.

History of the proceedings

3. Stanislav Bederev was charged with certain offences under ss. 3, simple possession, and 15, possession with intention to sell, of

the drug in question under the Act of 1977 and was brought before Blanchardstown District Court. The charges were subsequently

amended in the District Court, so that the controlled drug in respect of which the charges were laid was changed from mephedrone to

methylethcathinone. This plenary action was commenced on 7th November 2012 and sought a declaration that s. 2(2) of the Act of

1977 is invalid having regard to Article 15 of the Constitution. In the High Court, on 6th March 2014, evidence was heard from two

witnesses. Lauren Martin, the solicitor for Stanislav Bederev, very briefly told the court that her client was charged with unlawful

possession of the drug in question. For the State defendants, the appellants in this appeal, Marita Kinsella, chief pharmacist at the

Department of Health, described the process whereby a drug is added to the proscribed list; how it becomes a criminal offence under

the Act of 1977 to possess it or supply it without authorisation, and the analysis undertaken to determine if a Government decision

should be taken to criminalise it. Gilligan J, in a reserved judgment of 29th May 2014, [2014] IEHC 490, held that there had been no

unconstitutional usurpation of the exclusive legislative authority of the Oireachtas by the government. He applied the traditional test

derived from Cityview Press and Anor v An Chomhairle Oiliúna and Ors [1980] 1 IR to hold that there was sufficient guidance in the

primary legislation, including the schedule of proscribed drugs in the Act of 1977, as to what substances could subsequently be

included within the range of criminal sanctions by executive action. He held that while the Act of 1977 also regulated the use of drugs

by medical professionals and pharmacists, the overall purpose of the legislation was clear. At paragraph 51, the trial judge stated:

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.

4. Gilligan J also held that since s. 38(3) of the Act of 1977 provided for each such addition to the list of controlled drugs to be laid

before the Oireachtas and potentially annulled, that this was a factor demonstrating retention of control. At paragraph 54 he said:

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.

5. By order of Gilligan J on 4th July 2014, perfected on the 16th July 2014, the trial judge ruled that the State recover against the

plaintiff Stanislav Bederev the costs of the action. The High Court’s order was stayed until the 31st of July 2014. Stanislav Bederev

filed a Notice of Appeal on 13th October 2014 and also filed a motion in the Supreme Court seeking an interim or interlocutory

injunction restraining the prosecution. The case was then subject to a direction by the Chief Justice under Article 64.3.1º transferring

it to the Court of Appeal. On 3rd December 2014 the Court of Appeal granted a stay on the prosecution, the application being

unopposed. The appeal was heard in the Court of Appeal on the 28th January 2015 and judgment was reserved. The Court of Appeal

delivered its judgment on the 10th March 2015, allowing the appeal and declaring that section 2(2) of the Misuse of Drugs Act 1977

was repugnant to Article 15.2.1º of the Constitution and therefore invalid. Consequently, the Misuse of Drugs Act 1997 (Controlled

Drugs)(Declaration) Order 2011, the one relevant to the drug in question here, was also invalid. In its order of 10th March 2015,

perfected on the 25th May 2015, the Court of Appeal so ruled and awarded costs against the State on both courts. In the judgment

of the Court of Appeal by Hogan J, with Finlay Geoghegan and Peart JJ concurring, it was held that the schedule to the Act of 1977

could not be considered as part of the Act of 1977 and nor could the background to the legislation in international agreements be

taken into account. Insufficient guidance, it was held, as to the basis upon which any drug might be added by the Government to the

schedule of the Act of 1977 was available so as to save any such delegated legislative power from amounting to a usurpation of the

democratic role of the Oireachtas as the exclusive legislature for the State. A quotation from paragraphs 60 to 68 of that judgment

demonstrates the reasoning of the Court of Appeal from which the State has appealed:

60. In his judgment in the High Court, Gilligan J. stated:

“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.”

61. While this is one of the objectives of the principles and policies test, it is, however, not the only the one and perhaps

not even the most important such objective. As both Denham J. said in Laurentiu v. Minister for Justice [1999] 4 I.R. 26,

61 and the Divisional High Court observed in Collins, the objective of ensuring that, in the democratic society guaranteed

by Article 5, policy decisions having a legislative character are taken by the body directly accountable to the People

(namely, the Dáil and the wider Oireachtas) through the electoral process contemplated by Article 16 is, if anything, even

more important and represents the very cornerstone of the entire separation of powers.

62. But even applying the test articulated by Gilligan J., I greatly doubt if that test could properly be met in the present

case. The relevant test for this purpose was set out by Murphy J. in O’Neill v. Minister for Agriculture and Food [1998] 1

I.R. 539 in the following terms ([1998] 1 I.R. 539, 554):

“In so far as the question of ultra vires is concerned, clearly the requirement is to look at the legislation with a view

to identifying the principles and policies laid down by the Oireachtas for achieving the identified purpose of the

legislation. This exercise should reveal both the scope of the Minister’s power and the limitations placed on it.”

63. Applying that test, therefore, by what standards, for example, could a court, faced with a challenge to the vires of

any order made by the Government under s. 2(2), measure undefined and somewhat abstract concepts referred to in the

long title such as “misuse”, “harmful” and “dangerous” in the absence of any further guidance by way of principles and

policies contained in the operative part of the 1977 Act itself? All of this, perhaps, is to say that it is rather asking too

much of a long title to contain the guidance needed to meet the test set out by Murphy J. in O’Neill, since, to recall again

the words of Murray C.J. in BUPA Ireland, one cannot realistically expect that the long title will contain the type of

specific detail which is invariably only to be found in the substantive provisions of an Act itself.

