Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I am presenting the Misuse of Drugs (Amendment) Bill 2015 to the House as an emergency measure on foot of a judgment yesterday by the Court of Appeal on the Misuse of Drugs Act 1977. I am grateful for the support received from my colleagues in the Dáil yesterday in bringing the legislation to this stage. I also express my appreciation to this House for agreeing to deal with the Bill at such short notice.

The ruling by the Court of Appeal yesterday means the numerous substances which have been controlled by Government order in the years since the Act came into force cease to be controlled under the Act. The court ruled on an appeal against a High Court judgment of May last year. The High Court had upheld the constitutionality of section 2(2), the provision in the Act empowering the Government to declare substances to be controlled under the Act. The Court of Appeal concluded that this provision was deficient in principles and policies and, accordingly, was repugnant to Article 15.2.1° of the Constitution which vested the sole and exclusive power of making laws in the Oireachtas. Accordingly, any order made under this power is invalid.

While the State had no way of knowing how the Court of Appeal would find, we planned for this possibility by preparing the Bill and ensuring it could be brought before the Houses without delay. The Bill aims to deal with the fall-out of yesterday's judgment by reinstating the status quo anteto the substances controlled by Government order. I hope it will meet with the swift approval of the Seanad today. I intend to seek to have an earlier signature motion passed.

By way of explanation, the Misuse of Drugs Act has two primary purposes. It establishes a system of control over certain drugs to protect the public from dangerous or potentially dangerous and harmful substances and facilitates the safe use of certain controlled drug substances which, although harmful if misused, have medical and therapeutic value. Under the legislation, unless expressly allowed to do so, it is illegal to possess, supply, manufacture, import or export a controlled substance.

What is a controlled substance under the Act? These are substances which are either known to be or have the potential to be dangerous or harmful to human health, including their liability for misuse or causing social harm. In general, they are substances which affect the central nervous system, producing some mind-altering effect. This may be stimulation, depression, hallucinations or another significant change. Additionally, many of these drugs have the potential to cause addiction or dependence, whether physical or psychological.

A substance may be declared controlled under the Act in one of two ways. The first is if it is listed in the original Schedule to the 1977 Act. The second is if it has been declared controlled by the Government by means of an order made under section 2(2) of the Act.Subsequent to a substance being declared controlled, the Minister for Health then makes regulations to place controls on the import, export, production, supply and possession appropriate to that substance. The Schedule to the Act lists more than 100 substances which are controlled, including cocaine, heroin, cannabis, LSD, certain amphetamines and other well and less well known substances. These are not affected by yesterday's judgment. However, the legislators in 1977 recognised that it was important to future-proof the legislation by providing a mechanism by which additional substances could be declared controlled without undue delay. This was far-seeing because as we all know numerous dangerous substances which might not have been known about, or might not have even existed, in 1977 have emerged on the drugs market in the intervening period. Accordingly, the Act provided under section 2(2) that additional substances could be controlled by means of Government order. Since 1977, this power has been used nine times by several Governments to control a wide range of dangerous substances, including ecstasy, and most recently head shop drugs. Until yesterday, seven of those nine orders were in place.

Yesterday, section 2(2) under which Government orders are made was declared unconstitutional by the Court of Appeal. This judgment will be carefully examined by my Department and the Attorney General with a view to considering its implications, what future amendments to the legislation may be required and whether an appeal to the Supreme Court is warranted. What is clear is that, as a result of this judgment, all Government orders made under this Act ceased to be valid as of yesterday. This means that all substances which had been declared controlled by Government order, many of which pose significant health risks for people who use them, are now no longer controlled. Accordingly, the purpose of this short but important Bill is to resubmit these substances to control under the Act. The Bill does so by inserting these substances by name into the Schedule to the Act. In order to reaffirm the controls which apply to these substances, the Bill also confirms a number of ministerial orders and regulations made under the Act, thereby giving these instruments statutory effect as though they were an Act of the Oireachtas.

Controlling substances under the Misuse of Drugs Act is an ongoing process which involves national and international co-operation and engagement. The drugs phenomenon is an international issue that needs to be tackled in a co-ordinated way and addressed in a global context. Two United Nations conventions provide the international legal framework for addressing the illicit drugs phenomenon. The fundamental objective of the conventions is to protect the health of people from the inappropriate use of controlled drugs and to ensure that the use of controlled drugs is restricted to medical and scientific purposes. Substances are scheduled under the Act in accordance with Ireland's obligations under these international conventions. Of course, it is open to parties to the UN conventions to extend the scope of control to a wider range of substances, which Ireland has done. Furthermore, substances are also scheduled under the Act in accordance with EU Council decisions or where there is evidence that substances are causing significant harm to public health in Ireland.

