Ongoing Garda investigation threatens Varadkar’s return as taoiseach

Later this year, on December 15th, Leo Varadkar will become taoiseach for the second time. Under the agreement between the three Coalition parties, Micheál Martin will step down and the leader of Fine Gael will assume the office of taoiseach for the remainder of the Government's life – two and a bit years, if it runs its course.

But it might not be as straightforward as that. There is a significant uncertainty hanging over Varadkar’s expected accession for the second time to the leadership of the country. The Garda investigation into his leaking of a document to a friend in April 2019 is ongoing, and it could yet result in charges being brought against him.

After a story in Village magazine, Varadkar told the Dáil in November 2020 that he had in April 2019 given a copy of an agreement between the State and the Irish Medical Organisation to Maitiú Ó Túathail, then president of a rival GP organisation, the National Association of General Practitioners.

Varadkar apologised for what he described as an error of judgment and survived a vote of no confidence in the Dáil.

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That was not, however, the end of it. Not by a long shot. An investigation by the Garda National Bureau of Criminal Investigation was initiated following a complaint from Chay Bowes, the original source of the story in Village magazine. Bowes had been close to Ó Túathail, and kept copies of boastful messages from the latter about his relationship with Varadkar.

As part of the investigation, officers obtained statements from senior officials, former minister for health Simon Harris and they also interviewed the Tánaiste last April.

One lawyer speculates '[the Garda] must have found something' – but unless a conviction is likely, there will be no prosecution

The investigation will determine the facts surrounding the incident and gather evidence for a file to be sent to the Director of Public Prosecutions (DPP). It is for the DPP to decide whether or not any laws may have been broken and whether or not to bring criminal charges.

Three things can be said about this prospect. One is that the broad consensus in both the political and legal worlds is that a prosecution seems very unlikely. Lawyers who have looked at the corruption legislation and the facts of the Varadkar case – those that are in the public domain, anyway – say that they cannot see how a conviction is remotely likely. One lawyer speculates “they must have found something” – but unless a conviction is likely, there will be no prosecution.

The second is that if these expectations are confounded and a prosecution does proceed, Varadkar can almost certainly forget about becoming taoiseach again. Although he would almost certainly protest his innocence – and legally, of course, he would be innocent until proven guilty – it’s hard to see how he could avoid resigning as party leader and a minister. “If he’s charged, he’s gone,” says one person familiar with the hushed discussions on the subject that are becoming more common in the senior ranks of Fine Gael.

The third thing to say is that the timing, as well as the outcome, of the affair is now becoming an issue for Varadkar, and therefore for the Government.

Sources with some knowledge of the affair expect the investigation to wrap up shortly. But we've heard that before. And even if the investigation is concluded and a file sent to the DPP, there is no guarantee – at all – that a decision on a prosecution will be made quickly. The DPP is presumably aware of the politics, but Catherine Pierse is also rigorously independent. The law runs on rules and procedures, facts and precedents, not on the shifting exigencies of politics.

Why does the timing question matter? Go back to the timetable – on December 15th, Varadkar is due to become taoiseach. But sources in his own party concede that if the matter is not finalised by that time, it will be a significant barrier to his accession. Sources in Fianna Fáil are less circumspect: "It'll be a big issue if it's not concluded by next December," says one TD. Would Fianna Fáil TDs vote for Varadkar if he remains under investigation?

In a lot of legislation dealing with public life and things like corruption, it's not enough to prove a person did a certain thing. You have to prove they did it corruptly

And while December 15th is D-Day on those decisions, the political reality is that by the summer, the issue of the changeover of the taoiseach’s office – the preparations in Fine Gael, the potential reshuffle, what it means for the leadership of Fianna Fáil – will be a live political issue. Uncertainty over Varadkar’s fate will mean political uncertainty.

And so, increasingly, it is the delay in concluding the investigation that is the focus of political attention.

But Garda sources who spoke to The Irish Times said there was nothing unusual about the length of time the inquiry was taking, especially considering the nature of the case and the allegation made against Varadkar. They also cautioned against reading anything into the passage of time, saying it could not be interpreted as a sign charges were less or more likely.

“You have to look at a few aspects around how this document was shared. It’s not only about whether it was shared or not, which [Varadkar] has already confirmed,” said one source. “You have to determine the legal standing of this document and what that standing was based on. Was it secret under law? And then it’s about whether people gained by the sharing of this document; who gained, how did they gain, did Varadkar gain?”