64. One might also ask whether it would be open to the Government to employ s. 2(2) of the 1977 Act to ban other types

of drugs which are in everyday use and which are potentially both harmful and liable to be misused? Alcohol and tobacco

are the most common cases in point. Alcohol is a major factor in range of serious anti-social activities, including road

traffic fatalities and accidents, domestic violence and other serious crimes such as assault and public order offences.

Alcohol is addictive and the abuse of alcohol in Irish society is regrettably so prevalent that it presents major public

health challenges, of which alcoholism and cirrhosis of the liver are among only the most prominent. Tobacco consumption

is highly addictive and greatly increases the risk of lung cancer, heart disease and a range of other serious illnesses. On

any view, both drugs are harmful and are liable to be misused.

65. It may well be that, as Ms. Kinsella observed in her evidence, it had never been intended or understood by the

Minister for Health and Children (or, for that matter, the Government) that the powers conferred by s. 2(2) of the 1977

Act would be used to control substances of this kind which are in everyday use, but this subjective intention is quite

irrelevant to the proper construction of the section. It may also be that, as Gilligan J. held in his judgment under appeal,

tobacco and alcohol should be regarded as sui generis for this statutory purpose as when he stated:

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.”

66. I would observe, however, that there is nothing as such in either the long title or the 1977 Act which states that only

substances “which are likely to be universally harmful to those who misuse them” can, as such, be the subject of an order

under s. 2(2) of the 1977 Act. Judged by the long title, it is simply sufficient that the substance is harmful (or, for that

matter, dangerous) and is liable to misused. In any event, there can be little doubt but that both alcohol and tobacco are

likely to be universally harmful to those who misuse them.

67. If, therefore, tobacco and alcohol are potentially outside the scope of s. 2(2) and the 1977 Act more generally, this

can only be because of some external source – such as, as Gilligan J. remarked, a corpus of other legislation dealing with

the sale, distribution and consumption of tobacco and alcohol – which would preclude such a course of action. The fact,

however, that there would appear to be nothing within the parameters of the 1977 Act which would prevent the

Government making an order under s. 2(2) in respect of either tobacco or alcohol may be taken as indicative in its own

way of the scope of the sub-section and the extent of the policy choices which the Government are thereby empowered

to make.

68. The special cases of tobacco and alcohol apart, it is nevertheless clear that, given the breadth of s. 2(2) of the 1977

Act, the Government is more or less at large in determining which substances or products should be declared to be

controlled drugs. In the present case, the fundamental choice which remains with the Government for the purposes of s.

2(2) is which dangerous or harmful drugs are liable to misuse such that they should be declared to be controlled drugs.

But there is almost no guidance given on this topic by the substantive provisions of the 1977 Act itself and the key words

of the long title (“misuse”, “certain”, “harmful”, “dangerous”) are in themselves too general to be sufficient for this

purpose.

6. In adopting this reasoning of the Court of Appeal before this Court, counsel for Stanislav Bederev have also asserted another

reason why the subsection of the Act of 1977 was struck down, which is that the power to annul the decision of the Government, as

reserved to the Oireachtas in the legislation, has no effect in constricting what is claimed to be the unlawful delegation of a central

democratic power.

7. The State appellants have argued that this reasoning is incorrect. Central to the State’s argument is that there is a policy clearly

discernible within the legislation; meaning the entirety of the Act of 1977 and including the schedule of proscribed drugs as of the

date of passing which had been outruled by the Court of Appeal. All that is being done here, according to the State, is to add details

to a structure that has already been well-defined by the Oireachtas. This argument draws a distinction between making policy

through secondary legislation, a practice which the State does not seek to stand over, and a secondary body taking policy

considerations into account when making decisions, which it is contended is possible. Central to the State’s argument is that while

the Oireachtas may not abrogate authority to legislate, this being expressly forbidden by the Constitution, a legislative scheme is not

unconstitutional if it sets up through the parent Act an objective to be attained and there is a policy approach discernible as to how

any choices that need to be made are to be effected. Here, the State claims, the underlying policy is to protect the public from

dangerous and harmful drugs and to control their legitimate use by health professionals through appropriate restrictions. It also, it is

contended, seeks to avoid the problems which existed in prior legislation in this area, which involved a process of categorisation

through naming each specific drug that was sought to be made illegal Instead, the State claims, this legislation enables drugs to be

slotted into the schedule as a missing detail as and when such drugs develop; this slotting in being expressly guided by the mischief

which the legislation seeks to avoid and by the nature of what is already in that schedule. In other words, the State urges that this is

merely a power to add details, itself upholding the choices already made by the Oireachtas.

8. The State claims that the principles and policy test for the adjudication of whether there has been an unlawful delegation of

powers by the Oireachtas to a subordinate body, while useful, is merely a means of expressing the fundamental principle that

legislative authority cannot be abrogated but can, nonetheless, be delegated subject to control. While counsel for Stanislav Bederev

claim that the evidence in the High Court as to the need to speedily react to new drugs and place them on the controlled list is

irrelevant to the central issue of abrogation, the State asserts the importance of their own evidence as showing that necessity due

to urgency is part of the reason for having secondary legislation. The State argues that the High Court evidence demonstrates that

no difficulty was experienced in choosing this drug for inclusion in the schedule because the objective within the Act of 1977 was

perfectly clear. It is thus necessary, in the light of the arguments on both sides, to describe the legislation in detail and also to

describe the relevant evidence.

