Minister of State at the Department of Justice (Deputy James Browne): I move amendment No.1:

In page 5, to delete line 5.

This amendment proposes to delete section 6(b) of the Bill as published. Section 6(b) of the Bill repeals subsections (3E) and (3F) of section 27 of the Misuse of Drugs Act 1977. These subsections provide for a mandatory minimum sentence of not less than ten years imprisonment for a second or subsequent possession or importation of drugs offence. I am advised that in June of this year, subsequent to the publication of this Bill, the High Court ruled in a further case, that of Sean McManus v. the Minister for Justice and Equality and others, that sections 27(3E) and (3F) of the Misuse of Drugs Act 1977 were unconstitutional. The ruling was made on the same grounds as those in the 2019 Ellis case that motivated this legislation. As it is not standard drafting practice to repeal provisions that have already been struck down by the courts, I propose deleting section 6(b) of the Bill. However, on legal advice, I propose to proceed with sections 6(a), 6(c) and 6(d) as published as these contain secondary references to section 27(3F) of the Misuse of Drugs Act 1977 which were not struck down by the High Court in the McManus judgment.

In effect, the proposal in the original drafting was to include an amendment to repeal various subsections of the Misuse of Drugs Act as the McManus decision now effectively finds them unconstitutional. The practice appears to be that one does delete a section that has been found to be unconstitutional.

[Full Debate here]