The Supreme Court has set aside a Court of Appeal ruling that the Government’s power to add drugs to the controlled-drugs schedule was unconstitutional, restoring the High Court’s refusal to make that declaration.
The case concerned Stanislav Bederev, who faced charges of possessing methylethcathinone and possessing it with intent to supply. The drug was added to the schedule by a 2011 Government order. The charges had originally concerned mephedrone before being amended in the District Court. The Supreme Court judgment addresses the constitutionality of the statutory power; it does not state that the criminal charges were decided in this appeal.
The High Court had held that the 1977 Act set out sufficient principles and policies to guide the Government when adding drugs, and that the Oireachtas retained oversight because an order could be annulled. The Court of Appeal reversed that decision, declaring section 2(2) repugnant to the Constitution and the 2011 order invalid. The State appealed.
In a judgment delivered by Mr Justice Charleton on 22 June 2016, the Supreme Court held that the Act must be read as a whole, including its schedule of controlled drugs. That schedule, the judgment said, helps define the kinds of drugs that may be added: dangerous substances that harm human health and are or may be subject to abuse. The Act also requires orders to be laid before the Oireachtas, which may annul them, and a person affected by an addition may challenge whether it falls within the authority delegated by the Act.
The court said urgency in responding to emerging drugs did not permit the Oireachtas to transfer undefined and unlimited law-making power to the Government. It concluded, however, that the Act supplied boundaries for the delegated power and retained legislative oversight. The Supreme Court restored the High Court order refusing a declaration of unconstitutionality and set aside the Court of Appeal’s judgment and order.