The Act of 1977

9. In its long title, the Act of 1977 declares itself to be legislation “to prevent the misuse of certain dangerous or otherwise harmful

drugs”, to enable the Minister concerned “to make for that purpose certain regulations in relation to such drugs”, to declare certain

substances poisons, to amend pharmaceutical legislation and “to make certain other provisions in relation to the foregoing”. In the

definition section, s. 1(1), only 2 drugs are defined: cannabis resin and opium poppy. Possession, a central component of the criminal

offences under the Act, is not defined, though s. 1(2) makes provision for possession through an agent. Possession is, however, a

general concept in criminal law meaning control by a person, or control over a place in which contraband is, or leaving something for

retrieval and this can be pursued by agents, knowing or unknowing as to the nature of what is involved. The health professionals

given exemptions against the prohibition on possession and supply of controlled drugs within the Act are defined. Thus, many drugs

which are controlled under the Act can be obtained from a pharmacy in various preparations, though it is an offence under s. 18 to

forge a prescription. Some drugs may be regarded as so dangerous that under s. 13 the Minister may restrict such substances either

absolutely or limit their possession, production or supply “for purposes of research or for other special purposes specified” in the order.

A great portion of the legislation is taken up with enabling drugs to be used for advancing human health or alleviating human suffering

by health professionals while at the same time restricting the general population’s access to them. Thus, under ss. 5 and 14 the

Minister is enabled to make regulations relating to the manufacture, importation and exportation of controlled drugs as well as record-

keeping and reporting by pharmacists. Where there is misuse, the Minister is enabled to make a direction prohibiting a health

professional from having access to a drug notwithstanding their general exemption from the prohibition against possession; detailed

provisions in that regard are contained in sections 6 to 12.

10. The main criminal offences are those contained in sections 3 and 15. Simple possession is described in s. 3 in terms of an

imperative that “a person shall not have a controlled drug in his possession.” Upon conviction on indictment this offence may carry up

to 7 years imprisonment under section 27. There are special provisions for cannabis. Section 15 describes the graver offence of

distributing – or pushing as it is put colloquially – drugs in terms of an accused being a “person who has in his possession, whether

lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another”. Under s. 27, this offence can attract

life imprisonment following conviction on indictment, though the sentencing patterns in this area have been analysed by the Judicial

Researchers’ Office in a more precise way: see www.irishsentencing.ie. Inchoate offences are, at least partially, described in sections

20 and 21. The circumstances under which a reversed burden of proof can arise in criminal proceedings are set out in s. 29; see The

People (DPP) v Smyth and Smyth [2011] 1 ILRM 81. Section 30 grants the court powers of forfeiture on conviction. In a throwback to

an earlier time, s. 16 outlaws opium dens. Garda powers are defined in ss. 23 and 24 and the power of the District Court to issue a

warrant is described in section 27. The wider power of arrest arises under s. 25, which grants a garda acting “with reasonable cause”

the power to arrest a person suspected of a relevant offence, and there are also powers of summary search in section 23.

11. Excluding persons convicted of possessing controlled drugs for the purpose of supply, one of the remedies available to the court

where a person has been convicted of possession of drugs before it is, under s. 28, and following relevant reports, to permit that

person to be released on a recognisance on condition that the person be under the supervision “of such body (including a health

board) or person as may be specified in the order and during a period specified in the order”; or to require it as a condition of the

recognisance that “such person undergo medical or other treatment”. Alternatively, an order can be made “that the person be

detained in custody in the designated custodial treatment centre for a period not exceeding the maximum period of imprisonment

which the court may impose in respect of the offence”. Following amendments to various Acts concerned with poisons, health and

pharmaceutical matters, the predecessor of the Act of 1977, the Dangerous Drugs Act, 1934, was repealed. The legislation ends with

a schedule of controlled drugs, which in 1977 numbered some 127 individual substances.

The evidence in the High Court

12. The only evidence before the High Court regarding the manner in which the Act of 1977 operated as to addition of controlled

drugs to the schedule was from Marita Kinsella, chief pharmacist at the Department of Health. There was no contrary evidence, for

instance expert evidence as to how confusion might arise during the process of adding individual drugs to the schedule. According to

her, the schedule was based upon the United Nations Single Convention on Single Narcotic Drugs of 1961, to which Ireland became a

party in 1980 (the instrument coming into force early in 1981), and upon the 1971 Convention on Psychotic Substances, to which

Ireland became a party in 1992. Some of the drugs scheduled in these international instruments were not included in the original

schedule to the Act of 1977, about 10 apparently. What was at issue, however, was the ongoing nature of the work that needs to be

done in order to keep the schedule up to date. This was described by her in the following terms:

… it has been ongoing for a very large number of years based on the number of substances and the new substances that

emerge over time, new types of drugs emerge and so it is very much an ongoing piece of work. Just maybe to explain a

little bit about how the Department carries out that work. The Department of Health engages very closely with An Garda

Síochána, with the Revenue Customs Service, with the HSE Health Services, in terms of the drug treatment services and

other organisations which are involved in, I suppose, the area of the drugs market at national level. What that work

involves is monitoring emerging trends in the drugs markets at national level to identify if new substances are emerging

which are being used among the drug using population but also among the general population. That work is ongoing work

in monitoring and engaging at international level. Because, as you can appreciate, the whole area of the control of drug

substances is very much an international issue, so the Department of Health, as well as the Department of Justice, and all

these organisations, engage very closely with the UN bodies that manage international conventions [governing] the

misuse of drugs substances and also then with other European Union Member States as well that are involved in the

control of drugs. … substances that are emerging [for] drug misuse will very quickly be seen in Ireland as well. So we

would watch very closely what we are seeing in neighbouring countries, but also internationally because very quickly the

way the market has evolved now, very quickly those substances will start to appear, [to be] available on the Irish market

and be used here also.

13. The actual process of preparing a recommendation for the Minister which would ultimately be brought before Government was

described as involving the use of an expert group “to obtain information that there are health concerns associated with” a particular

substance. The analysis is centred around whether “the substances are considered to be dangerous or have the potential to harm

human health”. Fundamental to that, Ms. Kinsella said, was “to describe and understand what actually this substance group of

substances is and then … to see what evidence and information is available about the harm to human health associated”. This also

involves a chemical analysis and, following consultation with the relevant experts, the preparation of a report. Included in that report

is information about “the effects of these substances on the human body and also information available on the health risks associated

with it.”

