Watchdog ignored objections of top officials to reject Varadkar leak inquiry

The public ethics watchdog spurned two of the State’s most senior independent officials when it dismissed demands for an inquiry into Leo Varadkar’s leak of a draft medical contract during his first term as taoiseach, The Irish Times has learned.

In private statements questioning how the Tánaiste defended leaking the document to a doctor friend, Comptroller and Auditor General (C&AG) Seamus McCarthy and Ombudsman Ger Deering dissented from the decision of the Standards in Public Office Commission (Sipo) to refuse a preliminary inquiry into the affair.

[ Arthur Beesley's analysis: Conflicting evidence and the Sipo schism opened up by Leo Varadkar’s leak defence ]

Mr McCarthy made a note saying some of Mr Varadkar’s assertions “represent low grade evidence at best” and Mr Deering said the Tánaiste’s claims that the document was no longer confidential were not supported by his own statements or public records.

The C&AG and Ombudsman were outvoted by three Sipo commissioners in October when they ruled against an inquiry: the chairman Garrett Sheehan, a retired Court of Appeal judge; Peter Finnegan, clerk of the Dáil; and Martin Groves, clerk of the Seanad.

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Mr Varadkar said that split decision cleared him of “any breach of ethics or standards”. But internal files released under the Freedom of Information Act show Mr McCarthy and Mr Deering wanted their objections noted.

The disclosures come eight days before Mr Varadkar starts his second term as taoiseach, at a time when he had hoped to have put the leak affair behind him.

After long Garda investigation, the Director of Public Prosecutions decided in July that the Tánaiste should not face criminal charges.

Still, Sipo examined the case under ethics law after receiving three complaints about the leak. The majority ruled against a preliminary investigation on the basis that Sipo had no remit to consider either the lawfulness of Mr Varadkar’s action or the extent of the powers of the office of taoiseach.

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

In his statement, however, Mr McCarthy said Mr Varadkar implied that “any actions in his role as taoiseach” that he judged appropriate or in the public interest could not be questioned.

“Respondent argues that, at the stage he acted, there was no reason for the document to be treated as confidential, since so much of the detail was already in the public domain, and publication was imminent. Assertions by the respondent represent low grade evidence at best, in a matter in which he has a significant interest.”

He also said it was “not relevant” to assert no one had made representations saying expectations of confidentiality were breached or that no harm had been done to anyone’s interests.

Mr Deering argued Mr Varadkar was “not beyond the reach of Sipo”, saying the complaints should proceed to a preliminary inquiry. Such an inquiry is a fact-finding exercise before deciding whether there should be a full inquiry

Mr Sheehan sent an email to a Sipo official the day after Mr Deering’s statement: “Can you please also forward to me a copy of what Seamus McCarthy handed in to you on Friday. Would you please also remind me what Ger Deering has tried to do.”

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