Justice John MacMenamin has said that a court assessing whether legislation sets out sufficient principles and policies may consider the statute’s Schedule as well as its main provisions.
In a judgment dated 22 June 2016, MacMenamin said he agreed with the judgment and order proposed by his colleague, Justice Charleton. He added observations in the Supreme Court appeal brought by Ireland, the Attorney General and the Director of Public Prosecutions against Stanislav Bederev, who was the plaintiff and respondent.
MacMenamin said the principles and policies analysis should examine what is in the statute, rather than evidence about how the relevant authorities administer it. He said the 1977 Misuse of Drugs Act had to be read as a whole, including its Schedule.
The Act defines a controlled drug as a substance specified in the Schedule or declared controlled by a government order. Section 2(2) provides that a substance named in such an order is treated as if it were specified in the Schedule. MacMenamin said that provision links the Schedule to the body of the Act, making the Schedule relevant to the analysis.
He also addressed the Court of Appeal’s reasoning about the word “or” in the Act and a prior Supreme Court decision, Montemuino v. The Minister for Communications, Marine & Natural Resources. MacMenamin said the word can be used disjunctively or conjunctively, depending on context. He considered its use in the 1977 Act conjunctive, unlike its use in the fisheries legislation discussed in Montemuino. He said the Court of Appeal’s approach had excluded the Schedule from consideration and led it to conclude there was no basis to limit the Government’s order-making power by reference to the drug categories listed there.
MacMenamin recognised the concern underlying the judgment under appeal: protecting Article 15.2.1 of the Constitution, which vests the exclusive power to make laws for the State in the Oireachtas, subject to Article 15.2.2. He highlighted the importance of that constitutional provision where criminalisation of conduct is at issue.
The source is MacMenamin’s separate observations. It does not set out Charleton’s proposed order or the Supreme Court’s final disposition of the appeal; it therefore does not establish the precise order made by the Court.