14. Ms. Kinsella was cross-examined closely by counsel for Stanislav Bederev. She said to her that the government wanted to make

sure that the “substances are drugs of misuse”. What they were concerned with was whether “this is a real live substance that is

being misused in the population or maybe in the drug using community.” She described the Act of 1977 as having its primary aim in

controlling substances and as being “to protect against the dangers of harm caused by these types of substances.” Asked about

whether there was any clarity in the legislation she said:

The Misuse of Drugs Act, I think, gives legal clarity as to exactly what substances are controlled because it lists named

substances or groups of substances. It is quite clear in law what is controlled and what substance is not controlled. …

There are substances from time to time which are notified to us that have the potential to be misused, but these are not

necessarily associated with significant harm or danger such that [these] would warrant control under this particular Act.

15. Asked as to where any core principle or policy is to be found in the Act, she answered:

The core principle and policy is that the substance is dangerous and harmful to human health and the substance is, or

has, the potential to be liable to misuse. … My view would be [that this is found in] the long title to the Act, and also the

types of substances… I suppose the long title talks about certain dangers or other harmful drugs and I think the schedule

to the act gives a very clear indication of what those certain substances are….The purpose of this Act …, it sets out a

range of measures to control, manufacture, import, export … these types of substances. So section 2(2) is not only – is

controlling substances that fit or that are appropriate for control within the broader framework of that Act. A number of

the sections deal with provisions in relation to the use of substances by medical practitioners, by dentists and veterinary

surgeons and pharmacists. So it clearly envisages health as being a core component of what is being considered for

controlling substances. … They are not used for medicinal purposes but they do have health consequences from taking

them. … Some may have had medicinal uses, maybe substances which I suppose leak out of the legitimate trade and

come to be used.

16. In the High Court, Gilligan J had no difficulty in construing the import of this evidence as being clear. That evidence, however, and

his acceptance of it depended to a large degree on the use of the schedule to the Act of 1977 which was regarded by the Court of

Appeal as not being part legislation to which regard could be had. Here, a caution must be entered. While it may be indicative of the

clarity of the relevant purpose of legislation to have evidence from those tasked with administering it and while the boundaries of their

responsibility may seem clear to them, whether the Oireachtas have wrongly delegated power to a subsidiary law-maker is a matter of

statutory interpretation: the task of a court is to analyse what is in the statute. It would be wrong to be lured away from that task

by apparent certainty as to what an enactment means in delegating legislation by evidence as to how it is understood by those who

administer it.

Exclusion of the schedule

17. The point central to the determination of this appeal is whether the Court of Appeal was correct in excluding the schedule from

the material that may be used to determine the nature and extent of the delegation made by the Oireachtas to the Minister. In the

judgment of Hogan J, it is correctly stated that “a schedule is part of an Act and falls to be construed as such”. The cases cited in

that regard in the judgment of the Court of Appeal support that proposition, including McDaid v. Sheehy [1991] 1 IR 1; Rodgers v.

Mangan [1999] IEHC 238 and Leontjava v. Director of Public Prosecutions [2004] IESC 37, [2004] 1 IR 591. Dodd, Statutory

Interpretation in Ireland (Dublin, 1984) puts the matter thus at 3.38:

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.

Where a word or phrase is defined in an enactment, the repetition of same is a reference back to that definition. Section 20(2) of the

Interpretation Act 2005 puts the matter thus: “Where an enactment defines or otherwise interprets a word or expression, other parts

of speech and grammatical forms of the word or expression have a corresponding meaning.” See also the cases cited in the Court of

Appeal judgment; Minister for Justice, Equality and Law Reform v. SMR [2007] IESC 54, [2008] 2 I.R. 242, 260, per Finnegan J, BUPA

Ireland Ltd. v. Minister for Health and Children [2008] IESC 42, [2012] 3 I.R. 442, 477, per Murray CJ. Bennion, Statutory

Interpretation, 6th Ed., (London, 2013) qualifies this principle, however, as a presumption, noting at 521:

Where an Act contains a definition of a term, there is a presumption that when the term is used in an instrument issued

under or for the purposes of the Act its meaning in the instrument is intended to be that given by the definition.

He notes, however, that such a presumption may be displaced by a clear indication to the contrary, quoting in support of this the

dicta of Lord Lowry in Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357 at 365.

18. For the Court of Appeal the “critical point” was that, in defining a controlled drug, the Act of 1977 gave alternatives, which it

expressed as: “either the controlled drug is either one which is contained in the schedule or is one which has been declared to be

such by the Government by the making of an order under s. 2(2).” Citing Montemunio v. Minister for Communications, Marine and

Natural Resources [2013] IESC 40, [2013] 4 IR 120 as authority, the Court of Appeal held that the use of alternatives meant that the

definition was akin to a definition used in fisheries legislation on confiscation after illegal fishing which admitted of choice through the

words: “all or any of the following found on the boat to which the offence relates:(a) fish, (b) any fishing gear.” This decision of

Hardiman J was that the separation by words between the fish and the gear amounted to a distinction and that this created the

alternatives that either the fish or the catch or all of both could be forfeited. That reasoning is unimpeachable. It is not applicable in

this context, however.

