And there was a lie in the Dáil. By Michael Smith. Factual Background to Alleged Crimes WhatsApp correspondence headlined ‘Leo Always Delivers’ first published in the Village Magazine of November 2020 showed then-Taoiseach Leo Varadkar transferred a confidential draft contract being negotiated between government and the Irish Medical Organisation to a friend of his, the President of a rival doctors’ representative organisation, the National Association of GPs (NAGP) in April 2019. That friend was Dr Maitiú (Matt) O Tuathail. This transfer constitutes a crime under the Official Secrets Act 1963 and perhaps under the Criminal Justice (Corruption Offences) Act 2018. This has been disputed by Leo Varadkar, currently Tánaiste, but this piece shows how. “The leak constitutes a crime under the Official Secrets Act 1963 and perhaps under the Criminal Justice (Corruption Offences) Act 2018. This has been disputed by Leo Varadkar, currently Tánaiste, but this piece shows how” IMO and NAGP Rivalry The IMO is an established representative organisation for all types of doctors. It underwent a scandal in 2013 and a more dynamic, younger, radical, harder-line but much smaller new organisation, the National Association of General Practitioners (NAGP), was established in 2013 to rival it. The insurgent but fragile NAGP needed to poach members from the bigger IMO so it could survive, to generate money to pay salaries and avoid collapse which it particularly needed to avoid because the NAGP was very badly, perhaps criminally badly, run; and collapse might – and did – precipitate wholesale enquiries including into governance that just might implicate some of its leaders, though not O Tuathail, in criminality. In March 2018 the association’s incoming president Dr Yvonne Williams had resigned along with five other council members. It was subsequently reported that Williams and others had had concerns about possible governance issues within the group, and members had become increasingly frustrated as questions went unanswered. Williams was replaced by O Tuathail who eventually called in Chay Bowes, a healthcare entrepreneur, to do a report on the NAGP which led to an ongoing criminal investigation and the liquidation of the NAGP in June 2019 with debts of almost €400,000 and no cash available to pay creditors. Village understands prosecution of some leading members of the NAGP, though not O Tuathail, may be announced shortly. When he took over as President of the NAGP, O Tuathail and everyone else in the NAGP was investing a lot of political capital in generating hostility to the IMO. It took a hard line with government to contradistinguish itself from its namby-pamby rivals. In particular the NAGP took advantage of the fact the IMO was negotiating the deal on GPs’ conditions that would affect both IMO and NAGP members, to foment fractiousness. By early 2019 the NAGP was undermining the IMO, calling press conferences to deprecate the terms the IMO was reportedly agreeing. That is the background to this story and the infamous leak. Transfer of Confidential Draft Contract Then-Taoiseach, Leo Varadkar, provided a copy of the draft (it was subsequently amended 30 times) contract, stated to be confidential, to Matt O Tuathail. Varadkar did this, he considers, between 11 and 16 April 2019. The Tánaiste told the Dáil in November that he did this to sow harmony between the rival groups but there is absolutely no evidence of it. On the contrary there is a great deal of evidence to the contrary. This takes two forms considered in detail below 1) that the motivation for the transfer was a favour to a friend and 2) that the transfer was seen as hoping to sow the opposite of harmony. The Law: 1. The Official Secrets Act The Official Secrets Act 1963 provides in Section 4: 1: a person shall not communicate any official information [defined as any…document or information which is secret or confidential or is expressed to be either and which is or has been in the possession, custody or control of a holder of a public office, or to which he has had access by virtue of his office] 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. Let’s go through this methodically. It is clear from the pervasive watermark – that this document is “expressed” to be confidential – so definitively satisfying the Act; furthermore the document was treated as confidential by the beneficiaries of its leaking. It was clearly in Varadkar’s “control” as he has written on it and asked for O Tuathail’s address with a view to forwarding it. Recklessness on the Law? As to whether the leak was effected in ignorance of the law, that is no excuse (the legal maxim is ignorantia juris neminem excusat). But in any event Varadkar knows what the law is on handling confidential communications. This is shown by the following WhatsApp exchange on an entirely different matter involving him from 2017 which was forwarded to Village magazine: Varadkar told RTÉ’s Prime Time on 16 February that his legal advice was that he has not committed a crime. He continues to repeat the mantra at every turn. Suggesting recklessness and a willingness to break the law – albeit he claims he did not think it was the law – Varadkar has stated that the Official Secrets Act does not apply to him. An official statement by Fine Gael on his behalf after the Village story broke in November 2020 stated: “In circumstances where extraordinarily inaccurate claims have been made by Village Magazine, it is necessary to briefly summarise where they fall into significant legal error.A: Village Magazine is manifestly wrong insofar as it claims that the Tánaiste breached the Official Secrets Acts, 1963 for the following reasons: 1. The ambit of that Act is limited to persons holding a “public office” which is a term defined by Section 2