Another source agreed, saying: “You have a cohort of people and they want it to be nice and simple; ‘He shared it with his buddy who needed it for his job, case closed’. But if it was that simple this would all be over long before now. The DPP will decide if this was a crime, not people on Twitter.

“In a case like this you are drilling into people’s precise motives for doing things. In a lot of legislation dealing with public life and things like corruption, it’s not enough to prove a person did a certain thing. You have to prove they did it corruptly. That’s not impossible, it can definitely be done. But it’s a challenge.”

There's pressure on this investigation team. They know everything they are doing now will probably be pored over down the road

Another source said it was likely complaints would be made to the Garda Síochána Ombudsman Commission about the quality of the investigation after it was completed. They believed complaints would be made whether Varadkar was charged with a criminal offence or not.

“There’s pressure on this investigation team. They know everything they are doing now will probably be pored over down the road. And when this is over, it’s important that nobody can come forward and say, ‘Well, I had information to share and nobody ever interviewed me’. So everything they do now has to be perfect. And they are also investigating the Tánaiste, a person who will probably be the taoiseach again. That’s pressure in itself.”

According to one senior criminal barrister, “These type of investigations relating to public affairs often involve complex legal issues, they can take on a life of their own and I’m not surprised that it’s not completed yet.

“We’ve seen what can happen when gardaí are under pressure to get a result. The priority is that it is done properly, if that means it is slow, so be it. In a high-profile investigation like this, I’d expect a meticulous investigation with every lead followed.”

When the investigation is concluded, the gardaí will do one of three things: they will send a file to the DPP with a recommendation to prosecute, a recommendation not to prosecute – or no recommendation at all.

This is what many people in law and politics who spoke this week on condition of anonymity expect to happen. In this case, the DPP will assess the chances of successful prosecution and make her decision accordingly. But here again, sources warn of possible delays.

“When something gets to the DPP, that can also take a long, long time to get a decision,” said one source. “The DPP can come back to [gardaí] with questions querying certain parts of the file, looking for more information on aspects of it, all that. A file can be with the DPP for months and months. That can be very frustrating. The DPP needs to be certain there’s grounds for charging a person and also a very good chance the evidence is strong enough to get a conviction. They won’t just throw a case at the courts and let the court decide. Unless it looks pretty much certain a person will be convicted, the DPP doesn’t press charges, especially in serious cases that take up a lot of court time.”

In cases where evidence from witnesses is important to the prosecution, the likely performance of a witness during proceedings in court can significantly influence the DPP’s decision to press charges or not. Security sources said some of those interviewed as witnesses in the Varadkar investigation, and who might be called as witnesses during a court case if he is charged, had repeatedly made very negative public comments about him on social media. They believed those negative comments, especially the sheer volume of them, may be a cause for concern for the DPP.

“If you’ve gone on Twitter and made comment after comment about him and his party and it’s all negative, it’s easy for a defence barrister to pick up on that,” said one source. “They can count all the tweets; how many of them there was in a day or a week. They can go through the most negative ones, read them out in court.”

They could suggest to the court, the source said, that the witness is motivated by a grudge.

“That wouldn’t get someone off the hook, the person could still be convicted. But it can damage a prosecution. It can make it look like the prosecution is depending on witnesses who clearly dislike the person on trial. If it’s going to be open season on the credibility of witnesses in court, the DPP’s office doesn’t like that.”

If there is to be a prosecution of Varadkar, the Garda will have to uncover further evidence that is not in the public domain

The investigation is thought to centre on a potential offence under section 7 of the Criminal Justice (Corruption Offences) 2018. A product of the age of the tribunals and designed to make it easier to prosecute people for corruption, the 2018 law nevertheless sets a high bar for a prosecution. It specifies that anyone who “does an act in relation to his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person, shall be guilty of an offence”.

Alternatively anyone who “uses confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person” is also guilty of an offence.

Importantly, the Act defines “corruptly” as including “acting with an improper purpose personally or by influencing another person”.

Any prosecution would have to prove (beyond reasonable doubt, remember) that Varadkar had sought to either obtain a “gift, consideration or advantage” for himself. There has never been a suggestion that there was any such thing for Varadkar – who has argued consistently that he was motivated by the desire to get GPs to accept the new contract.

Perhaps it could be argued that Varadkar was motivated by the desire to obtain an advantage for someone else, but, if so, then the court would have to be satisfied (again, beyond reasonable doubt) that this was his intention; that he acted with “an improper purpose”.

All this means that if there is to be a prosecution of Varadkar, the Garda will have to uncover further evidence that is not in the public domain. Speculation on that front is certain to continue.