Head shop on South William Street, Dublin in 2010
Today the Court of Appeal in the Bederev case declared Section 2(2) of the Misuse of Drugs Act 1977 unconstitutional.
We asked Legal Coffee Drinker, what’s it all about?
Broadsheet: “Legal Coffee Drinker, what’s it all about?”
Legal Coffee Drinker: “Well, let’s start with Section 2(2). This is a section in the 1977 Act allowing the government to declare ‘any substance, product or preparation’ to be a controlled drug for the purposes of the Act.”
Broadsheet: [shuffles]”Like what substances?
LCD: “The Act simply says ‘any substance, product or preparation’, without defining it further. Judge Hogan, in the Court of Appeal, pointed out that this is so wide that alcohol or tobacco could be made a controlled substance by the government, if it so wishes.”
Broadsheet: “Coffee?”
LCD: [refills cup] “On the face of Section 2(2), yes, coffee could be made a controlled drug. If the government so wished.”
Broadsheet: “Let them try sez you.
LCD: “Yes.”
Broadsheet: [pause] “So…what are the consequences of making something a controlled drug?”
LCD: “Possession, manufacturing, importation or supply of the substance is restricted and may be (indeed, usually is) a criminal offence.”
Broadsheet: “Have many drugs been declared controlled under that section?
LCD: “Yes. Quite a few. You’ll see a list of the government ordersmade under Section 2(2) here. If you click on them, you’ll see the names of the substances declared controlled in each case. They include ecstasy, magic mushrooms, head shop drugs and new psychoactive drugs.”
Broadsheet: “And this has now been held unconstitutional?”
LCD: “Yes. Because giving the Government such an open-ended power to designate controlled substances breached the doctrine of the separation of powers contained in our Constitution. According to this doctrine, judicial power is exercised by the judiciary, executive power by the government and legislative (law making) power by the Oireachtas.
Put another way, laws should be passed by the legislature, not the government. When the legislature passes an Act giving a power to the government to supplement or fill in gaps in an Act, that power cannot be too wide, it must be defined in nature and there must be guidance in terms of principles and policies regarding its exercise.
According to the Court of Appeal, the power given to the Oireachtas to declare substances controlled drugs under Section 2(2) was too wide and not subject to control – it represented an abrogation of law making power to the executive and this was unconstitutional.”
Broadsheet: “And the consequences of Section 2(2) being held unconstitutional?”
LCD: “Well, until amending legislation takes effect, all the substances previously declared controlled substances under Section 2(2) are now legal.
Broadsheet: “All drugs?”
LCD: “All drugs prohibited under Section 2(2), they’re listed in the ministerial orders linked to above.”
Broadsheet: “But not heroin, cocaine, cannabis or LSD?”
LCD: “No, these are controlled drugs listed in the Schedule to the 1977 Act, they come under Section 2(1) which is still constitutional, not Section 2(2).”
Broadsheet: “And what about previous convictions under Section 2(2)?”
LCD: “An extremely interesting question. The courts are still grappling with the question of the retrospective effect of a finding of unconstitutionality on previous convictions.
The traditional view was that a finding that a piece of criminal legislation was unconstitutional did not automatically invalidate previous convictions under the legislation. The leading case is A v Governor of Arbour Hill Prison [2006] 4 I.R. 88; [2006] IESC 45, where an accused was convicted under a statutory provision (section 1(1) of the Criminal Law (Amendment) Act 1935 later found to be unconstitutional. [drains cup]. It was held that he could not rely on the subsequent finding of unconstitutionality as a ground for challenging his conviction, the Court of Criminal Appeal stating as follows:-
“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.”
There have however been some cases which indicate wider retrospective effect for a finding of unconstitutionality, but none dealing with the point exactly. Perhaps we will find out the answer when someone challenges their conviction under Section 2(2) on the basis of this case. In the meantime, there’s a good discussion of the issue by humanrights.ie here.”
Broadsheet: Thank you Legal Coffee Drinker. Extremely helpful. Some of the ‘sheeters were planning a gathering tonight if you fancy. For the legal loophole that’s in it.”
LCD: “No thanks.”
Broadsheet: “There’ll be coffee…constitution permitting.”
LCD: “No really..”
Broadsheet: ” Karl may go down the ‘k-hole’?
LCD: “What? No.”
Broadsheet: “Fair enough. Karl probably won’t go down the hole in anyway. Not entirely sure what it entails meself.”
LCD: *click*
Broadsheet: “Thanks Legal Coffee Drinker.”
Earlier: Everyone Stay Cool
Related: Varadkar: ‘Dozens’ of convictions in question after drug law ruling (Breakingnews)
(James Horan/Photocall Ireland)
TL;DR
any yokes?
