Almost one year has passed since the Director of Public Prosecutions decided not to bring criminal charges against Leo Varadkar over the 2019 leak of a draft GP contract to one of his medical friends. That decision was pivotal for Varadkar, removing a potential roadblock to his return as taoiseach in December. But the leak refuses to go away.
New disclosures from the public ethics watchdog cast fresh light on this most sensitive of cases for it. Months after the DPP chose not to pursue charges, the Standards in Public Office Commission (Sipo) voted under ethics law against conducting a preliminary inquiry into complaints against Varadkar. Such an investigation is a fact-finding exercise before deciding whether there should be a full inquiry.
The split decision last October was the first case in which the commission ever lacked unanimity in its 21-year history, raising questions as to who the dissenters were and why they objected. The Sipo commission, chaired by retired Court of Appeal judge Garrett Sheehan, was not keen to disclose what went on.
Still, records released to The Irish Times under the Freedom of Information Act showed the dissenters were two of the most senior independent officials in the State: Comptroller and Auditor General Seamus McCarthy; and Ombudsman Ger Deering. They were outvoted by three Sipo commissioners – Sheehan; Peter Finnegan, clerk of the Dáil; and Martin Groves, clerk of the Seanad – but private statements they made were bruising for Varadkar.
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Although the then tánaiste claimed vindication when Sipo rejected complaints against him, the dissenters’ criticism of his defence was stark.
McCarthy said some of Varadkar’s assertions “represent low-grade evidence at best, in a matter in which he has a significant interest”. He went on to say Varadkar’s “lack of recall” was unsatisfactory. “If there was a significant legitimate intervention by the Taoiseach in a matter, in the public interest, then it should have been memorialised.”
Deering argued Varadkar was “not beyond the reach of Sipo”, saying claims that the leaked document was no longer confidential were not supported by his own statements or public records.
When all that was made public in December, the dissenters’ stance was seen in political circles to have undermined Varadkar’s claim that Sipo’s ruling cleared him of any breach of ethics. Asked at the time about the McCarthy and Deering statements, Varadkar responded by saying he respected the Sipo decision and would respect it “had it gone the other way”.
These matters are now the subject of a High Court challenge against the Sipo decision by People Before Profit TD Paul Murphy, one of the three original complainants about the leak. The case, initiated in February, is scheduled for mention next month.
That such proceedings are critical for the standards commission hardly needs to be stated – and it is clear from the latest disclosures that that was recognised within the body itself.
When the Sipo commission released the McCarthy and Deering records, it redacted parts of their statements because of FoI exemptions. The Irish Times challenged that decision but the Sipo’s stance was affirmed after an internal review within the commission, which cited a mandatory exemption from release for records subject to legal professional privilege.
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That led The Irish Times to make an appeal to the Information Commissioner, whose office reviews FoI decisions by public bodies. In a binding ruling last week, the Information Commissioner’s office directed the removal of the McCarthy redactions but said the Deering redactions should stand.
At issue in the McCarthy ruling was the conclusion that litigation privilege did not actually apply in his case. The senior investigator in the Information Commissioner’s office did not accept the “dominant purpose” of the record in question “was for apprehended or threatened litigation.”
But the redacted McCarthy observations, released on Tuesday, still confront the implications of litigation against the commission over the Varadkar decision. “Would our arguments be enough to satisfy a judge in a judicial review proceeding (whichever way we go)?” the C&AG asked.
“A court order to reconsider rejection of a complaint would be appalling, and would compromise the credibility of any subsequent decision we made. A court order to stop an inquiry would at least explain why we had no power to pursue a complaint in this matter.”
These might well be seen as rather obvious points. After all, the case turns on the stewardship of a complaint against the holder of the most powerful political office by the public ethics watchdog. However, such concerns were dismissed when the commission decided against a preliminary investigation.
The merits of that decision may yet face the ultimate test in court. Years after the leak and with Varadkar now well into his second term as taoiseach, there is still no end to this affair.
