Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister. Like other Senators, I welcome the opportunity to speak on the Bill. I note the very speedy way it has been brought before us in light of yesterday's Court of Appeal judgment. As the Minister said, the possibility of the outcome of the judgement had been anticipated and the Department had planned for in by preparing the Bill. This is commendable and, as Senator Quinn said, is in contrast with earlier incidents. Many of us will recall the scramble to legislate following the Supreme Court decision in the case of CC v.Ireland in 2006, when the offence of unlawful carnal knowledge of a minor was struck down. The 2006 Act that was brought in had to be amended subsequently. It is not a new phenomenon that a decision would strike down legislation as unconstitutional and have implications for criminal justice legislation. I was involved in some of the cases around the Damache decision, which had a similar effect on aspects of search warrant procedure and the Offences Against the State Act and legislation was required to deal with it.

It is very good that the Bill had been prepared in anticipation of the judgment. There will be no substantive change to the law – pardon the pun. It restores the substances that were previously controlled under statutory instruments and restores the status quo. The judgment of Mr. Justice Hogan in the Stanislav Bederev case in the Court of Appeal, which gave rise to the legislation, is robust and I read it with great interest. As Senator Colm Burke said, it states very robustly the principles in the Cityview case in 1980 in which Chief Justice Tom O’Higgins said it was not permissible to delegate legislative power where it was more than a mere giving effect to principles and policies contained in the primary statute. Mr. Justice Hogan very logically teased out the application of this principle to the misuse of drugs provisions, particularly to the statutory instruments which had purported to list other species of controlled drugs. While the Government is considering whether to take an appeal to the Supreme Court, his judgment points out that the primary Act, the Misuse of Drugs Act 1977, say a controlled drug is either one that is listed in the Schedule or declared by the Government.

It does not appear to limit the Government's power to classify drugs by reference to the categories of the drugs in the Schedule, which was one of the arguments the State put forward. Nor does the Long Title of the Act give sufficient guidance or criteria to the Government to allow it to be argued successfully that a statutory instrument was merely giving effect to principles and policies. As Mr. Justice Hogan said, the Long Title, “An Act to prevent the misuse of certain dangerous or otherwise harmful drugs” would, arguably, enable the Government to ban tobacco and alcohol as "dangerous or otherwise harmful drugs". It shows the wide scope of section 2(2) and the extent of policy choices that is left to the Government in passing statutory instruments. This is a matter for further consideration as to whether the judgment will be appealed.

As the Minister said, the consequences the judgment will have for other areas of the law where delegated power is provided for in primary legislation is a matter for consideration. There have been reports on the consequences of the judgment for pending prosecutions. Colleagues will be aware that the consequences of the CC case were limited by the subsequent Supreme Court judgment in A v.The Governor of Arbour Hill Prison. The fallout was limited in the sense that persons whose cases had been concluded were not regarded as capable of taking action on foot of the judgment, even if they had been convicted of the unlawful carnal knowledge offence. One would anticipate similarly limited consequences here for prosecutions which have concluded or persons who have pleaded guilty or been convicted. It has been reported that in the small number of cases pending which involve substances which were controlled under the statutory instruments there was anticipation of a potential outcome in the case and other charges have been brought. As the Minister said, the judgment does not affect the best known and most significant categories of controlled drugs, which are already contained in the Schedule to the 1977 Act. It applies only to the substances added through the statutory instruments such as the psychoactive or so-called head shop substances.

The purpose of the legislation is to restore the status quoand it will receive cross-party support. I would like us, on another day, to review our drug policy. I am no fan of the prohibitionist approach. We need to examine, in a considered and careful fashion, other countries which have adopted different approaches to the regulation of what we call controlled drugs. The justice committee has a particular interest in Portugal's model and models of strategic decriminalisation of certain substances. It has not been a happy experience.

Senator Wilson referred to the head shops which led to the passage of the legislation in 2010 and 2011. A considered review would be a useful exercise. All of us would welcome the Bill.