Look at you already – the concentration span of a gnat. Last thing you need is a yoke.
screw you, my dial only has 2 speeds… fast and asleep
Here, try this yoke, it might slow the pace for ya!
https://readingacts.files.wordpress.com/2011/10/yoke1.jpg
*rubs face against pointy edges*
this is amazing
Haha
Hang on.
Just how wide-ranging is that?
Because there’s more than one Act out there with very similar approaches to Section 2(2) in terms of the authority it vests in the executive…
It’s a universal principle, Mark. Law-making is for the legislature. The executive may be permitted to flesh out the detail in legislation, but only in the sense of giving effect to principles and policies contained in the parent statute. Though I have to say that the Misuse of Drugs Act was quite startling in the lack of any guidance given to the executive as to how to exercise ts power to classify substances as controlled drugs.
That… opens up a few questions I didn’t think were open. Thanks for that LCD…
Such as?
It’s me, so do you really need all three guesses? :D
Guess 1 – Guns
Guess 2 – Sandwiches
Guess 3 – Guns in sandwiches ie. gun sandwiches
Guns and sandwiches?
MMMMmmmm wild boar ham sandwiches….
for the last time: NO, you cannot marry your cousin.
Actually, I’m pretty sure you can in this country. The ban is on immediate blood relatives marrying (ie. you can’t marry a sibling, a parent or a grandparent).
Yes, that’s a thing. Honestly, for peace of mind, don’t read the forms too carefully or ask questions when getting your marriage licence.
(The grandparent/parent thing used to be a tax dodge to avoid paying inheritance tax on the farm apparently).
Yeah, the list is more about avoiding complicated inheritance issues that stopping blood relatives marrying.
“Karl may go down the ‘k-hole’”
I think I had a spasm reading that… anyone wanna give me a massage? :)
Just drank half a glowstick and vomited into my bosses pocket.
Anything could happen
who passed this back then, was it the fat one?
Yes, the one with the weight/alcohol problem felt she had the right to tell us all what we can and cannot consume.
If I read it correctly above, there are a bunch of Statutory Instruments (S.I.) since the 1977 Misuse of Drugs Act which are now invalid, 1979, 87, 93, 03, 04, 06 ect, so the Fat Hobbit was not the only one who has done this as Health or Justice Minister, but to be fair, she did go a little wild on this in her time.
http://www.irishstatutebook.ie/ResultsTitle.html?q=misuse+of+drugs+act&search_type=all&button=Search
I think the 1984 Misuse of Drugs Act was passed by the Oireachtas so that is still law.
oh ya Mary Harney and Dermot Ahern, the brother of that other odious bottomhole
Dermot Ahern is not related Bertie Ahern
Fianna Fail is sort of a family.
This really seems like the premise for a bad teen comedy. Like The Hangover but with drugs instead of drink. Although the hangover did have drugs as well. Either way the guy gets the girl at the end.
Strange, in 1993 the following were made controlled substances:
7. The following substances, namely:
Hydrochloric acid
Sulphuric acid
How are they drugs?
Back in the day the cool kids skulled hydrochloric acid and chased em with Yops. Had to be made illegal since many other of the poorer young uns could only afford KVI brand yoghurt from crazy prices, which lead to many deaths, since those yoghurts weren’t gluten free.
I read about that…
It’s probably to do with the preparation of drugs, I think hydrochloric acid is what you mix cocaine with to make crack.
Cocaine + baking soda + water + heat = crack
I’m a little in love with LCD
The comedown is too much though.
legal coffee drinker is the best thing on this site by miles.
Plus country miles
And who would have guessed that LCD and Mani are the same person!?!
Woo it’s all legal reach for the lasers. Broadsheet by any chance if you could ask LCD could someone object to or bring a challenge against the new proposed emergency legislation could this loophole be open longer then 24hours.
Until after the weekend like?
Well considering how long it normally takes them to write new legislation, how do we know that their rushed emergency legislation isn’t unconstitutional as well. So maybe it needs to be examined a bit longer then an hour in the senate, i’d say the government legal teams would need at least a week to make sure it is air tight and not just another balls up.
Enda should present a giant bowl of magic mushrooms to Obama next week.
Shouldn’t Obama be coming here to present us with a bowl of something nice, maybe on US Independence Day? Doesn’t it go both ways?
24 hour party people.
I said nice one brother……
Dammit wrong movie reference.
Srt8 forward question: When did ecstasy and magic mushrooms become illegal in Ireland?
so what is the take on the rushed legislation? im wondering wtf they will rush by us in the hope that no one really looks at it.
I genuinely want to know when and if someone challenges their conviction under Section 2(2). Also the new list of controlled substances. Better order in more coffee there Broadsters.