Conflicting evidence and the Sipo schism opened up by Leo Varadkar’s leak defence

Tánaiste Leo Varadkar claimed vindication when the State’s ethics watchdog decided against calling an investigation into his leaking of a confidential draft GP contract to one of his medical friends.

The ruling split the Standards in Public Office Commission (Sipo), the first time in its 21-year history it ever lacked unanimity for a ruling. Now new information has come to light, revealing a schism in the commission as it grappled with complaints about Varadkar’s 2019 leak of the draft contract to Dr Maitiú Ó Tuathail when he was Taoiseach.

Only eight days before Varadkar resumes as Taoiseach, internal records show that his explanations cut no ice with two of the most senior independent officials in the State who serve as Sipo members.

Comptroller and Auditor General (C&AG) Seamus McCarthy and Ombudsman Ger Deering were never named as the dissenters. But files released under the Freedom of Information Act make clear their objections, casting doubt over the credibility of Varadkar’s justifications and questioning the very basis for Sipo’s decision not to initiate a preliminary inquiry.

Years after the Varadkar leak, there is still no end to this affair

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Conflicting evidence and the Sipo schism opened up by Leo Varadkar’s leak defence

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“Assertions by the respondent represent low-grade evidence at best, in a matter in which he has a significant interest,” McCarthy said in his analysis of Varadkar’s response.

[ Watchdog ignored objections of top officials to reject Varadkar leak inquiry ]

Deering said Varadkar never addressed his own “conflicting evidence”, adding that the Tánaiste was “not beyond the reach” of Sipo: “I am not satisfied that the respondent has conclusively addressed the queries put to him.”

In the event, however, McCarthy and Deering were outvoted by three other commissioners: chairman Garrett Sheehan, retired judge of the Court of Appeal; Peter Finnegan, clerk of the Dáil; and Martin Groves, clerk of the Seanad.

“It was the opinion of the Commission that the complaints made were legally misconceived, in circumstances where it is not the function of the Commission, nor within its remit, to determine the extent of the implicit executive functions of the office of the Taoiseach in the furtherance of the policy goals of the Government,” the ruling said.

The majority ruling was made without the sixth commissioner, former Fianna Fáil senator Geraldine Feeney, who recused herself from the Varadkar case because of a potential perception of a conflict of interest.

Feeney had worked previously for the National Association of General Practitioners (NAGP), the group Ó Tuathail led at the time of the leak. This was a rival body to the Irish Medical Organisation (IMO), which signed the draft contract in question.

Although Varadkar later apologised to the Dáil for the “inappropriate” leak, he claimed he gave Ó Tuathail the document because he wanted an agreement similar to the IMO deal with the NAGP.

One complaint to Sipo said the leak “speaks to a culture of insiders helping insiders, with confidential information provided to an individual as a result of his friendship with, and political support for, Mr Varadkar”.

Sipo had deferred consideration of complaints against Varadkar because of the Garda investigation into the leak.

When the Director of Public Prosecutions (DPP) decided in July not to take criminal charges it was a pivotal moment for Varadkar, removing a potential obstacle to his return as Taoiseach after Micheál Martin’s term.

But the ethics complaints – one from People Before Profit TD Paul Murphy – meant he still faced scrutiny under laws on the rules of conduct for elected officials.

The question for Sipo was whether it should initiate a preliminary inquiry into the affair, essentially a fact-finding exercise before deciding on a full-blown investigation.

Records show Sipo considered legal opinions from Felix McEnroy SC, Eoin McCullough SC and Aoife Drudy, commission head of legal services. It wrote to Varadkar on September 29th seeking views on document confidentiality, his powers as Taoiseach and “your motivation for sharing the document”.

[ GP contract leak came against backdrop of rivalry between medical bodies ]

Varadkar replied on October 3rd, enclosing his 2021 Garda statement and press and Dáil statements: “It is the full truth about what occurred and has stood up to the scrutiny of a thorough Garda investigation and that of the DPP.”

The document was “emphatically not” a contract, he insisted. Though watermarked “confidential and not for circulation”, it was no longer confidential because the IMO “announced” the deal and the HSE “launched” it. “I think it is noteworthy that in the course of the two years since this matter came to public attention, nobody has come forward to say that I breached their confidentiality,” Varadkar said.

