The High Court has quashed the Standards in Public Office Commission’s decision not to investigate a complaint about former Taoiseach Leo Varadkar’s disclosure of a confidential agreement, finding that the Commission had not adequately explained its reasoning. The matter was remitted to the Commission for further consideration.
The judgment, delivered by Mr Justice Barry O’Donnell on 21 June 2024, arose from a complaint by TD Paul Murphy. The complaint concerned Varadkar’s provision, between 11 and 16 April 2019, of a copy of an agreement negotiated by the Department of Health, the HSE and the Irish Medical Organisation to the then president of the National Association of General Practitioners. The NAGP was not a party to the negotiations.
Varadkar accepted in a public statement that he had provided the agreement, saying he did so as Taoiseach and head of Government to encourage acceptance of its terms among GPs. The Commission’s November 2022 report recorded that he maintained the disclosure was made in furtherance of Government policy. The judgment records that the Commission treated the complaints collectively as alleging a “specified act” under the Standards in Public Office Act 2001. It did not investigate allegations of criminal wrongdoing, saying that was outside its function.
By three votes to two, the Commission decided not to appoint an inquiry officer and not to investigate under the Ethics in Public Office Act 1995. It reasoned that deciding whether the disclosure was a specified act would require it to determine the extent of the Taoiseach’s implicit executive functions, a matter it considered outside its remit. It then concluded that evidence sufficient to sustain the complaint would not be available.
Justice O’Donnell held that the Commission had adequately explained why it did not appoint an inquiry officer. He also rejected Murphy’s argument that the law required the Commission to appoint one where it had not found the complaint frivolous or vexatious. The legislation gave the Commission discretion to use an inquiry officer.
But the court found the reasons for refusing an investigation inadequate. The report did not explain the legal basis for excluding the matter from the Commission’s remit, or how that conclusion connected to its finding under section 23(1C) that sufficient evidence would not be available. The court said it could not fill in gaps in the report using materials that had not been provided to the complainant or made available to the public.
The court did not decide the ultimate question of how the Commission should handle complaints involving executive powers. It quashed the 9 November 2022 decision not to investigate and ordered the matter back to the Commission for further consideration. The judge expressed a preliminary view that Murphy should receive his costs and listed the case for 28 June 2024 to address final orders and any contested costs issue.