The process by which substances are subjected to control by the Government under the Misuse of Drugs Act 1977 is highly technical and complex in order to ascertain whether the abuse potential is such as to warrant control. This work includes monitoring of trends of drug abuse in the national and international drugs markets and the identification of substances and classes of substances that are being used in the drug culture. It involves information exchange between Departments and State agencies regarding trends in usage, seizures and health effects. The development of highly technical legislative provisions which precisely describe individual chemical substances or groups of substances is an important part of the work of accurately controlling substances. Government orders have declared controlled a wide range of substances by means of generic definitions, thereby aiming to stay ahead of the clandestine laboratories which deliberately circumvent national controls. Since 1977, nine Government orders have been made, of which seven continued in operation until today. The most recent order was made in December 2014 when a number of substances were controlled arising from EU Council decisions. Substances controlled by Government order range from substances which are useful medicines but which have abuse potential, such as benzodiazepines, to plants which have psychoactive properties such as magic mushrooms, to synthetic substances sold as "bath salts", "incense" or "research chemicals". In fact magic mushrooms are a fungus not a plant as far as I know.

Members of the House will recall the head shop phenomenon of a few years ago. Some people mistakenly believed that because products sold in these shops were "legal" that they were "safe". Government orders in 2010 and 2011 controlled the substances then commonly being sold in head shops, including synthetic cannabinoids, BZP derivatives and mephedrone. These controls, coupled with the Criminal Justice (Psychoactive Substances) Act 2010, helped to address this problem. Prior to the introduction of the 2010 Act there were more than 100 head shops operating in the State. Since the introduction of the Act, the head shop trade in Ireland has almost disappeared.

The speed at which new psychoactive drugs emerge is evidenced by data from the European Monitoring Centre for Drugs and Drug Addiction which received reports of 15 new psychoactive substances in 2005 and 73 in 2012. The availability of detailed information regarding the chemistry of substances on the Internet, coupled with the availability of sophisticated technology and chemistry expertise, have contributed to the rapid evolution of the illicit drugs market, particularly in the last ten years. It is important that we work together to counter the threat they pose to users, particularly young people. A key part of that work is the control of substances under this Act. The mechanism under which new substances can be controlled in the future will require consideration on foot of today's Court of Appeal decision. This is not part of the proposed Bill as the matter will need to be considered further in light of the terms of the judgment.

I turn to an overview of the Bill. The Bill provides that substances which were controlled before the court judgment by means of Government order may be added to the Schedule to the 1977 Act, thereby providing that they will once more be controlled. Section 1 amends the Schedule to the Misuse of Drugs Act 1977. This provision inserts into the Schedule of the Misuse of Drugs Act 1977 the Schedule to this Bill. These are the same substances previously controlled under Government orders made under section 2(2) of the Misuse of Drugs Act 1977. The substances to be inserted into the Schedule are listed in paragraphs 1A and 1B to be able to specify which additional compounds, namely stereoisomers, esters and ethers, salts, products and preparations of substances are also controlled. Section 2 confirms certain statutory instruments. Certain ministerial orders and regulations made under the 1977 Act are confirmed as if they were an Act of the Oireachtas, thereby ensuring that they are not subject to challenge while the consequences of the Court of Appeal judgment are examined and addressed. Section 3 is the Short Title, commencement and collective citation. This is a standard citation provision. It is intended the legislation will commence on the day after its passing; that is, the day after it is signed by the President.

In conclusion, the Misuse of Drugs Act 1977 provides for the control of dangerous substances and their regulation to ensure that they are only available for medicinal and other purposes in such a way as to prevent their misuse. The Bill aims to protect the legal framework of this country in relation to controlled drugs by re-controlling substances which have been assessed as meriting such control. The House will appreciate that this is a very important Bill which has public health and community safety at its heart. I thank the House for its co-operation in allowing me to bring forward the Bill as a matter of urgency today and I look forward to hearing the contributions of Members during the debate. I hope the House will support the passage of the Bill without delay.