Michael McDowell (Independent) | Oireachtas source

This is why I queried the notion of merit. The criteria for appointing somebody are manyfold. Governments have in the past, to my certain knowledge, been confronted by people who are clever, hard-working and well steeped in the law and by people who are less clever, less hard-working and less learned in the law and yet the first person who has all these attributes might appear to be somebody whose judgment the Government did not have confidence in. It might not appear in a paper interview, or a suitability interview before the judicial appointments commission, or whatever, but it might well be that a rather dull and unambitious High Court judge is far preferable to the whizz-kid young barrister who seems to know everything and has a degree from Oxford or Cambridge, a master's degree and a diploma and is earning a fortune in the Law Library or whatever. It might well be the case that the plodding judge is the kind of person in whom the Government would have more confidence. That is the point I am making.

Going back to what Senator Norris was saying about the judges making law, the Constitution is the Constitution. It means, at first instance, what a High Court judge, subject to the right of appeal, says it means. Even the fundamental law of this State is interpreted in a particular way. When I say "making the law", it is not legislating in the form of enacting legislation, I agree with Senator Norris. The separation of powers and the Constitution say that the sole function of making laws for the State is vested in the Oireachtas. I have no problem with that but, in the end, the administration of justice involves a radical power of interpretation of the Constitution, common law and statute law to consider, for instance, if somebody falls and breaks a leg, is that worth €30,000 or €80,000? Is the person who was responsible for it liable to pay €80,000 rather than €30,000? Unless we had some far-reaching legislation on personal injuries damages of some kind, or guidelines from the judicial council-----