The High Court is being asked by a TD to quash the refusal of the Standards in Public Office Commission (Sipo) to carry out an investigation into allegations that Taoiseach Leo Varadkar leaked a confidential GP contract to a friend.
Dublin South-West deputy Paul Murphy is seeking to bring the challenge against Sipo, Ireland and the Attorney General.
Ms Justice Siobhán Stack on Tuesday deemed as open Mr Murphy’s application to seek permission to bring judicial review proceedings against Sipo for the purpose of ensuring the challenge was brought within the three-month legal time limit from when the disputed decision was taken.
Gary Maloney BL, instructed by Ruadhán MacAodháin of Prospect Law solicitors, said the three-month deadline was due to expire on Thursday.
Counsel, on an ex parte basis (only Mr Murphy’s side was represented), asked the court to “open” the matter for the sake of meeting the deadline and to adjourn it to a later date on the judicial review list. The judge agreed and adjourned the matter to April.
In his challenge, Mr Murphy is seeking a number of reliefs including an order quashing Sipo’s decision of November 9th last not to carry out an investigation under Section 23 of the Ethics in Public Office Act 1995 into the matter.
Right to fair procedures
He also seeks a declaration that Sipo’s decision was determined in a manner that breached Mr Murphy’s right to fair procedures and natural and constitutional justice. He further seeks an order remitting the matter back to Sipo for reconsideration.
Mr Murphy made a complaint in November 2020 to Sipo that Mr Varadkar had provided a confidential copy of a proposed GP contract agreement in April 2019 to his then friend Dr Maitiú Ó Tuathail, who was president of the National Association of General Practitioners (NAGP).
The agreement had been negotiated between the Department of Health, the HSE and the Irish Medical Organisation (IMO). Dr Ó Tuathail’s NAGP was a rival to the IMO and was not a party to the negotiations.
Following publicity about the alleged leak, Mr Varadkar denied it was confidential by the time he passed it on to Dr Ó Tuathail. He also said he provided the document in his capacity as head of government to encourage a broader acceptance of its terms among the GP community. He also said there was no personal advantage for himself.
Mr Murphy’s complaint disputed this characterisation of Mr Varadkar’s conduct. He said the agreement had not been made public, had been labelled “confidential” on its face and in text messages sent about it. The final agreement was published on May 17th, 2019, a month after Mr Varadkar passed it on, he said.
He further claimed Dr Ó Tuathail, personally, and the NAGP, generally, stood to gain an advantage from having access to this document.
No criminal charges
There followed a Garda investigation into the alleged leak and last July, the Director of Public Prosecutions directed no criminal charges were to be brought against Mr Varadkar over the allegations.
Sipo then sought information from Mr Varadkar for the purpose of making a preliminary consideration of Mr Murphy’s complaint. Last November, members commission voted by three to two against carrying out further investigation.
Sipo comprises a retired High Court judge, the Comptroller and Auditor General, the Ombudsman, the Clerks of the Dáil and the Seanad and an ordinary member, Sipo said it had regard to matters including the specific allegations, documents submitted by Mr Varadkar, the provisions of the Ethics in Public Office Act 1995 and the implied executive functions of the office of Taoiseach. Sipo also took into account its own legal advice.
Mr Murphy argues, among other things, the manner in which the Sipo decision was reached was in breach of fair procedures and due process. It also erred in failing to grant Mr Murphy an opportunity to address the legal questions raised and in failing to hold an oral hearing prior to reaching a determination on the scope of its statutory remit and functions, he claims.