Murphy’s Law - Village Magazine

In fact the codes do not

mention the ulteriorness

of motives or whether

requirements for

conﬁ dentiality conform to

government policy goals

n November 2020, TD Paul Murphy

lodged a complaint with the Standards in

Public Office Commission (SIPO)

concerning then-Taoiseach Leo Varadkar.

It concerned his 2019 disclosure of the

heads of terms of a confidential draft

agreement between the government and the

Irish Medical Organisation (IMO) to Dr. Maitiú

Ó Tuathail, then-president of the National

Association of General Practitioners (NAGP), a

rival doctors’ representative organisation that

is now defunct.

Complaint

Murphy’s complaint centred on breaches of

two codes.

“Section 1.5 of the ‘Code of Conduct for

Office Holders’, entitled ‘Highest ethical

standards to be applied at all times’, states:

’Oﬃ ce holders in particular should ... respect

conﬁ dences entrusted to them in the course of

their oﬃ cial duties’.

And the ‘Code of Conduct for Members of

Dail Eireann and Seanad Eireann· states at

point 10: ‘Members must not use oﬃ cial

information which is not in the public domain,

or information obtained in conﬁ dence in the

course of their oﬃ cial duties, for personal gain

or the personal gain of others’”.

SIPO’s iniil response:

In November 2022, SIPO declared it was

declining even to investigate the complaint,

stating it was beyond its remit to assess the

Taoiseach’s executive functions, t and not even

publishing a decision.

Additionally, SIPO expressed concerns

about obtaining suﬃ cient evidence to proceed

with an investigation.

SIPO’s inernl deliberions

Documents obtained by the Irish Times under

the Freedom of Information Act revealed

internal discussions within SIPO during its

decision-making process. Notably, Seamus

McCarthy, the Comptroller and Auditor

General, expressed concerns about the

potential impact on SIPO’s credibility if it chose

not to investigate the complaint: “Would our

arguments be enough to satisfy a judge in a

judicial review proceeding (whichever way we

go)? A court order to reconsider rejection of a

complaint would be appalling, and would

compromise the credibility of any subsequent

decision we made”.

Ombudsman Ger Deering also dissented

though his reasoning was redacted under

Freedom of Information legislation.

Successful judicil review

Dissatisﬁ ed with SIPO’s decision, Paul Murphy

sought a judicial review. In June 2024, the High

Court ruled in Murphy’s favour, quashing

SIPO’s decision not to investigate.

Judge Barry O’Donnell found: “Prima facie,

the deﬁ nition of functions provided by the

Oireachtas has every appearance of placing

the functions of the [former Taoiseach] as a

member of the government within the remit of

the Commission”.

He ruled that SIPO had failed to provide

adequate reasons for not investigating.

Judge O’Donnell determined that “it is clear

that in parallel with the general administrative

law requirement for reasons to be given for a

decision, in the case of the [Ethics] Acts, the

Oireachtas expressly requires the Commission

to explain its decisions in writing. This can be

taken as a reﬂ ection of the public interest

considerations engaged by the Commission’s

work”.

He noted that SIPO had not clearly

articulated why the matter fell outside its

jurisdiction. There was a “diﬃ culty insofar as

there is a potential tension between, on the

one hand, ﬁ nding that the complaint was

outside the remit of the Commission — which

suggests a conclusion that the matter was

simply inadmissible — and, on the other hand,

a decision that there would not be suﬃ cient

evidence to permit the Commission to carry out

the investigation”.

The court remitted the case to SIPO.

SIPO’s second refusl o

invesige

Following the High Court’s directive, SIPO

revisited the original complaint. However, in

December 2024, the commission again

decided against launching a formal

investigation into Varadkar’s actions.

SIPO stated: “The commission has become

of the opinion that there is not suﬃ cient

evidence to establish a prima facie case that

disclosure of the agreement to Dr Ó Tuathail,

given his capacity as president of the NAGP,

was contrary to the nature and extent of the

confidentiality subsisting at the time of

disclosure”.

“In addition, even if there was evidence to

establish that the agreement was suﬃ ciently

sensitive that it ought not to be disclosed, the

commission has become of the opinion that

there is not suﬃ cient evidence to establish a

prima facie case that [Mr Varadkar] knew of

such sensitivity”.

SIPO went on to say the “evidence does not

tend to show an ulterior purpose” on behalf of

the then taoiseach. SIPO, it said, “has not

identiﬁ ed prima facie evidence which would

contradict Mr Varadkar’s position that his

government had made commitments to

engage the NAGP and that he was seeking to

advance government policy goals”.

The legislation and codes do not mention

the ulteriorness of motives or whether

breaches of the Oﬃ cial Secrets Act and

requirements for conﬁ dentiality (which that

Act says may arise simply because a document

is “stated” to be conﬁ dential) conform to

government policy goals.

The Codes cited by Murphy instead refer to

“respecting entrusted conﬁ dences” and “not

providing personal gains to others”. As Village

went to print, the deadline for judicially

reviewing Sipo’s second decision passed.

The ‘Leo the leak’ aﬀ air, generated by an

article in Village magazine, was a bump in Leo

Varadkar’s political career that triggered a

Garda investigation, although the DPP ruled

against criminal charges. He announced his

resignation as Taoiseach and leader of Fine

Gael in March 2024 and is now apparently

involved in a PR agency called Draoigorm Ltd,

and giving lectures in Harvard University,

while preparing ﬁ nal drafts of his memoirs.

Murphy’s Lw

SIPO seems to be ﬂ oundering to ﬁ nd reasons

to refuse even to consider complaints

against former Taoiseach Leo Varadkar

By Michel Smih

April-May 2025 15

NEWS