19. As of the enactment of the Act of 1977, the Government, in considering a development whereby a new drug had either been

discovered or had commenced being misused within the community, would have to ask the fundamental question as to whether that

drug required control by adding it to the schedule. It is clear that this question could only be answered by reference to the schedule

as it then existed. It is not a question of something being either a controlled drug or of it being within the schedule. The scheme of

the legislation is, save for rare and specific references like the reference to opium in s. 16, to apply all of the restrictions in relation to

drugs which the Act establishes by reference to that schedule. Thus there is no alternative whereby the Government, in considering

whether to add a substance to the schedule, is to merely have regard to the control as contained in the Act. Such an approach

would be futile. Without the schedule there would be nothing to be controlled. The substances prohibited under ss. 3 or 15, or to

prohibit the importation and exportation of pursuant to regulations under s. 5, depends on the schedule being there. In other words, it

is clear that the Act does not work without the schedule. To strip the schedule of drugs away from the legislation is to render the

enactment meaningless for all practical purposes. Such an exercise would be contrary to the will of the Oireachtas as expressed in

the legislation. Thus while an argument can be raised that there is an alternative as between the schedule and what is defined in the

Act, the statutory construction in these individual circumstances rules that out. The plain intention of the Oireachtas was to the

contrary.

20. An argument might also be pursued that an incremental movement away from the original scheme of the Act may be possible

through the scheduling of what might be called outliers in terms of which drugs ought to be controlled. Again, such a contention

cannot succeed. If there is no abdication of control by the Oireachtas, in the sense that what can be added to the schedule are

details made plain by the context in which they occur, then no addition to the schedule can properly alter the statutory scheme.

There is therefore a firm basis for the Government only making an order under s. 2(2) of the 1977 Act by reference to the categories

of drugs already listed in the schedule. That being so, it is impossible to construe the relevant scheme, as did the Court of Appeal, as

one of the subsection being “framed the way it was … to give the Government the maximum freedom to make an order under that

sub-section so that it was not constrained by the parameters of the existing categories of controlled drugs specified in the schedule.”

Abdication, principles and policies

21. No serious attempt was made on this appeal to stand over the proposition that despite there being a series of enactments dealing

with tobacco and with alcohol, and the control, sale, and licensing of same, somehow, the Oireachtas did not know what the business

at hand was when enacting the Act of 1977. Here, the argument supporting the abrogation of legislative responsibility is that tobacco

and alcohol could be added to the schedule by Government fiat. A piece of legislation can be parsed in a number of ways in an

attempt to discern the true intention of the legislature, for that is always the fundamental test: by examining its purpose and effect,

the historical frame of reference in which it operates, the mischief that it was set up to remedy and any prior enactment that required

repeal and replacement. Individual sections and subsections as well as particular words must be seen within the immediate and overall

context of any individual piece of legislation. Similarly, the manner in which an Act fits within the overall rule of law has to be seen in

the context of what other legislation is applicable. The Court of Appeal was of the view that the Government was insufficiently

constricted as to which substances might be added to the schedule to the Act of 1977. The judgment appears to accept that even

tobacco or alcohol might be made a controlled drug. At paragraphs 66-68 it was stated:

66. I would observe, however, that there is nothing as such in either the long title or the 1977 Act which states that only

substances “which are likely to be universally harmful to those who misuse them” can, as such, be the subject of an order

under s. 2(2) of the 1977 Act. Judged by the long title, it is simply sufficient that the substance is harmful (or, for that

matter, dangerous) and is liable to misused. In any event, there can be little doubt but that both alcohol and tobacco are

likely to be universally harmful to those who misuse them.

67. If, therefore, tobacco and alcohol are potentially outside the scope of s. 2(2) and the 1977 Act more generally, this

can only be because of some external source – such as, as Gilligan J. remarked, a corpus of other legislation dealing with

the sale, distribution and consumption of tobacco and alcohol – which would preclude such a course of action. The fact,

however, that there would appear to be nothing within the parameters of the 1977 Act which would prevent the

Government making an order under s. 2(2) in respect of either tobacco or alcohol may be taken as indicative in its own

way of the scope of the sub-section and the extent of the policy choices which the Government are thereby empowered

to make.

68. The special cases of tobacco and alcohol apart, it is nevertheless clear that, given the breadth of s. 2(2) of the 1977

Act, the Government is more or less at large in determining which substances or products should be declared to be

controlled drugs. In the present case, the fundamental choice which remains with the Government for the purposes of s.

2(2) is which dangerous or harmful drugs are liable to misuse such that they should be declared to be controlled drugs.

But there is almost no guidance given on this topic by the substantive provisions of the 1977 Act itself and the key words

of the long title (“misuse”, “certain”, “harmful”, “dangerous”) are in themselves too general to be sufficient for this

purpose. Adopting the words of Blayney J. in McDaid, this is “far from a case of the Government filling in only the details”

insofar as the making of a controlled drugs order under s. 2(2) of the 1977 Act is concerned. Nor can the present case be

compared with cases such Pigs Marketing Board or City View Press where prices or fees were set by reference to fixed

objectives and standards contained in the parent legislation.

22. The Act of 1977 has nothing to do with tobacco or alcohol. In terms of the broader context in which the legislation operates,

there are multiple Acts dealing with the control of alcohol, which is a component of such as wine and beer. These drinks, in addition

to having intoxicating effects, and being associated with crimes of violence, as the judgment of the Court of Appeal rightly points out,

as also foodstuffs and an enhancement of human life. There is nothing to suggest that the Oireachtas intended to disturb a corpus of

law in relation to what is already highly regulated in multiple enactments. Within the context of the ongoing debate as to the control

of tobacco, there is also a corpus of significant legislation.

23. There is a presumption against an accidental alteration of the law. The following passage from Maxwell on the Interpretation of

Statutes (11th edition, London, 1962) at 78 puts the matter as a presumption against any radical implicit alteration of law:

One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond

what it explicitly declares either in express terms or by clear implication, or, in other words, beyond the immediate scope

and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree

improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system

of law, without expressing its intentions with irresistible clearness, and to give any such effect to general words, simply

because they have a meaning that would lead thereto when used in either their widest, their usual or other natural sense,

would be to give them a meaning other than that which was actually intended.

