The Oireachtas committee examining the case for the impeachment of Brian Curtin has been urged to seek clarification of its powers from the courts, The Irish Times has learned.
This advice came in a letter from lawyers for the judge sent to the Ceann Comhairle and the Cathaoirleach of the Seanad last Friday. However, the Dáil is in recess, and members of the committee have not yet received it.
It is understood that lawyers for Judge Curtin drew the attention of the Oireachtas to the legal problems they saw surrounding the authority of the committee to investigate allegations against their client.
They cited US case law which held that hearings of full houses of parliament had to take place. They also raised the issue of the compellability of the judge to answer questions, when the answers might lead to his losing his job, pointing out this contravened the right not to self-incriminate.
While people can be compelled to give evidence to a tribunal or inquiry, they are indemnified against their answers being used against them in any proceedings leading to sanction. The loss of a livelihood is seen as a sanction by the judge's lawyers.
The committee is due to meet next Tuesday, when the first item on its agenda is likely to be the appointment of legal advisers. The Government and the Oireachtas have already engaged senior counsel, and the committee is likely to engage its own.
In the meantime, the legal advisers to the Oireachtas are studying the letter and considering whether to seek a declaration from the High Court about its powers.
However, in this unprecedented situation it is even unclear who in the Oireachtas is empowered to decide on whether to seek such a High Court decision.