People Before Profit TD Paul Murphy has won a High Court challenge over the ethics watchdog’s refusal to carry out an investigation into allegations that former taoiseach Leo Varadkar leaked a confidential GP contract document to a friend.
Mr Justice Barry O’Donnell ruled Mr Murphy was entitled to an order quashing the Standards in Public Office (Sipo) decision and directed that the matter go back to Sipo for further consideration.
The complaint centred on an allegation that in 2019 Mr Varadkar provided a copy of a confidential agreement negotiated between the Department of Health, the HSE and the Irish Medical Organisation (IMO) to Dr Maitiú Ó Tuathail, the then president of the National Association of General Practitioners (NAGP).
At that time, negotiations were at an advanced stage over the “GP Contractual Reform and Service Development” and the IMO was a party to the negotiations, whereas the NAGP was not.
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This was revealed publicly in the Village magazine and Mr Varadkar made a statement saying he had given it to Dr O’Tuathail but said, while it was contrary to best practice, there was nothing unlawful or improper about it.
Mr Murphy’s complaint followed and then the gardaí conducted an investigation and sent a file to the DPP who decided in July 2022 that no charges should be brought.
Sipo then asked Mr Varadkar for a response and in November 2022 gave its decision not to appoint an inquiry officer or carry out an investigation in a four page report. Three members of Sipo voted for the decision with two against.
Mr Murphy brought judicial review proceedings arguing, among other things, that the Sipo reached its decision in a manner that breached fair procedures and due process. It also erred in failing to grant him an opportunity to address the legal questions raised and in failing to hold an oral hearing before reaching a determination on the scope of its statutory remit and functions, he said.
Sipo opposed the application saying that the process it utilised in reaching its decisions was at all times fair, adequate and consistent with statutory functions. It denied that it failed to provide adequate reasons.
In his judgment, Mr Justice O’Donnell said it is clear that, in parallel with the general administrative law requirement for reasons to be given for a decision, the Oireachtas expressly requires the Sipo to explain its decisions in writing.
This can be taken as a reflection of the public interest considerations engaged by the Sipo’s work, he said.
The judge said it can be seen that the approach adopted by the Sipo appears to rest on a broad proposition that its statutory remit does not extend to a consideration of complaints that require the investigation of acts taken by the Taoiseach which are stated to have been done in furtherance of the executive functions.
It was not clear, the judge said, but it would appear to follow that a similar reasoning would also rule out investigations of the acts of members of the Government acting in furtherance of the executive power of the State.
That proposition was not based or certainly not based expressly on a contention that this is required by the Constitution, he said. Rather, it was presented as flowing from the terms of the statute, he said.
If the complaint as made required the Sipo to act outside its statutory remit, it was prima facie inadmissible, he said.
On the other hand, if the complaint was admissible then it is not clear why the Sipo considered that it would be unable to obtain sufficient evidence.
It may be that there was a concern about the Sipo’s entitlement to gather evidence that may be found in the confidential discussions of the Cabinet, but this was not stated by Sipo, he said.
“Ultimately it is not for this court to fill in the blanks in a decision or to propose understandings that are not apparent on the face of the (Sipo) report, the report must stand or fall on its own merits by reference to its own terms,” he said.
The judge said in relation to the appointment of an inquiry officer, this decision by Sipo was lawful and Mr Murphy was incorrect in asserting the decision was erroneous or inadequately reasoned.
However, for the reasons explained the court has concluded that the decision not to carry out an investigation was inadequately reasoned.
Mr Murphy was entitled to an order quashing the Sipo November 2022 decision and the matter should be remitted to the Sipo for further consideration, he said.
Speaking at Leinster House shortly after the judgement, Paul Murphy said the ball is now “firmly back in the court of Sipo” to investigate his original complaint.
Murphy urged Sipo to do so as quickly as possible, saying it is unclear if Varadkar will be running as a TD in the coming general election.
“He is still a TD, we don’t know whether he’ll stand for election or not in a number of months.
“But either way, the people of Dublin West have the right or should have the right to know whether Sipo finds he breached the ethics legislation or not by the time that general election happens,” he said.
Murphy said Sipo’s defence for not investigating, in which Varadkar was acting in his capacity as Taoiseach when he shared the contract, was “extremely flawed” before describing it as the “Nixon defence”.
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