The Government has conceded in private briefings with the Opposition parties that the process of impeaching Judge Brian Curtin will be fraught with legal difficulty, it emerged last night.
The Minister for Justice, Mr McDowell, said yesterday that the question of negotiation with the Circuit Court judge did not arise because his legal team had indicated a preference to deal directly with the Oireachtas.
With the Dáil set to vote on a motion next Tuesday to set the impeachment process in train by establishing an Oireachtas Committee to review Judge Curtin's case, Opposition figures were briefed on the potential legal threats to the process.
Officials acting for the Attorney General, Mr Rory Brady, are said to have emphasised to Opposition figures that the establishment of transparent procedures to conduct the process will be crucial.
The process follows the judge's acquittal on charges of possession of child pornography after it emerged that the warrant used when gardaí searched his home had expired.
It is understood the officials warned that the process could be challenged in the courts at any stage, if the process was not deemed transparent or if the procedures adopted by the Oireachtas were not properly followed.
Sources said officials indicated that the process would be highly vulnerable to legal challenge because there is no precedent for such action. Despite such difficulties, Mr McDowell told RTÉ yesterday the Government was obliged to respect the judge's preference to deal directly with the Oireachtas.
"We can only operate on the basis of what Judge Curtin's lawyers said, who presumably act on his authority and on his instructions." While Mr McDowell did not rule out negotiation, he emphasised that such an option had not arisen.
It is understood there has been no signal from the judge's legal team of any change in his position.
The Minister said: "The Government wrote a letter and asked for a full response and was told in the view of Judge Curtin that it would be inappropriate to make any response. So presumably, if such was in his mind or in his legal advisers' mind, we'd have had a different approach taken at this stage."
He went on: "The Government was clearly informed by the lawyers representing Judge Curtin that they did not propose to make any response to the Government request for information and we have to respect the position that he and his lawyers are taking."
