Supreme Court holds that statutory Schedules are integral to the Act for principles and policies analysis.

THE SUPREME COURT

[Record No. High Court 2012/11018P]

[Appeal No. Court of Appeal 2014/1409

[Appeal No. Supreme Court 2015/31]

Denham C.J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Dunne J.

Charleton J.

BETWEEN:

STANISLAV BEDEREV

PLAINTIFF/RESPONDENT

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS/APPELLANTS

Judgment of Mr. Justice John MacMenamin dated the 22nd day of June, 2016

1. I agree with the judgment and order proposed by my colleague, Charleton J. I would, however, wish to add a few observations.

2. First, I would wish to record my entire concurrence with Charleton J.’s observations to the effect that, when engaged in a

principles and policies analysis, the task of a court is to analyse what is in the statute. I do not think it is part of that analysis to

consider evidence adduced as to how the statute in question is administered by the relevant authorities. It is the statute which must

be looked at in order to analyse whether the principles and policies are sufficiently identified.

3. The first observation leads to a second. As Charleton J.’s judgment makes clear, for the purposes of a principles and policies

analysis, one is entitled to look to the Schedule, as well as the main body of the Act. Absent a resort to the Schedule in this case,

one might very possibly pose to oneself questions such as “How can it be determined which drugs are ‘dangerous’?” (see paragraph

58 of the judgment of the Court of Appeal).

4. The misconception regarding the status of the Schedule, I think, stemmed from the usage of the word “or” in Hardiman J.’s

judgment in Montemuino v. The Minister for Communications, Marine & Natural Resources [2013] IESC 40. Indeed, the word “or” is

one which is very apt to mislead in interpretation. In Montemuino the word “or” was used in the disjunctive sense. It posed an

alternative, as in the case of a child who may ask for X or Y for Christmas. (See Principles of Legislative and Regulatory Drafting, Ian

McLeod, Hart Publishing, P.79, 2009). The relevant words of the Fisheries Legislation in question in Montemuino provided for forfeiture

following conviction of “all or any of the following found on the boat to which the offence relates (a) any fish, (b) any fishing gear.”

(emphasis added). It was in that context that Hardiman J. correctly held that the word “or” was, in that sense, and in the context of

that legislation, antithetical and disjunctive. The words conveyed that, on a conviction, either the entirety of the fish or equipment,

or just part of the fish or equipment might be forfeited, and that this was a matter for the sentencing court’s discretion.

5. Partly as a consequence of applying this interpretation of “or”, which thereby excluded the Schedule from consideration, the Court

of Appeal reasoned that there was no basis for suggesting that the power of the government to make an order under s.2(2) of the

Misuse of Drugs Act, 1977 (“the Act”), could be read as being implicitly limited on an ejusdem generis basis, by reference to the

categories of drugs listed in the Schedule.

6. In fact, in the 1977 Act, the word “or” is used, in a different and conjunctive sense, as in the case of a sign on a bus saying a

seat is reserved for elderly or disabled people. (See, again, McLeod, op. cit., at p.79/80). Section 2(1) of the Act defined a

“controlled drug” as:

“any substance, product or preparation (other than a substance, product or preparation specified in an order under

subsection (3) of this section which is for the time being in force) which is either specified in the Schedule to this Act

or is for the time being declared pursuant to subsection (2) of this section to be a controlled drug for the purposes of

this Act.” (emphasis added) This is conjunctive.

7. Section 2(2) of the 1977 Act goes on to provide:

“The Government may by order declare any 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 and so long as an

order under this subsection is in force, this Act shall have effect as regards any substance, product or preparation

specified in the order as if the substance, product or preparation were specified in the said Schedule.”

8. Section 2(2) contains the words attaching the Schedule to the body of the Act. These entail that analysis is not confined to the

main body of the Act, when looking for principles and policies. A consideration of the whole Act (including the Schedule), is

permissible.

9. Bennion, on Statutory Interpretation, 4th Edition (Butterworths 2002, at page 614), makes a number of observations which are

relevant on this point. The author observes that it is often found convenient to incorporate part of the operative provisions of an Act

in the form of a Schedule, and that the Schedule is often used to “hive off” provisions which are too long, or detailed, to be put in

the body of the Act. This observation applies to the Act and Schedule.

10. Bennion refers to Attorney General v. Lamplough [1878] ExD 214, where, on the question of a Schedule to an Act, imposing a

stamp duty on a number of articles identified in that Schedule, Brett L.J. observed:

“… with respect to calling it a schedule, a schedule in an Act of Parliament is a mere question of drafting – a mere

question of words. The schedule is as much a part of the statute, and is as much an enactment as any other part.

…” (at page 229) (emphasis added)

(See, also, Flower Freight Company Ltd. v. Hammon [1963] QBD, at page 275, and R v. Legal Aid Committee No. 1 (London) Legal

Aid Area, ex parte Rondel [1967] QBD 483, at 489).

11. To the same effect, Dodd in ‘Statutory Interpretation in Ireland’ (Tottel 2008) observes that a Schedule often contains matter

which is deemed too detailed and cumbersome to be contained in the main body of an Act (para. 3.36). The author points out that

Schedules have been used to set out operative components on the nature of sections, international treaties, lists of repealed and

amended acts, technical and regulatory matters, forms, transferred functions, and even proposed bills. (See the judgment of this

Court in Riordan v. An Taoiseach (No. 2) [1999], where the Schedule was undoubtedly treated as an integral part of the Act. (See

also s.9 Interpretation Act, 2005).

12. I would add one further observation. What lay behind the judgment under appeal was, I think, an entirely proper concern for the

protection of the values enshrined in Article 15.2.1 of the Constitution. The vital nature of that provision is emphasised when, as

here, a question arises regarding the criminalisation of certain activities or conduct. The Article makes clear that, subject to Article

15.2.2, exclusive power of making laws for the State is vested in the Oireachtas, and not elsewhere.