The High Court has reserved its decision on a challenge by TD Paul Murphy to the refusal of the Standards in Public Office Commission (SIPO) to investigate a claim that Taoiseach Leo Varadkar leaked a GP contract document to a friend.
The People before Profit TD wants the court to quash SIPO’s decision in November 2022 not to carry out an inquiry into the matter.
Mr Murphy complained to SIPO in November 2020 that Mr Varadkar had provided a confidential copy of a proposed GP contract agreement reached between the Department of Health, the HSE and the Irish Medical Organisation, to a friend, Dr Maitiu Ó Tuathail, who was president of the rival National Association of General Practitioners.
Dr Ó Tuathail’s organisation was not a party to the negotiations.
Mr Murphy said the document was confidential and had not been released publicly.
Lawyers for Mr Murphy argued that SIPO had not given adequate reasons for refusing to hold an inquiry into the matter.
Senior Counsel, Feichin McDonagh told the High Court that SIPO had said holding an inquiry would be an interference with the implied executive functions of the Taoiseach.
But Mr McDonagh said SIPO had not outlined what functions of the Taoiseach would be affected.
Mr McDonagh said there was nothing to preclude SIPO investigating the matter and appointing an inquiry officer to gather preliminary evidence.
He said SIPO was a quasi-judicial body and could not “in advance decide that the potato is too hot to handle”.
Mr McDonagh said SIPO must “handle the potato” and if they overstep the mark, then the decision could be judicially reviewed by the High Court.
Lawyers for SIPO said the complaint against Mr Varadkar did not come “anywhere near” the type of breach of duty which would warrant an investigation by the Commission.
Senior Counsel Michael Collins said the complaint was so bound up in the normal process of day to day government that it was “simply not part” of SIPO’s remit to investigate without risking interfering with the furtherance of government policy.
It could not be part of SIPO’s function, he said, to investigate that or hold people to account for it.
It may be a fine line in some circumstances, Mr Collins added, but in this case the line was clear.
He said the Commission was correct that it was not within its functions to investigate this matter.
Mr Collins said Mr Varadkar had responded to SIPO’s preliminary questioning.
He also gave public statements that he had shared the contract with Dr Ó Tuathail to encourage support of its terms among GPs, something that was “in furtherance of public policy”.
Mr Varadkar also denied the document was confidential by the time he passed it to Dr Ó Tuathail.
Mr Collins denied that SIPO did not give adequate reasons for not investigating the complaint and he said Mr Murphy was also fully aware of the public background behind its reasons.
The Court also heard submissions from lawyers representing Ireland and the Attorney General.
Senior Counsel, Andrew Fitzpatrick said it was not for SIPO to decide on the limits of the executive functions of the Taoiseach.
The court was told Mr Varadkar was a notice party but had not played an active role in the case.
