Deputies and senators are likely to ask that the Chief Justice reopen his investigation into the Sheedy affair, it emerged last night.
Political support for this option has grown in the last two days amid continuing frustration at the inability of the Oireachtas Committee on Justice, Equality and Women's Rights to investigate.
Fine Gael proposed at the weekend that the Chief Justice, Mr Justice Hamilton, be asked to seek answers to questions concerning why the two judges and the former senior court official at the centre of the case took the actions they did. The proposal was made by the party's spokesman on justice, Mr Jim Higgins, and the finance spokesman, Mr Michael Noonan.
Fianna Fail and Labour deputies indicated yesterday that they supported this proposal. With the committee due to receive written legal advice on its options this afternoon, there is a growing belief among its members that there will be substantial legal barriers to any other option.
The Fianna Fail whip on the committee, Ms Marion McGennis TD, said last night that anything legally possible should be attempted. "If that means asking Chief Justice Hamilton then that's what we should do," she said. The committee will meet in private session today and in public tomorrow to consider how it should proceed. It is now likely to ask the Government formally to ask Mr Justice Hamilton to continue his investigation.
The Labour deputy leader, Mr Brendan Howlin, who is also a member of the committee, said the proposal was attractive. If the Chief Justice was carrying out the investigation, he said, there would not be a situation in which the Oireachtas was attempting to investigate actions of the judiciary.
The committee will receive its written legal advice today in the wake of last week's decision by the former Supreme Court judge, Mr Hugh O'Flaherty, not to give evidence. The committee had invited Mr O'Flaherty, the former High Court judge, Mr Cyril Kelly, and the former Dublin county registrar of the Circuit Court, Mr Michael Quinlan, to give evidence.
Philip Sheedy was released from jail in October 1998 after Mr Justice Kelly, then a Circuit Court judge, suspended the remaining three years of a four-year sentence imposed for drunk driving causing death. The case was listed for hearing by Mr Kelly after Mr O'Flaherty had asked Mr Quinlan if such a listing was possible. Mr O'Flaherty has said his action was motivated by humanitarian concerns. Mr Kelly has not given reasons for his actions.
The advice to be provided to the Oireachtas Committee today by Mr Kevin Feeney SC will advise on the legal difficulties in the various options available, as the committee seeks explanations as to why the three men acted as they did.
In his letter declining to attend, Mr O'Flaherty said the Constitution stated that neither a judge nor a former judge is answerable to the Oireachtas or any other institution of State, save where an impeachment motion is in the process of being invoked.
This stance has led committee members to believe there could be a constitutional challenge to the options they are considering. The argument made by Mr O'Flaherty would, if upheld by the courts, appear to rule out the other two main options under consideration by the committee. The first of these is to seek to amend the law to allow the committee compel judges and former judges to attend. The second is to establish a tribunal of inquiry.