Misuse of Drugs (Amendment) Bill 2015: Committee and Remaining Stages

Amendments Nos. 1 and 2 are related and they may be discussed together.

NEW SECTION

I move amendment No. 1:

In page 5, between lines 8 and 9, to insert the following:

"1. (1) Section 2 of the Misuse of Drugs Act 1997 is amended as follows:

(a) subsection (2) is replaced with the following---

"(2) The Government may only declare a substance, product or preparation (not being a substance, product or preparation specified in the Schedule to this Act), to be a controlled drug for the purposes of this Act if the declaration is presented before the Oireachtas and is subsequently passed by the Oireachtas.",

(b) subsection (3) is replaced with the following---

"(3) The Government may declare that the provisions of this Act shall not apply in relation to a substance, product or preparation specified both in the Schedule to this Act only if the declaration has been brought to the Oireachtas and subsequently passed by the Oireachtas.",

(c) subsection (4) is deleted.".

This amendment is an attempt to amend section 2 of the 1977 Act by inserting new subsections to allow for the Oireachtas to pass the declaration in regard to the control of substances that is proposed under the Bill. The Minister stated that primary legislation has to be brought forward but this legislation is necessary in the interim period while we wait for that legislation to be brought forward. This amendment attempts to deal with that issue and ensure that the operation of banning substances in the future can continue. That is vitally important in the interim period. As I understand it, declarations will have to be prepared anyway for the statutory instrument to be drafted within the Department. The purpose of this amendment is to provide for that to be brought before the Houses in order that it can be voted on and passed if a substance is to be banned in that interim period.

The debate that took place on the issue of the seriousness of the problem of drugs was fruitful and rewarding because we do not get many opportunities in the House to discuss that serious problem. I support this amendment, which is well thought out. If there is to be any change in terms of any declared substance, it gives this House an opportunity to debate the sensitive and serious issue of drug abuse. This is the legislative assembly of the country and every issue that can possibly be discussed should be debated in this House. The designation of a particular drug or something that may happen in the future that should be decided by a particular Department may seem simple but this is such a serious problem throughout the country that it is valuable that the Oireachtas has every opportunity to debate it. This is the body that should make the decisions, not a particular Department. In fairness, issues to do with health and education invariably come before the Oireachtas to be debated or voted on. The same should apply in this case, so I support this amendment.

I do not propose to support this amendment. In reality it is unnecessary as a result of the court decision today. Any substance we may wish to add to the list of controlled substances can only be done by the Houses of the Oireachtas so should the Government deem it necessary to control another five, six or ten substances next week, or in three weeks time, it will be necessary to do so by putting legislation through the Dáil and the Seanad. I personally do not think that is a good idea. There are so many of these substances it would be very cumbersome for us to have to potentially recall the Dáil and the Seanad on regular occasions just to control a particular substance. Later in the year I will bring forward legislation setting out the policies and principles, thus satisfying the court judgment today that would allow us to resume prohibiting substances by order, or potentially by statutory instrument, which would then involve laying it before the Houses of the Oireachtas and allowing Oireachtas Members who disagree with it to challenge it.

As matters stand, as a result of the court judgment today and the legislation that we are putting through tonight, any additions to the schedule will require primary legislation and the amendments are unnecessary.

As we debate, I am quite sure that there are "scientists" who, at the behest of drug dealers, are working on new drugs involving some combination of what is there already or that will replace what will be on the schedule. From my point of view and where I represent, time is of the essence when any of these new drugs appear. Another new drug could appear tomorrow involving some combination of what is there now. If we do not move quickly enough on these new drugs, they grab a hold of young and older people. The legislation, when it appears, will be too late for many of them.

There is a good community policing initiative in the north inner city in Dublin Central but the hands of the gardaí are tied because of the lack of legislation. What the Minister is bringing in now will cover some amount, but it will not cover everything and the hands of the gardaí will remain tied in the future. There has to be action when it is needed, not at a later date when they have probably gone on to another drug.

It is disappointing that the Minister will not accept the amendment. I want to see a more prompt and more urgent response when new drugs appear.

The amendment attempts to shorten the process for proscribing new drugs. The Minister stated he must bring in primary legislation every time he wants to do that but that is more cumbersome. The previous system was that the Department could declare it. I do not see why it cannot be possible to have that declaration merely brought before the Houses so that it can be passed. This would be a quicker and easier administrative process than introducing primary legislation every time for new drugs.