The general system of law, described by Maxwell, consists of the corpus of legislation and requires the Act of 1977 to be considered

in its proper context: as a legislative measure targeted at particular ends and within an existing corpus of law. The reasoning of the

Court of Appeal suggests that this legislation has the capacity to allow for the widest possible amendments to the law in a manner

contrary to the democratic purpose which underlies Article 15.2.1º and which requires radical alterations to the law to be passed by

the Oireachtas. It is to be stressed that radical and far-reaching changes to the law cannot occur through ambiguous language;

O’Connell v Governor and Company of the Bank of Ireland [1998] 2 IR 596. In the consideration of a particular section or subsection

of an enactment, context is information; context both within the enactment and within where the enactment fits in the legislative

body. In analysing the mischief which legislation is designed to address, how an enactment is bookended by other statutes informs its

scope; see Bennion, Statutory Interpretation, 6th Ed.., (London, 2013) where it is suggested at 540 that:

The interpreter should treat the express words of an enactment as illumined by consideration of its context or setting.

The words are not deployed in a vacuum… Courts accordingly may have regard to the legislative history, the statutory

context furnished by legislation in pari materia [on the same subject], and the common law context.

24. Parliament properly delegates only those powers which arise by necessary implication of a statute as a whole. A subsidiary

enactment can be attacked for exceeding the scope of what is precisely delegated. Rules which are arbitrary, unjust or partial can be

characterised as ones which Parliament never intended to give authority to; see Cassidy v Minister for Industry and Commerce

[1978] IR 297 and for a more recent analysis Island Ferries Teroranta v Minister for Communications [2015] IESC 95. What is not

within the terms of the delegation of legislative power cannot authorise secondary legislation. What the Oireachtas intends to

delegate should be clear from the text of legislation. Those affected by secondary legislation have an entitlement to challenge

whether it was made within jurisdiction. There are two principles: legislation must set boundaries and a defined subject matter for

subsidiary law-making and those affected by secondary legislation have an entitlement to know from the text of legislation where

those boundaries are and what that subject matter is. Otherwise, challenges by way of judicial review to the vires of subsidiary

legislation become impossible. This is about what is in the contemplation of the enactment in enabling secondary law-making. Here,

the issue is not whether the Oireachtas could have intended the delegation to the Government of updating the drugs to be controlled

by the Act of 1977, because that was plainly the intention. Nor is the issue whether the particular drug chosen was within the scope

of that delegation because, due to the danger that it poses, it is admitted by all parties to have been rationally included. Instead, the

scope of permissible delegation is claimed to go beyond the control of the democratic system of law making set up by the Constitution

and, furthermore, leaves the Government with an undefined and wide-ranging power as to what drugs it decides to criminalise the

unauthorised use of. Under the Constitution, the delegation of powers to a body to make any subsidiary instrument is only permissible

where the objective to be achieved is discernible from the text of the primary legislation and the extent of the power to be exercised

is delimited. An overly-wide objective might in itself be an abrogation of power by the Oireachtas, while a constricted purpose which

is not sufficiently limited as to its scope and effect may similarly trespass beyond the boundaries permitted by the Constitution. This

is a matter of analysis as to degree. Further, there is a fundamental difference between the Oireachtas launching the possibility of

subsidiary legislative enactment as a boat which is never to return to the harbour of oversight at Leinster House and one which, as

under s. 38(3) in the present case, requires a subsidiary order to be subject to parliamentary scrutiny. That difference may not

necessarily be decisive in upholding a subsidiary enactment if the purpose and scope under which it was made constitutes an

abrogation of responsibility, but it is a factor in the analysis of whether democratic control has been retained. Again, this is a question

of degree. No such analysis is easy. Would that it were so simple. Indeed, the complexity of the decided cases means that even an

analysis such as that of Feeney J in John Grace Fried Chicken Ltd. & Ors v Catering Joint Labour Committee & Ors [2011] 3 I.R. 211

may be no more than a guide, albeit a very useful one.

25. While the State has argued urgency as a central factor justifying the delegation of legislative power, that cannot enable the

abrogation of the power of the Oireachtas. The fact that a particular mischief, be it a financial crisis, the collapse of an insurance

company or something similar, requires an urgent response does not justify any departure from the strict requirement that legislation

is for the Oireachtas. As Denham J stated in Laurentiu v Minister for Justice [1994] 4 IR 26 at 61, to “abdicate would be to impugn

the constitutional scheme.” Indeed, in the two examples given, recent history has shown the adeptness with which the legislative

authority of the State can respond to an urgent situation. Rather, the issue is that while legislation can be exact in respect of the

regulation of certain problems, in other respects it must act as a broad instrument for the description of actions that should be taken

by the executive through subsidiary instruments. Once that description is sufficiently clear, there is no abrogation of legislative

authority. Indeed, many of the cases emphasise that without delegation the very exercise of legislative authority by the Oireachtas

could be undermined. Were the Oireachtas required to legislate for every aspect of a particular statutory scheme, it would quickly

become enmired in details and in the task of precisely predicting future developments as opposed to legislating for existing trends

which may change as to detail. Instead of continual re-legislating, primary legislation can set boundaries as to what can be provided

for in subsidiary legislation. This allows subsidiary legislation to flexibly address future developments, so long as those developments

are kin to the mischief outlawed in the parent act. In this way, no derogation from the constitutional imperative to exercise the

democratic function is involved. In Cityview Press v An Comhairle Oiliúna [1980] IR 381 O’Higgins CJ at 398 refers to the “obvious

attractions” of subsidiary legislation “in view of the complex, intricate and ever-changing situations which confront both the

Legislature and the Executive in a modern State.” As Fennelly J emphasised in Maher v Minister for Agriculture [2001] 2 IR 139, this

process is integral to the fabric of legislation. At 245 he stated:

An enormous body of subordinate laws is, nonetheless, constantly passed by means of statutory instruments, regulations

and orders. This type of delegated legislation is, by common accord, indispensable for the functioning of the modern

state. The necessary regulation of many branches of social and economic activity involves the framing of rules at a level

of detail that would inappropriately burden the capacity of the legislature. The evaluation of complex technical problems is

better left to the implementing rules. They are not, in their nature such as to involve the concerns and take up the time

of the legislature. Furthermore, there is frequently a need for a measure of flexibility and capacity for rapid adjustment to

meet changing circumstances.

