The High Court is being asked to quash a refusal of the Standards in Public Office (Sipo) Commission to carry out an investigation into allegations that Taoiseach Leo Varadkar leaked a confidential GP contract document to a friend.
People Before Profit-Solidarity TD Paul Murphy is seeking to bring the challenge against Sipo, Ireland and the Attorney General.
On Tuesday, Ms Justice Siobhan Stack deemed as open Mr Murphy's application to seek permission to bring judicial review proceedings against Sipo for the purpose of ensuring the challenge was brought within the three-month legal time limit from when the disputed decision was taken.
Gary Maloney BL, instructed by Ruahán MacAodháin of Prospect Law solicitors, said the three-month deadline was due to expire on Thursday.
Counsel, on an ex parte basis with on the Murphy side represented, asked the court to open the matter and adjourn it back into the judicial review list. The judge agreed to do so and adjourned it to April.
In his challenge, Mr Murphy is seeking a number of reliefs, including an order quashing the November 9th, 2022 decision of Sipo not to carry out an investigation under Section 23 of the Ethics in Public Office Act 1995.
He also seeks a declaration the Sipo's decision was determined in a manner which breached Mr Murphy's right to fair procedures and natural and constitutional justice. He further seeks an order remitting the matter back to Sipo for reconsideration.
Mr Murphy made a complaint in November 2020 to Sipo that Mr Varadkar, then Tanáiste, now Taoiseach, provided a copy of the confidential proposed GP's contract agreement in April 2019 to Dr Maitiú Ó Tuathail, president of the National Association of General Practitioners (NAGP).
The agreement had been negotiated between the Department of Health, the HSE, and the Irish Medical Organisation (IMO). Dr Ó Tuathail’s NAGP is a rival to the IMO and was not party to the negotiations.
Mr Murphy says the document was confidential and had not been released publicly.
Denied confidentiality
Mr Varadkar, following publicity about the alleged leak, denied it was confidential by the time he passed it on to Dr Ó'Tuathail.
He also said he provided the document in his capacity as head of government to encourage a broader acceptance of its terms among the GP community. He also said there was no personal advantage for himself.
Mr Murphy's complaint disputed Mr Varadkar's characterisation of his conduct.
He said the agreement had not been made public, had been labelled “confidential” on its face and in text messages sent about it. The final agreement was not published until May 17th, 2019, a month after Mr Varadkar had passed it on, he said.
He further claimed Dr Ó Tuathail, personally, and the NAGP generally, stood to gain an advantage from having access to this document.
There followed a garda investigation into the alleged leak and last July, the DPP directed no criminal charges were to be brought against Mr Varadkar over the allegations.
Sipo then sought information from Mr Varadkar for the purpose of making a preliminary consideration of Mr Murphy's complaint.
Last November, the members of the Sipo commission voted by three to two against carrying out further investigation, Mr Murphy said. Sipo comprises a retired High Court judge, the Comptroller and Auditor General, the Ombudsman, the Clerks of the Dáil and the Seanad and an ordinary member,
Sipo said it had regard to matters including the specific allegations, documents submitted by Mr Varadkar, the provisions of the Ethics in Public Office Act 1995 and the implied executive functions of the office of Taoiseach. Sipo also took into account its own legal advice.
Mr Murphy argues, among other things, the manner in which the Sipo decision was reached was in breach of fair procedures and due process.
It also erred in failing to grant Mr Murphy an opportunity to address the legal questions raised and in failing to hold an oral hearing prior to reaching a determination on the scope of its statutory remit and functions, he claims.