Regarding what Deputy Maureen O'Sullivan said, the Minister intends to introduce the legislation later this year but that could be in December. Before that legislation passes through the Houses, this Dáil could fall and it would be left to the next Government to reinstate it. A system whereby a declaration can be put before the Houses and adopted rather than having constantly to introduce primary legislation seems a way to react more quickly and positively to add to the list of substances. I ask the Minister to give that serious consideration.

I understood from the Minister's response to the earlier engagement that the situation now is that adding substances to the banned list requires legislation until such time as the Minister prepares new legislation to restore the opportunity for the Minister of the day to issue a statutory instrument proscribing any new substance. I have sympathy with the case made by Deputy Pringle but my real concern is the Minister's response that this is not a course that he would like to take. The Minister talks of some months. The new legislation will take considerable time to prepare and there will be particular scrutiny by the Attorney General given all that has happened in relation to the legislation already in place due to this morning's judgment. As Deputy Maureen O'Sullivan stated, new substances are coming on stream almost weekly, particularly in the area of so-called "legal highs"; I raised that issue directly with the Minister earlier today as I have done in a number of fora in recent months. These come under a variety of different names and are being reinvented to suit the purpose of their producers and promoters. It is not good enough that the rest of this year could go by and we will not respond. My hope is that we would respond with all of the speed required and that we would, as I stated earlier, endeavour to be one step ahead of these purveyors of death.

I appeal to the Minister not to think in terms of us parking this issue. We must not park it. We need to be proactive and be prepared to go through the mechanics of legislation, if that is what is required in the interim period. I have no objection to having legislation presented here every other week, if necessary, if that helps in the battle against these, as should be properly designated, "illegal drugs".

I am sorry that I may have misunderstood the intention of the amendment initially. Frankly, it is an attempt to make my life easier by allowing the Minister for Health to prohibit substances by declaration. The problem is that today's judgment does not allow that.

Today's judgment is clear. It states: "Therefore, for all the reasons stated in this judgment, the conclusion that s.2(2) of the 1977 Act purports to vest the Government with what, in the absence of appropriate principles and policies set out in the legislation itself, are in truth law making powers is, accordingly, unavoidable." It was struck down for this reason. We will have to bring in legislation that sets out the policies and principles by which any declaration, statutory instrument or order would be made. That is essentially why the section was struck down.

In January last, when I was sought approval for this emergency legislation to prepare for this eventuality, I also sought Government approval to draft the new legislation that is now required. Work has been under way over the past two months on the new legislation and I hope it will not take us too long. In the absence of laying down principles and procedures, the amendment would not be adequate.

My reading of the judgment is that the court stated that in the absence of the Oireachtas making the decision-----

-----there are no principles or policies laid down. This amendment provides that the Oireachtas makes a decision. That is the body vested with the power under the Constitution to make laws within the State. There is an assumption that if the Oireachtas decided to add a substance to it, that is consideration under the Act and that is the policy and principle as decided by the Oireachtas, as the Legislature, rather than by the Department as an Executive body.

The advice is essentially that for a statutory instrument to be put before the Oireachtas there would have to be policies and principles laid down in law in the first instance to allow that to be done. The only mechanism that we could use to allow the Oireachtas ban new substances is primary legislation.

Any declaration or statutory instrument that I would lay before the House would have to have policies and principles underpinning it in primary legislation and therein lies the difficulty.

I do not know if that is correct.

That is the advice I have.

Is the amendment being pressed?

Amendment put:
The Dáil divided: Tá, 11; Níl, 42.

  • Broughan, Thomas P.
  • Fitzmaurice, Michael.
  • Fleming, Tom.
  • Halligan, John.
  • Healy, Seamus.
  • Kelleher, Billy.
  • McGrath, Michael.
  • Murphy, Catherine.
  • Ó Caoláin, Caoimhghín.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.

Níl

  • Bruton, Richard.
  • Buttimer, Jerry.
  • Cannon, Ciarán.
  • Daly, Jim.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doyle, Andrew.
  • Farrell, Alan.
  • Feighan, Frank.
  • Fitzpatrick, Peter.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Maloney, Eamonn.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McGinley, Dinny.
  • McHugh, Joe.
  • McNamara, Michael.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Eoghan.
  • Neville, Dan.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Mahony, John.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Spring, Arthur.
  • Stanton, David.
  • Walsh, Brian.
Tellers: Tá, Deputies John Halligan and Thomas Pringle; Níl, Deputies Arthur Spring and Paul Kehoe.
Amendment declared lost.
Section 1 agreed to.
Amendment No. 2 not moved.
Sections 2 and 3 agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.
The Dáil adjourned at 10.35 p.m. until 9.30 a.m. on Wednesday, 11 March 2015.