Leo Varadkar left the Dáil three weeks ago but the “Leo the leak” affair that tarnished his reputation lived on, if only because it was still subject to review by the public ethics watchdog. Now the Standards in Public Office Commission (Sipo) has resolved for a second time not to investigate the leak. Will this be the end of it?
The answer is largely in the hands of Paul Murphy, the People Before Profit TD who took High Court action that led to a June ruling to quash Sipo’s original split decision not to investigate the leak. Mr Murphy will decide whether he takes “further legal action” in the new year.
More than five years have passed since Varadkar, then taoiseach, sent a draft State contract with the Irish Medical Organisation to his friend Dr Maitiú Ó Tuathail, leader of the National Association of General Practitioners (NAGP), an IMO rival that is now defunct.
Varadkar must regret that now. When Village magazine landed the scoop on the leak, there were political ructions. The affair spawned a Garda investigation, a Director of Public Prosecutions file, High Court litigation, a Dáil apology, a confidence motion and not one but two Sipo reviews.
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Sipo’s 2022 decision was struck down six months ago by Mr Justice Barry O’Donnell when he said its explanations for not carrying out an inquiry were inadequately reasoned. That was the ruling that led to Sipo’s new decision on Thursday, in a 17-page document that finally breaks six months of silence since the judge struck down the original decision.
That decision of 2022 was grounded in Sipo’s view that it had “no role and/or remit to consider either the lawfulness of the action or the extent of the powers of the office of Taoiseach”. There were two dissenters within Sipo: Comptroller and Auditor General Séamus McCarthy and Ombudsman Ger Deering.
Freedom of Information disclosures showed McCarthy warning of “credibility” issues for Sipo over its rejection of complaints against Varadkar. “A court order to reconsider rejection of a complaint would be appalling, and would compromise the credibility of any subsequent decision we made,” McCarthy wrote in 2022.
“A court order to stop an inquiry would at least explain why we had no power to pursue a complaint in this matter.”
The “appalling” outcome came to pass in the O’Donnell ruling, raising inevitable questions now about the credibility of the new decision in the case.
The outcome is the same: no investigation into Varadkar. But Sipo has changed the argument. Gone are questions over its role or capacity to consider the lawfulness of a taoiseach’s action or the powers of the office of taoiseach.
Instead, the new decision is predicated on whether the leak was a “disclosure in breach of a confidence” or a “disclosure for an improper purpose”. After considering the complaints afresh, Sipo found the leak was neither a breach of confidence nor a disclosure for improper objectives.
On the first point, Sipo said the sequence of events supports Varadkar’s “contention that he considered the agreement to have lost sensitivity, taking into account the announcement of the agreement by the Government and its approval at Cabinet”.
Varadkar’s position was that Ó Tuathail, as NAGP president, was a legitimate stakeholder such that disclosure to him “would not be contrary to the nature and extent of ‘confidentiality’ subsisting at the time”. Sipo said it did not find evidence to contradict that.
The watchdog said the only evidence “which might be interpreted as suggesting an ulterior purpose is that which is attributed to Mr Chay Bowes” in Village magazine. Bowes is a healthcare entrepreneur who was at the time working with the NAGP.
That evidence was limited to two points, Sipo said. First, Bowes’s recollection of conversations with Ó Tuathail in which Ó Tuathail was alleged to claim influence with Varadkar. Second was a text message from Ó Tuathail to Bowes attaching a photo of the contract in which Ó Tuathail stated: “To be fair. Leo always delivers.”
Sipo considered whether it should confirm that evidence directly with Bowes, but decided it was unnecessary.
“Even assuming the credibility and cogency of the evidence, the commission’s opinion is that the evidence does not tend to show an ulterior purpose on behalf of the respondent,” it said, referring to Varadkar.
“Taken at its highest, the commission is of the opinion that this evidence tends to demonstrate Dr Ó Tuathail’s subjective perception of his own influence with [Varadkar], but is not probative as to the respondent’s purpose at the time of disclosure.”
Varadkar has left Leinster House so Sipo’s latest move has no impact on his political fortunes.
But the case is still critical for Sipo itself. After a damaging loss of face in court, the big question now is whether this new decision holds.
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