Thomas Pringle (Donegal South West, Independent) | Oireachtas source

I wish to indicate that I support the Bill, which arises from a court case and judgment in the Court of Appeal earlier today. The matter is linked to head shops which sold so-called legal highs. I campaigned against head shops in Donegal and marched against them in Donegal town in 2010. At that time communities across the country were delighted when the Government moved and prescribed the substances sold through head shops as legal highs through a statutory instrument in 2010. It made such substances illegal and effectively ended the head shop trade, which was a very progressive move and the right one to make at the time for the State. It had the support of many communities across the counties.

The judgment today throws all of that into doubt and, as has been said by the Minister, possession of the prescribed substances is now legal until the legislation can be passed. It arises from section 2 of the Misuse of Drugs Act 1977. The judgment today stated it was repugnant to Article 15.2.1° of the Constitution and is therefore invalid. The article states: "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 judgment noted that section 2 left out important policy judgments and left it to be interpreted by the Government and not the Oireachtas.

The judgment noted that no principles or policies regarding the nature of the substances, product or preparations can be declared by order to be controlled drugs as contained in the section. That is probably the key point in the judgment. It affirms that bodies such as the Department are not law makers: they put into execution the laws as made by the governing authority. The important aspect is that the policy and principle are neglected in the primary legislation which gives the direction to the Department in making declarations on these substances. The Bill provides for the legalisation of the banning of substances which were banned until today. Everybody welcomes the fact that order will be given back to the system.

The Minister said he will introduce primary legislation which will provide those principles and polices in legislation which will allow for the statutory instrument to be implemented in future. It brings the Government's reliance on and the lack of scrutiny of secondary legislation into question, and how so many of our laws are applied in that way. A lot of things can be done through statutory instruments which may not have been scrutinised or intended by the Oireachtas.

During the evidence in the case, the chief pharmacist of the Department said it would be cumbersome to assume that any new drug product deemed dangerous was only banned by legislation subsequently enacted by the Oireachtas. That is the constitutional position, in light of the fact that we do not have the policies and principles laid out in primary legislation.

It is not enough for the Department to argue this is cumbersome and we must have a position where we can, by resolution of the Houses of the Oireachtas, add substances to the list. I have put forward an amendment to be taken shortly on Committee Stage in that regard. I am concerned about what will happen from tonight, as it will take some time to draft primary legislation. The Minister indicated it is technical and detailed so it will take time for it to be brought before the Houses and passed. One could wonder if that will happen before the election or in the lifetime of the Government. We must have some sort of system for now and the passage of the primary legislation because, as Deputy Maureen O'Sullivan pointed out, substances are constantly coming on the market. That would allow us to continue to proscribe substances. That is why I have put forward an amendment to allow the Oireachtas to add substances to the list. It is a vital aspect.

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