Michael McDowell (Independent) | Oireachtas source

Unless we have a legislative intervention of that kind, in a considerable number of cases, the law means what the Judiciary says it means. That applies not simply in Ireland but across the common law world. The power of the common law Judiciary is to interpret the law subject only to the right of the appellate courts to put them wrong, or for the Legislature to legislate where it is competent to do so, or for the people to amend the Constitution to reverse a particular outcome of a particular case. The people did that, for instance, in the X case on the right to travel. The people said that, when they voted for the eighth amendment to the Constitution, they had no intention of people being subject to travel injunctions. We effectively reversed the finding by the Supreme Court of what the eighth amendment meant by saying it did not mean that anymore.

That is why I say the Judiciary has a function in law making - not in the sense of legislating but in the sense of interpreting the law and Constitution. I will add, by way of a footnote to that, that every judge of the High Court, sitting alone, has the power to invalidate an Act of Parliament, an Act of the Executive or the acts of a lower court by reference to the Constitution. That power is not present in many states in the world. It is peculiar to the common law where there is a written constitution. That goes to the point as to why we are asking people who have that power to prove their suitability to be of an appellate court by subjecting them to an interview, selection or short-listing process since they have that power already and since, as I pointed out here and in a recent newspaper article, they are entitled, if invited by the President of the Court of Appeal or the Chief Justice, to sit as a member of that court pro temalready. Why they have to submit themselves to an assessment as to their suitability to a group of outsiders, the majority of whom are being selected on the basis that they are not legally experienced persons, I cannot understand at all.

To return to the point that we are dealing with here, I really believe it is important that under no circumstances can the Government be obliged to identify people who have been unsuccessful applicants. That has to be stated as part of the law and that is the first leg of this amendment. I do not see a prohibition of that kind anywhere in the legislation unless it is by inference that the Government, by convention, should not reveal that kind of information. That the Government is not obliged to do so should not, in any way, inhibit the Government from informing unsuccessful applicants of the fate of their application.