The High Court is being asked to decide whether the Government must first go to the Oireachtas before it can declare illegal the possession of a psychoactive substance which had been sold lawfully in “Head Shops” until 2011.
An expert group recommended to Government that the substance should be added to a list drawn up in 2010 in response to an explosion of many substances like this available on the internet and in Head Shops, former chief pharmacist at the Department of Health Marita Kinsella told the court.
In October 2012, Lithuanian national, Stanislav Bederev, was charged in Blanchardstown District Court with unlawful possession of methylcathinone for the purpose of supply on April 26, 2012.
He then brought a High Court challenge seeking to quash his prosecution and claiming part of the Misuse of Drugs Act, under which he was charged, was unconstitutional. His trial is on hold pending determination of the challenge.
His lawyers argue the decision to put this drug on the controlled list was impermissible because there are no principles and policies guiding the introduction of such rules.
The State is opposing his case.
Sunniva McDonagh SC, for Mr Bederev, said while they were not challenging the power of the State to ban certain drugs, they were claiming that the Oireachtas, as the legislative entity, and not the Government, is the appropriate body with the law making power to delegate the decision for the declaration of controlled substances.
While it is normal for technical and administrative matters to be delegated to the Government, it was their argument by doing so in this case, it was “an abdication of the role of the Oireachtas”, she said.
It was their case that this was an impermissible delegation of unfettered power where there were no principles and policies guiding the Government in this function, she said.
This was a very real issue because her client “one day is in possession of something legal and the next is facing a possible prison sentence for something that had been legal the day before.”
It is claimed the delegation of such a power to Government was in breach of Article 15 which vests sole law-making power in the Oireachtas
The case continues