A High Court judge wants legal points clarified before he permits a People Before Profit TD to pursue his challenge to the Standards in Public Office Commission’s (Sipo’s) refusal to investigate a claim Taoiseach Leo Varadkar leaked a draft GP contract.
Mr Justice Charles Meenan on Monday pointed to the preliminary nature of Sipo’s decision not to conduct a preliminary inquiry into the alleged April 2019 conduct.
There is a considerable amount of case law saying that usual features of fair procedure rules do not apply to the same extent at a preliminary stage, the judge said.
Among Dublin South-West deputy Paul Murphy’s grounds of challenge is a claim his right to fair procedures and natural and constitutional justice was breached by Sipo’s decision.
Mr Justice Meenan said he wants Mr Murphy’s legal team to address the “fundamental point” of whether aspects of fair procedure norms apply at the preliminary stage.
The judge adjourned Mr Murphy’s leave application to allow this issue to be addressed.
The application seeking leave of the court to bring the legal challenge came before the judge while only Mr Murphy was legally represented.
Mr Murphy’s counsel, Derek Shortall SC, instructed by Ruadhán MacAodháin of Prospect Law solicitors, said the case raises “very serious issues” relating to the jurisdiction of the public ethics watchdog.
The TD wants to bring his action against Sipo, Ireland and the Attorney General.
He is seeking, among other reliefs, an order quashing Sipo’s decision of last November 9th refusing to carry out an inquiry into the matter under section 23 of the Ethics in Public Office Act 1995.
Mr Murphy made a complaint to Sipo in November 2020 alleging Mr Varadkar provided a confidential copy of a proposed GP contract agreement in April 2019 to his then friend, Dr Maitiú Ó Tuathail, who was president of the now defunct 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 was a rival to the IMO and was not a party to the negotiations.
Following publicity about the leak, Mr Varadkar denied the document was confidential by the time he passed it on to Dr Ó Tuathail.
He also said he provided it in his capacity as head of government to encourage a broader acceptance of its terms among the GP community. There was no personal advantage for himself, he said.
An Garda Siochána investigated the leak, and the Director of Public Prosecutions last July directed that no criminal charges would be brought in the case.
Sipo sought information from Mr Varadkar to consider Mr Murphy’s complaint on a preliminary basis. Last October the commission’s members voted by 3:2 against carrying out further investigation.
In his court action, Mr Murphy argues Sipo reached its decision in a manner that breached fair procedures and due process.
It also erred in failing to grant him 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 alleges.