“By definition, there is no higher authority than An Taoiseach, as Head of Government, from whom I could have sought permission or sanction to furnish a copy of the document to the recipient.”

The basis for any adverse finding under the Ethics Acts was not clear, the Tánaiste said. “I was clearly acting in my role as An Taoiseach and an officeholder in this matter rather than any other capacity.”

His arguments on confidentiality and other matters would be questioned in cutting terms by the C & and the Ombudsman when they objected to the decision not to call a preliminary inquiry..

In the majority view, however, evidence sufficient to sustain a complaint “was not and will not be available, even in circumstances where the disclosure of the agreement is not in dispute”.

This was more than enough for Varadkar to declare the affair closed: “I have been now cleared of criminal wrongdoing and any breach of ethics or standards. This is always the outcome I expected.”

But divisions in Sipo ran deep and very senior figures were not convinced, as is clear from the minutes of its decision meeting on the afternoon of Friday, October 21st.

“Commissioner McCarthy submitted a statement outlining the reasons for his objection and Commissioner Deering indicated he would supply a similar statement to the secretariat in due course.”

McCarthy’s statement, titled “Analysis of response from LV”, opened by saying code of conduct obligations on an incumbent taoiseach were “not acknowledged or addressed by the respondent”.

He added: “Respondent implies that any actions in his role as Taoiseach judged by him to be appropriate/in the public interest cannot be questioned. If the document was not confidential, then this argument does not need to be considered by the commission.

“If the document was confidential, then in effect, this argument is that the Taoiseach has the power at will, and without recourse to any process, to declassify a document at his discretion. If this were the case, then it would (in whole or in part) overturn the statutory obligation on the Taoiseach to observe the code of conduct.”

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.”

“Respondent accepts that the manner of the transfer was not appropriate. If the document was not confidential, then this would be a less important consideration, and would not merit a Commission inquiry. However, he states that it was provided ... on a confidential basis, and not for general circulation even within the NAGP. This indicates there was an awareness that the document in fact was confidential.”

Deering submitted his statement at 10.28pm on the Sunday after the meeting. While accepting the document was not a contract, questions remained. “This is not the end of the matter as it does not establish the nature and confidentiality of the document,” Deering wrote.

“In his response to Sipo the respondent said the document had ceased to be confidential at the point at which he provided a copy to [Ó Tuathail].

“This, in my view, is not supported by other of his statements and by documents in the public domain. Therefore, the respondent has not, in his response to Sipo, addressed to my satisfaction, whether or not the document was confidential when he gave it to [Ó Tuathail].

“In that regard, I note that in his Dáil Statement of 3 November 2020 the respondent stated, ‘It was a confidential document and one that I shared on a confidential basis.’”

[ The Irish Times view on the Leo Varadkar leak: lasting damage ]

Requests for the document from then health minister Simon Harris were refused after the leak. One Department of Health official said unilateral publication without IMO approval for the text would be a “serious” breach of trust.

“These records released under FOI suggest that the agreement was confidential, as they were part of very sensitive negotiations, so much so that the Minister for Health was not able to get a copy of it,” Deering said.

“Because of this conflicting evidence I am unable to come to a conclusion on the status of the confidentiality of the document at the time it was shared by the respondent based on the information/evidence currently available to me. As this conflicting evidence has not been addressed by the respondent I don’t propose to consider whether it was appropriate for the respondent to share it at the time he did.”

The decision stands. But in Varadkar’s last days as Tánaiste the affair lingers – as do questions over Sipo’s stewardship of complaints about the man returning to the most powerful political position of all.

The above PDF contains documents released by SIPO under the Freedom of Information Act as follows: 1. Minutes of SIPO meeting, October 21st, 2022, at which the decision was made not to conduct a preliminary inquiring into complaints against Mr Varadkar 2. Private statement on Varadkar case by SIPO commissioner Ger Deering, the Ombudsman 3. Letter to SIPO from Tánaiste Leo Varadkar 4. Private statement on Varadkar case by SIPO commissioner Seamus McCarthy, the Comptroller and Auditor General