Emergency legislation to close a loophole that legalised a number of drugs has raised the question as to why some substances are banned but others are not, writes Cormac O’Keeffe.
While the Government has moved with great speed to rectify a gaping hole in our drug laws following a landmark ruling in the Court of Appeal, it has not tackled a wider, and more fundamental, issue raised in the same judgement.
As has been widely reported, Mr Justice Gerard Hogan said that the legal mechanism used by the Government to add new substances to a list of controlled drugs was unconstitutional.
He, along with his two fellow judges, found that this power was one that must, under the Constitution, be carried out by the Oireachtas, as it was a matter of policy.
The result of the appeal court’s decision was that all the drugs added to the list through regulations under Section 2 (2) of the Misuse of Drugs Act 1977 were not illegal. This led to the Government rushing through emergency legislation to rectify the problem, whereby the Oireachtas voted to make the drugs illegal.
But a second issue highlighted in the judgment was the absence of reasons in the 1977 Act, either in Section 2 (2) or elsewhere, which would set out how, and on what basis, new drugs would be added to the schedule.
Mr Justice Hogan said that for the Government to have this power delegated to it by the Oireachtas, the original legislation must contain “clear principles and policies”.
Source: Cormac O'Keeffe, Irish Examiner, 13/03/15
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