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Cite as: [2014] IEHC 490
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Judgment Title: Bederev -v- Ireland & Ors Neutral Citation: [2014] IEHC 490 High Court Record Number: 2012 11018 P Date of Delivery: 29/05/2014 Court: High Court Composition of Court: Judgment by: Gilligan J. Status of Judgment: Approved |
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:
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 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
17. Counsel for the plaintiff also relies on the decision of the Supreme Court in Laurentiu v. Minister for Justice [1999] 4 IR 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:
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 IR 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:-
(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…” 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:
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 IR 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:
(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.”
“….(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.” 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:
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 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:
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:
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 IR 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 IR 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 IR 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:
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 IR 26 and Leontjava v D.P.P. [2004] 1 IR 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 IR 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:
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:
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
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:
(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” 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:
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:
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 IR 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.
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