Sipo cannot decide if complaint against Taoiseach 'is too hot to handle', court told
Paul Murphy arriving at at the Four Courts in Dublin on Tuesday morning. His counsel told the court that Sipo cannot decide if a 'potato is too hot to handle' before handling it. Picture: Collins Courts
The High Court has been urged to consider what the Standards in Public Office Commission (Sipo) “would have had to get into” if it was to further investigate a complaint by TD Paul Murphy over the Taoiseach’s sharing of a draft GP contract.
Senior counsel for the commission, Michael M Collins, told the court the complaint was “so bound up” in the constitutional exercises of the Taoiseach that it was “simply not part” of Sipo’s remit to investigate without risking interfering with the furtherance of government policy.
He said Leo Varadkar responded to Sipo’s preliminary questioning and gave public statements contending that he shared the draft contract in 2019 with Dr Maitiú Ó Tuathail as president of the National Association of General Practitioners (NAGP) in a bid to encourage support of its terms among GPs in furtherance of public policy.
Mr Varadkar denied the document was confidential by the time he passed it to Dr Ó Tuathail.
The commission correctly concluded Mr Murphy’s complaint related to matters not within its functions, said Mr Collins, with David Fennelly BL. The issue was so intricately part of the normal process of day-to-day government, and it cannot be part of Sipo’s function to investigate or hold people to account for that, he added.
Adequate reasons were given for not investigating the complaint, but Mr Murphy was also “fully aware” of the public background supporting the reasoning, Mr Collins added.
The People Before Profit TD’s case against Sipo, Ireland and the Attorney General was heard in its entirety on Tuesday. Mr Justice Barry O’Donnell reserved his decision.
The deputy seeks an order quashing the commission’s decision from November 2022 refusing to carry out an inquiry into the matter under section 23 of the Ethics in Public Office Act of 1995. He is asking the court to remit his complaint for fresh consideration by the commission.
His senior counsel, Feichín McDonagh, instructed by Prospect Law, told the court Sipo’s reasoning for rejecting the complaint is “legally inadequate” and “does not pass muster”. The commission seems to be suggesting that “even investigating” would be in breach of the Constitution, said Mr McDonagh, appearing with Gary Moloney BL.
The administrative body cannot decide the “potato is too hot to handle” before handling it. It must handle the potato and then the decision can be judicially reviewed by the High Court, he said.
In considering a complaint, he said, Sipo should examine whether a representative has carried out the proper functions of his or her office and whether public confidence has been maintained.
Mr Murphy’s second ground of challenge alleges Sipo fundamentally misunderstood the statutory framework under which it is operating and the procedures it should follow.
Here, Sipo did not appoint an inquiry officer to gather preliminary evidence as required, Mr McDonagh submitted.
Mr Collins said there is “no basis” for contending Sipo was obligated to appoint an inquiry officer. The word “may” in section 4(4) of the 2001 Standards in Public Office Act “clearly” signals the commission has discretion in deciding whether to appoint an inquiry officer.
The officer can advise on the level of evidence available, but it is still for the commission to decide if there is a prima facie case to permit it to proceed to investigate, he said.
The court also heard from Andrew Fitzpatrick SC, with Niall Ó hUiginn BL, for Ireland and the Attorney General. He outlined the statutory functions of the office of the Taoiseach and said the facts of the case do not support the court intervening with Sipo’s decision.
Mr Varadkar was a notice party but, the court heard, he has not played an active role in the case.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
