Colm Burke (Fine Gael) | Oireachtas source

I welcome the Minister to the House. I thank him, the departmental officials and all those involved in the background in the Office of the Attorney General for bringing forward this legislation so rapidly. When this matter was brought before the High Court, it was argued that section 2(2) of the 1977 Act was unconstitutional. The public perception at present is that the Government is solely in charge of legislation and the role of the Oireachtas is too often forgotten. Interestingly, however, if one considers the judgments of both the High Court and the Supreme Court, the provision in the Constitution at Article 15.2 1° sets out clearly 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." That was the argument used in the court in respect of the section of the 1977 Act and whether the regulation that subsequently came in was in breach of, or not in compliance with, the aforementioned article in the Constitution. I welcome the decision of the Court of Appeal. While I acknowledge the Minister may not like to hear me say that, it is important that the checks and balances are in place. That is the purpose of the structure encompassing the Oireachtas, the Government and the courts and it is only right that Members stay within the Constitution when bringing forward legislation and regulation. I have made this point previously but I recall being involved in 2004 in identifying where a regulation was brought forward in respect of nursing home charges only to find in that case that there was not even appropriate legislation to give power to the Minister to bring forward a regulation. Consequently, for more than 20 years moneys were being deducted from people in nursing homes, which was completely illegal. Therefore, it is important that the checks and balances are in place.

In the case put forward by the State, although Mr. Justice Paul Gilligan held in favour of the State in the High Court, the Court of Appeal held otherwise. Consequently, this legislation is now necessary and while I welcome the decision of the Court of Appeal, I do not welcome the fact that technically, these substances are back on the market legally today and no powers are available to deal with that. Therefore, it is important to pass this legislation.

Section 2 sets out clearly and puts into legislation all of the regulations as set out in Schedule 2. This shows how the whole area has changed in recent years as there are approximately six different lots of regulations and exemption orders that have been brought in since 1977 to deal with this area of substances which are a danger to people. It was only right that they were outlawed. However, it is a question of making sure, when Members try to outlaw something, that they stay within the Constitution. Therefore, this legislation now does this and the Bill deals with all the issues that previously were dealt with under regulation. It now brings them forward in legislative form and therefore, it is important that Members pass the Bill and that it becomes law as soon as possible.

The court decision also raises serious issues regarding other legislation in which regulation was brought in. The question arises as to whether such regulation may not stand up were someone to decide to challenge it. There is now an urgent need, particularly in respect of health and justice issues, for Members to examine these and ascertain whether it is necessary to introduce amending legislation in a number of other areas. Members should not be obliged to wait for the courts to make the decisions in this regard.

I refer to the issue of the court asking whether the secondary legislation in question goes further than simply giving effect to principles and policies that are set out in the primary legislation.We need to seek further clarification, and the Department should consider whether it should appeal the case to the Supreme Court so that there is a clear definition and interpretation of the words "principles and policies". While this case has decided the definition of the words regarding regulation under the Misuse of Drugs Act, it does not give an overall view. While it is primary to the court decision in Cityview Press v.An Comhairle Oiliúna in 1980, it might be worthwhile for the Department and Government to consider whether we should seek further clarification from the Supreme Court on the matter.

I welcome the legislation. It is important that we pass it through the House today and that it be signed into law at the earliest possible date. I thank the Minister and everybody involved in bringing forward the legislation at such an early date.