Delegation, Drugs and Republicanism: Bederev v. Ireland,  IECA 38
Ireland now has a Court of Appeal. If some of its citizens were unaware of its existence, the buzz that followed Bederev v. Ireland,  IECA 38 put paid to any lack of public awareness. In a set of reasons by Hogan J., the Court held that s. 2(2) of the Misuse of Drugs Act 1977 was an unconstitutional violation of the rule against delegation, a conclusion that had the legislature scrambling for a fix pending an appeal to the Supreme Court.
Section 2(2) gives the executive the power to specify “controlled drugs”. According to s. 3, it is an offence to possess any such drugs. Hogan J. concluded that the executive was basically “at large” (at para. 68) in determining which drugs to specify. Section 2(2) thus amounted to a sweeping delegation of legislative power, contrary to the constitutional rule that only the Oireachtas (Parliament) may pass legislation. There were no meaningful ‘principles and policies’ to constrain the power to specify “controlled drugs”:
58. One may immediately ask: how is to be determined which of these dangerous or harmful drugs are to be controlled and which are not? How can it be determined which drugs are “dangerous”? Again, one might ask: dangerous to whom? Is this standard to be measured by reference to the general public? Or would it suffice that the drug in question would be dangerous if consumed or used by certain sectors of society such as children or young adults? By what standards are the questions of whether particular drugs are “harmful” and liable to be “misused” to be assessed and determined?
59. Virtually every drug is potentially harmful and liable to be misused. Would it suffice for this statutory purpose if, for example, some common pharmaceutical product had been misused for time to time in the community, possibly with unfortunate and serious side-effects for those who did abuse the drug? Could the product be the subject of a s. 2(2) order if it caused serious medical problems in a minority of cases, even though the product itself was regarded as beneficial and wholesome by the medical community? What levels of “harm” and “misuse” need to be established before an order could properly be made under s. 2(2) of the 1977 Act? Could a particular drug be properly made the subject of an order under s. 2(2) of the 1977 Act where there was a respectable body of scientific and medical evidence to the effect that the drug in question should not be controlled or that its beneficial properties strongly outweighed the risk of abuse by a minority of patients?
It is worth noting that the executive’s power was not unfettered, strictly speaking. If the executive were to specify cats, dogs or law professors as “controlled substances”, the order would no doubt be ultra vires. The non-delegation rule, by contrast, targets overly broad exercises of discretion (an idea that common law judges sometimes find difficult to grasp).
As is well known, it is next to impossible to develop precise criteria capable of identifying such overly broad delegations of power. But there are good reasons to be suspicious of overly broad delegations — especially in the area of fundamental rights, where they may have a powerful chilling effect. Those favourable to republican political theory may find something to like in non-delegation doctrines, as I wrote last summer:
Broad delegations of power increase the probability that unforeseeable or arbitrary decisions will be rendered, leaving the individual at the mercy of official discretion. Stricter requirements for valid legislation would, on the republican view, reduce the probability of arbitrary decision-making.
Indeed, if non-delegation doctrines have republican rather than libertarian roots, it may also explain why some see delegations to private parties as especially suspect. The US Supreme Court once described this as “legislative delegation in its most obnoxious form” and the Irish Supreme Court recently struck down a law allowing representatives of employers and employees to negotiate contracts that were binding industry wide, partly because legislative power was “granted over a broad area of human activity to private persons, themselves unidentified and unidentifiable at the time of the passage of the legislation”, not through a process requiring ministerial approval and legislative review (McGowan v. Labour Court,  2 ILRM 276, quoted in Bederev at para. 22). And in his concurring reasons in the recent Amtrak case at the US Supreme Court, Alito J. expressed similar concerns.
A libertarian concerned about restrictions on freedom to act might care less about the source of a potential restriction than its effect; but a republican might care more about the possibility of holding to account, or engaging in dialogue with, the delegate. As Alito J. put it in the Amtrak case:
Liberty requires accountability. When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences. One way the Government can regulate without accountability is by passing off a Government operation as an independent private concern (Department of Transportation v. Association of American Railroads, 575 U.S. _____ (2015), slip opinion at pp. 1-2; see also pp. 6-8).
Justice Alito goes on in the following sentence to suggest that the result may be increased regulation, an indication perhaps that libertarian and republican concerns may sometimes overlap, but his concerns are primarily of the latter variety (see especially pp. 6-8).
Bederev was a classic non-delegation case, but it provides an interesting perspective on the problem of broad delegations. Although Irish libertarians might have cheered the brief legalization of previously illegal substances, their republican counterparts might also have got something of a kick from the Bederev decision.
This content has been updated on March 28, 2015 at 13:46.