The Oireachtas banking inquiry has been advised it should not hear evidence from David Drumm because it would allow him to have an advantage over the committee members.
The committee's legal team advised against the former Anglo Irish Bank chief executive appearing before the inquiry via video link from the US. The inquiry members were told laws providing for criminal sanction against a witness would not apply to Mr Drumm because he is outside the jurisdiction. The legal team said this would give him an advantage over the committee.
Members were also advised that Mr Drumm has given no reason for his decision not to attend.
The committee was told it can proceed on the basis that the former Anglo chief is refusing to attend.
The Director of Public Prosecutions also advised against the hearing of evidence via video link. The office said it would be "highly concerned" about any such move and warned it could make an application to the High Court if it proceeded.
Mr Drumm has refused to return to Ireland to appear before the inquiry for a scheduled appearance this week. He had offered to answer questions via video link but a number of members objected to that move.
Living in Boston
The banker, who is living in Boston, has produced a written statement to the committee.
Members will meet on Tuesday to decide whether to read the contents of the correspondence into the record.
Inquiry members including Fianna Fáil TD Michael McGrath and Socialist TD Joe Higgins said they would wait to hear the legal advice before making a decision on whether this should be allowed.
Mr McGrath said: “The statement was received and legally proofed and sections have been leaked over the last couple of days. We need to consider the merit in rejecting it and consider whether it should be submitted to evidence even though it cannot be challenged by way of oral questions.”
In his statement, Mr Drumm contradicts evidence given to the inquiry by former taoiseach Brian Cowen.
Mr Cowen was questioned by members earlier this month about a dinner he attended with the board of Anglo Irish Bank on April 24th, 2008. The former taoiseach told the committee no business was discussed and it was a purely social occasion. In his statement, Mr Drumm says he sat beside Mr Cowen at the dinner and they discussed banking issues.
Fine Gael TD Eoghan Murphy said the legal advice would form the direction of the committee. “It is not clear what is happening with the written statement provided,” he said.
“I would imagine it will fall because you cannot cross- examine Mr Drumm or put the details of it to other witnesses.”
The committee will also debate a letter from Fianna Fáil Senator Marc MacSharry requesting that it review its witness list and invite a number of new people to give evidence. He has asked that it hear from Marie Mackle, a whistleblower who raised concerns in the Department of Finance during the crash, and Jonathan Sugarman, a former executive with Unicredit Bank Ireland.
Nicholas O’Brien, assistant secretary general with the Department of Finance and former Department of Finance official Robert Pye should also be added to the witness list, Mr Mac Sharry said.
The Senator said this was vital to the work of the committee and asked the issue be discussed at the private session on Tuesday.
Mr MacSharry’s request comes after claims compiled by a whistleblower who worked with the banking inquiry were sent to members. The former investigator has alleged certain witnesses were blocked from attending the committee including Ms Mackle.
The whistleblower has also alleged their salary has been reduced since they made a series of allegations about the workings of the committee.
Mr MacSharry also requested that the chairman of the committee Ciarán Lynch call for the wages of the whistleblower to be restored.
The banking inquiry is investigating the cause of the collapse of the banks. It is due to complete its hearings by September and a final report is expected to be issued by November.