26. In Cityview Press Ltd ,O’Higgins CJ at 399 emphasises the role of the courts in ensuring that the exclusive authority of the

national legislature “is not eroded by a delegation of power which is neither contemplated not permitted by the Constitution.” That

judgement speaks in terms of the condemnation of any “unauthorised delegation of parliamentary power” and states a test whereby

the limits are exceeded where subordinate legislation “is more than a mere giving effect to principles and policies which are contained

in the statute itself.” In the same oft-quoted passage, what is permitted is said to be that “the law is laid down in the statute and

details only are filled in or completed by the designated Minister or subordinate body”. As Hanna J said in Pigs Marketing Board v

Donnelly (Dublin) Ltd [1939] IR 413 at 421, subordinate legislation is to be made “within the principles laid down by the Legislature,

the powers so delegated and the manner in which the statutory provisions shall be carried out.”

27. In none of these cases, and the many more cited in argument on this issue, is the mere fact that subsidiary legislation allows for a

discretion as to how to target a particular mischief regarded as stepping outside the boundaries of what is constitutionally

permissible; provided it is a mischief which has itself been sufficiently described in the parent legislation. Every delegation of

legislative authority involves, of necessity, a power to do something or to refrain from doing something. The issue is as to whether a

particular course is pursued as a matter to be decided by the person or body giving effect to what is in the statute by reference to

its objective and to the boundaries which it sets as to what is permissible. Fennelly J in Maher points out the need to search for

principles and policies and, should these be absent, there is no warrant for the proper constitutional delegation of authority. In

referencing principles and policies, the description is given of a means whereby legislation should be construed as a whole with a view

towards discerning the mischief which is addressed, the particular power which is delegated and the boundaries within which it may

be exercised. Fennelly J described the proper approach at 247: “It is intrinsic to the test … that the named executor of the delegated

authority has power and discretion to make decisions within the four walls of the governing statute.” Thus, in analysing the

entitlement of a vocational training authority to raise a levy on employers, McMahon J in the High Court at 392 of Cityview Press

decided that delegation under the Industrial Training Act 1967 was lawful:

Because the policy content of the delegated power is limited to the implementation of policy clearly defined in the Act of

1967 and is exercisable only within the constraints imposed by the objects and general context of the Act, so that the

courts can ascertain whether any particular exercise is ultra vires the Act…

28. Two cases on s.5 of the Aliens Act 1935, illustrate that the nature of what is left to subordinate legislation may be so wide that,

even if there is a policy discernible in the parent enactment, a failure to set boundaries will amount to an abrogation of democratic

power. Laurentiu v Minister for Justice [1999] 4 IR 26 concerned power given to the Minister “if and whenever he thinks proper” to

make an order “for the exclusion of the deportation and exclusion of” the non-nationals from the State. As Denham J stated at p. 63,

someone would search “in vain to find principles and policies regarding deportation of aliens in the Act.” This was therefore, as she

said, a case where the “legislature grasped the power over aliens from the executive and then delegated [that power] inadequately

to the Minister.” According to Keane J, at 92, an “absolute and uncontrolled discretion” had been granted to the Minister that only he

could “spell out himself in the form of regulations the restrictions or qualifications which should be imposed on the exercise of power.”

As Keane J stated:

Undoubtedly, the designation of categories of aliens as being either immune from, or subject to, deportation at the

discretion of the State and the delineation in legislative form of modifications on the exercise by the State of its powers in

the area of deportation were policy considerations; but they were decisions which could henceforth be taken by the

Minister. The Oireachtas had, in effect, determined that policy in this area should be the responsibility of the Minister,

subject only to the restrictions to which I have already referred and, of course, to the power of annulment vested in

either House.

In Leontjava v Director of Public Prosecutions [2004] 1 IR 591 the claim was made that another subsection of that same section of

the Act of 1935 was repugnant to the Constitution in relation to the requirement of non-citizens to comply with regulations made by

the Minister “as to registration, change of abode, travelling, employment, occupation, and other like matters.” Referencing Laurentiu,

Keane CJ at 623-624 stated:

In my judgement in that case, I emphasised that the provision under attack could not be construed as a formulation of

the policy of the State in relation to the exclusion and deportation of aliens, leaving the detailed aspects of the policy to

be filled in by subordinate legislation. Since the right to exclude and deport aliens derived from the character of Saorstát

Éireann as a sovereign state, it was not vested in the State by virtue of the Act of 1935. It followed that the only policy

being implemented by the Act of 1935 and the delegated legislation purportedly made thereunder was the regulation of

the exercise of that sovereign power by the executive. Conferring the exclusive right so to regulate its exercise on the

Minister was not the choice of a particular policy by the legislature: it was the assignment to the executive by the

legislature of exclusive responsibility for determining policy in that specific area, including decisions as far reaching as the

exclusion from the State of all persons of a particular nationality.

In contrast, requiring non-citizens to be regulated through registration in the manner provided for in the subsection was a viable

legislative scheme. Keane CJ stated at 624, that this was a legislative model where “[t]he policy enunciated is plain”.

29. It might be remarked, in conclusion, that finding a clear statement of the policy behind an enactment and determining the

boundaries within which any delegated filling in of details is permissible is far from an easy task. Counsel for the Stanislav Bederev has

submitted that it was “entirely open to the Oireachtas to prohibit any substance which has a psychotropic or psychoactive effect.”

