THE Chief State Solicitor and the Attorney General have refused to appear before a Dail committee in an investigation into the legal strategy adopted by the State in the case of the late Mrs Brigid McCole.
Opposition parties now intend to press the Minister for Health, Mr Noonan, to appear before the Select Committee on Social Affairs in what they claim is the only way of getting to the truth.
Fianna Fail's health spokesman, Mr Brian Cowen, yesterday wrote to Mr Noonan, asking him to waive the privilege which would allow the Chief State Solicitor to answer questions before the committee.
However, following a request from the Fianna Fail leader, Mr Ahern, the Finance Minister, Mr Quinn, confirmed that he had consulted with the Attorney General, Mr Dermot Gleeson, and had been informed that the Chief State Solicitor could not be freed from his legal relationship with the Government in the McCole case.
The committee last week wrote to the Chief State Solicitor, inviting him or relevant officers to assist in discussions into the State's handling of litigation in the McCole case. However, in a letter read at last night's meeting of the committee, the Chief State Solicitor, Mr Michael Buckley, argued that neither he nor the Attorney General would be able to attend for a number of reasons.
His main objection was based on the "fundamental norm" of the legal professional privilege attached to the lawyer client relationship. Even a court of law was not entitled to inquire into the instructions given to a lawyer by his or her client, or vice versa.
"Were the legislature to insist on receiving an account of such advice, this could amount to an interference by the legislature with the independent administration of justice and constitute a breach of the doctrine of the separation of powers," Mr Buckley said.
It would also not be "appropriate" for the State to discuss this litigation where a comparable action was still pending before the courts, he argued.
However, Mr Cowen wrote to the Chief State Solicitor expressing "some significant disappointment" with his letter to the committee. While Mr Buckley was "quite correct" in pointing up his entitlement to legal professional privilege, this applied to "the client's privilege" which the Minister for Health could waive.
Describing as "without substance" the contention that it would be inappropriate to assist the committee when proceedings similar to the McCole case were outstanding, Mr Cowen said the tactics deployed in the McCole case could have no bearing on other proceedings before the courts "unless the State wishes to repeat its, regrettable handling of that case".
The chairman of the Dail Committee on Legislation and Security, Mr Charles Flanagan (Fine Gael), accused Mr Cowen last night of a blatant attempt to undermine the judicial process.
He said no lawyer could be made amenable to a Dail committee on a matter which was currently before a court of law.