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Dáil debate must focus on whether release of document was in public interest; and on criminality

In advance of the Dáil debate on Tánaiste Leo Varadkar’s now-admitted leak of a confidential document last year, Village wants to express a hope that the debate will be forensic, not the usual populist, adjective-heavy grandstanding, that may let a culprit off a lazily-cast hook.  To this end we suggest that TDs framing the debate about wrongdoing not criminality are wasting parliamentary time. It is to be hoped that the public and media can distinguish such speakers.

For the moment we want to address assertions a) that Mr Varadkar’s agenda was in the public interest and b) that his offence is minor – one of ‘less than best practice’ (!) –  not criminal.

The reason the public interest is important is because if the release were in the public interest it might exculpate Mr Varadkar under the Official Secrets Act which essentially excludes from its ambit Ministers acting, driven by the public interest (i.e. when they have a duty – and importantly not merely a power – to do so) but not otherwise.

So looking at the public interest, scandal-blower Chay Bowes has told Village that Matt O’Tuathail told him he had approached Varadkar to get him the draft document, as a favour to a friend. Not – as FG is spinning it – that Varadkar considered it would be in the public interest, and chose the President of the NAGP as the conduit. It has not been as clear as it could be that Varadkar and O’Tuathail were friends.

A major absurdity is that Mr Varadkar is claiming he leaked the document to facilitate agreement by the NAGP: “Mr Varadkar hoped to use Dr Ó’Tuathail’s influence to encourage all GPs to accept it”, as the Tánaiste’s Halloween statement has it -when the Village article shows it was received by his mate on the basis it would be used by the NAGP to undermine the IMO’s negotiating stance.  Village has copies of messages showing this.

As to the second point – criminality – the Act, let us be clear, applies to ‘people’, all people.  It is utterly wrong in law for the Tánaiste, supported by torpid commentators who have not taken legal advice, to say the Act does not apply to Ministers or then-Taoisigh.

The media are failing to do basic research about this – allowing Varadkar to bluster behind legal bluffs as in his windy Halloween statement.

The Official Secrets Act says at Section  4.—(1) “A person shall not communicate any official information to any other person UNLESS he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it”.

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The rule applies to PERSONS – all persons including Oireachtas members.  That is the central case. The EXCEPTION  to the rule is for holders of public office acting in a particular way not for public office holders per se. (and in any event Ministers and Taoisigh are excluded – so excluding Mr Varadkar from the exception not the rule).

The Tánaiste’s Halloween statement says “the ambit of the [Official Secrets] Act is limited to persons holding a public office”. It is to be hoped he will be asked today if he considers the Act does not apply to him as Tánaiste.

So, the Minister did not act in the public interest.  And he has committed a crime.  That is why the Village article was framed as “Leo, Law Breaker”. We hope these issues are properly explored in the debate.