What is referred to there is the Criminal Justice (Psychoactive Substances) Act, 2010 where the policy was enunciated in general

words. Adding a form of general words does not necessarily add to what can be discerned as to intention and boundaries from a piece

of legislation as a whole. Nor does the fact that something may have been done better in other legislation mean that it has not been

done at all in the enactment under scrutiny. The construction of a statute is not aided by asking whether something may have been

done better or more elegantly elsewhere. It is the discernment of what power has been delegated, the extent of same and the

boundaries thereof that is central as to whether legislative power has been properly delegated instead of being wrongly abrogated.

The long title to the Act of 1977 is relevant. Dodd – Statutory Interpretation in Ireland (Dublin, 2008) puts the matter thus at

paragraph 3.04:

Where the context or purpose of an Act becomes relevant for interpretation, then the long title may be used to aid

identification of such matters. Matters expressed in the long title should also be manifest in the Act. Considering a

provision in the light of ‘the Act’ as a whole often involves some consideration of the long title. Where the legislature has

used broad words intending them to be used in a narrowed context or for a particular purpose and those matters are

expressed in the long title and the Act as a whole, then the long title may be used to limit the interpretation of the

provision. Though rarely decisive, the long title may bolster a particular view arrived at by other means.

In Minister for Industry and Commerce v Hales [1967] IR 50 at 75, described a long title as providing “a legislative statement of the

purpose and scope of the Act”, which gave “the key-note for the interpretation of the powers given to the Minister” by the

subsection in question. The schedule is crucial to how the Act of 1977 operates. That the Oireachtas required in the legislation that

each of the statutory instruments made under the Act should return for scrutiny indicates a plain intention to control the delegated

legislative power. Boundaries are set in the legislation and limited power to be exercised only a particular way is delegated.

This Act

30. The Act of 1977 is concerned with the risks to human well-being of allowing dangerous drugs to be available other than within a

medical context. In the long title’s reference to “certain dangerous or otherwise harmful drugs”, the schedule to the Act describes the

boundaries of what can and cannot be added by way of updating the legislation. A series of unrelated examples within a statute may

give no information, or may leave even an expert guessing as to what connection, if any, exists between them. A schedule of

egregiously dangerous drugs in the context of the prior Dangerous Drugs Act 1935, which named particular drugs but which was

overtaken by the later invention of such substances as LSD, is a clear indication that what is to be filled in by way of updating must

be dangerous drugs of potential abuse which harm human health and which are at a level commensurate with the examples given.

This, of itself, provides sufficient information. The schedule contains prohibitions as to amphetamine, to various forms of cannabis, to

cocaine, to heroin, to LSD, to mescaline, to morphine, to concentrate of poppy straw, to psilocin and to the opiate alkaloid thebaine.

Some of these may form part of preparations which are useful to human health, for instance when used for the relief of pain, but

which outside of a therapeutic setting are dangerous or harmful. Only such drugs can be added to the schedule by the Government.

That work is then to be checked by the Oireachtas. It might be added that criminal offences generally will involve a specific sentence

while some may include a period of supervision or probation. Specifically targeted in s. 28 of the Act of 1977 is the unfortunate person

who develops a dependency or addiction and who may need treatment. The specific reference in s.16 to opium points to a problem in

the past where people have been imprisoned while still experiencing dependency because of their resort to an addictive drug without

calculating the consequences. What are targeted as to future developments is sufficiently predicted, delimited and described in the

Act of 1977 as a whole.

31. It is therefore not surprising that the chief pharmacist of the Department of Health had no difficulty in determining what sort of

updating is permissible to the scheme for controlling the particular drugs thought sufficiently dangerous to be proscribed in 1977 by

referencing the schedule and the purposes of the legislation. It could not be said that a person seeking to challenge the jurisdiction

exercised by the Government, in adding a particular new drug to the schedule, would have insufficient information as to the

correctness of any such designation since both the statutory boundaries and the policy is clear.

Result

32. The Misuse of Drugs Act 1977 delegates to the Government the power to add to the drugs specified in the schedule to that

legislation. The scheme of the Act is that the drugs set out in the schedule become the drugs which are controlled. Misuse of drugs

may change over a short time from those which are known and proscribed to those which are unknown and which may cause serious

harm if not controlled. Hence, updating of the legislation is done by statutory instrument. All such additions are laid before the

Oireachtas and may be annulled. Control is thus retained by the legislature. Anyone affected by the addition of a particular drug to

the schedule is entitled to question by judicial review whether that addition was within the scope of what was intended by the

legislature. That right to challenge the augmentation of the scope of what is a criminal prohibition, unless excepted for medical and

pharmaceutical use, requires that any addition to the list of drugs should be that contemplated in principle by the legislature and must

be within the limits as to the power delegated. There can be no abrogation of the democratic responsibility of the Oireachtas to

legislate by delegating undefined and unlimited powers of law-making either to Government or to any other body.

33. In the Act of 1977, it is clear that the entire enactment, as to the preamble, the individual sections and the schedule setting out

the drugs then controlled, should be read as a whole in order to determine the principles upon which any new drug might be added by

the Government to the list passed as part of the legislation in 1977. The entire text should also be searched to find the boundaries to

the power to add new substances. Central to the guidance given to the Government by the Act of 1977 is the schedule of drugs

appended to the legislation. Both the drugs individually set out in particular sections within the legislation and the schedule, which is

part therof, describe and delimit the kind of drugs needing control. Only such drugs, those dangerous to human health and subject to

abuse actually or potentially, may be added. Any such addition is subject to scrutiny by the Oireachtas through the mechanism in the

Act enabling the legislature to annul any such delegated legislative authority.

34. In the result, the judgement and order of the Court of Appeal should be set aside and the order of the High Court, refusing a

declaration of unconstitutionality in respect of section 2(2) of the Act of 1977, restored.