Q&A: Why is the GP contract leak by Leo Varadkar back in the news?

A guide to where things stand as gardaí step up investigation into April 2019 incident

Why is Leo Varadkar’s leak back in the news?

The leaking of a confidential document by then taoiseach Leo Varadkar in April 2019 was white-hot political controversy before Christmas. But it fizzed out when Mr Varadkar, after an explanation and apology, survived a vote of confidence in the Dáil.

However, gardaí are investigating the leak following a complaint from Chay Bowes, the original source of the story in Village magazine on the leak. Last weekend, Sunday newspapers revealed that the investigation had progressed from being a preliminary exercise to a full investigation into whether Mr Varadkar had committed a crime. Senior officials, as well as former minister for health Simon Harris, have already given statements to gardaí.

Sinn Féin leader Mary Lou McDonald yesterday criticised the Taoiseach for his “arrogant” response to a letter she sent him requesting a meeting on the matter. Mr Martin said most of the letters Ms McDonald sent were “purely political” and tactical.

Has Varadkar been hauled in for questioning?

No. The Tánaiste has repeatedly said that he has not been contacted by gardaí, but that he is willing to meet them at any time. However, he said his statement would be much the same as the one he made in the Dáil last November on the leak, which involved the provision of a confidential copy of a proposed new GP contract to a friend.

What exactly are gardaí investigating?

Though Mr Varadkar has been accused by political opponents of breaching the Official Secrets Act, The Irish Times understands that gardaí are investigating whether Mr Varadkar breached section 7 of the Criminal Justice (Corruption Offences) Act, 2018.

This Act makes it a criminal offence to use “confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person”.

According to several lawyers who have examined the Act, it would be hard to conclude that Mr Varadkar’s actions fall foul of the Act. This is because it requires evidence that the Tánaiste was acting “corruptly”, defined by the Act as “acting with an improper purpose”.

According to Tom O’Malley, a lecturer in law at NUIG and a practising barrister, this requirement to have acted “corruptly” is key.

“From what is known publicly about the actions of Leo Varadkar in this matter, it seems unlikely that they would come within the definition of corruption as set out in the Act,” he told The Irish Times.

Several other practising lawyers agreed with this view. One senior counsel said: “There’s no advantage for Varadkar. There’s no quid pro quo.”

Another experienced senior counsel with a large practice at the criminal bar expressed a similar view, saying he would be “gobsmacked” if there was a prosecution. “Would every leak then be prosecuted?” he asked.

Village magazine, however, says it has received legal advice which would support a prosecution.

So what happens now?

Gardaí will complete their investigation in the coming weeks, and will interview Mr Varadkar under caution before sending a file to the DPP.

The DPP must then decide independently what to do. Legal sources say that to proceed with the prosecution, the DPP would have to be convinced that there is a real prospect of a conviction. If that happens, it is hard to see how Mr Varadkar could remain in office. Certainly, senior sources in his own party and others believe he would have to resign.

If there is no prosecution, is Mr Varadkar in the clear?

Yes and no. He will continue in Government and as leader of his party. But there is little doubt that he has been damaged and diminished by the episode. There is, says one source, a sense “of nervousness, of people looking for reassurance” in the party. And as other ministers have discovered, the judgments of politics can sometimes be rougher and more immediate than the judgments of the law.