The State’s ethics watchdog has said it will not investigate Tánaiste Leo Varadkar over the leaking of a draft GP contract after a split vote between commissioners deciding on an inquiry.
The Standards in Public Office Commission (Sipo) stated that there was not enough evidence to sustain the complaint because his action was carried out as part of his duties as taoiseach.
However, two of the five commissioners voted against the decision not to investigate.
Three complaints had been made to Sipo, including from People Before Profit TD Paul Murphy.
Mr Varadkar said: “I have been now cleared of criminal wrongdoing and any breach of ethics or standards. This is always the outcome I expected.”
While the possibility of Sipo investigating the Tánaiste was not seen as a major political risk to his planned resumption of the role of Taoiseach next month, a decision to investigate could have caused controversy around the handover — which the Government has now agreed will happen on December 17th.
A copy of the decision letter shows that Sipo believed there was not “evidence sufficient to sustain a complaint”.
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It emerged this summer that Mr Varadkar would not face criminal charges over the leaking of the contract.
Mr Varadkar previously apologised for “errors of judgment” after he admitted passing on the contract to Dr Maitiú Ó Tuathail between April 11th and 16th, 2019, on a confidential basis believing that it would be published in full imminently.
Outlining its decision in a letter to Mr Murphy, Sipo said once it received confirmation from the Garda that its investigation was concluded, the commission resumed its consideration of the complaints.
It examined the complaints in the context of two key pieces of legislation — the Ethics in Public Office Act 1995 and the Standards in Public Office Act 2001.
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The commission said it had received communication from Mr Varadkar in early October attaching a copy of the agreement and a copy of the statement provided by him to the Garda in September 2021.
“The commission noted the assertion by the respondent in his letter that the action taken by him, in relation to the disclosure of the agreement, was in his capacity and role as Taoiseach and head of Government, and was to further the policy goals of the government.”
Sipo engaged its own legal advice including from a senior counsel.
Split decision
On October 21st, 2022, a majority of Sipo commissioners decided not to investigate, with three commissioners in favour of the decision and two against.
Explaining the decision, Sipo said it was “required to consider whether it was appropriate to carry out an investigation under the 1995 Act. The commission carefully considered its legal advice and all the evidence before it, including the acceptance by the respondent that he did disclose the agreement but that it was done pursuant to the functions of the office of the Taoiseach and in furtherance of the policy goals of the government.
“In such circumstances, where the commission is of the view that it has no role and/or remit to consider either the lawfulness of the action or the extent of the powers of the office of Taoiseach, it is the opinion of the commission that evidence sufficient to sustain a complaint is not and will not be available, even in circumstances where the disclosure of the agreement is not in dispute.”
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Responding to the decision, Mr Murphy said: “It’s very unfortunate that Sipo has decided not to investigate further the clear breaches of the ethics legislation by Leo Varadkar.” The TD expressed concern that it “creates a precedent” for breaches by future taoisigh.
There are six commissioners with Sipo: Garrett Sheehan, Seamus McCarthy, Ger Deering, Peter Finnegan, Martin Groves and Geraldine Feeney.
Ms Feeney recused herself from consideration of the complaints on the grounds of a potential perception of a conflict of interest on the basis of her prior professional work with the National Association of General Practitioners.
“This commissioner took no further part in consideration of the complaints,” said Sipo.
