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.
Michael M Collins SC, for Sipo, told the court the complaint was “so bound up” in the constitutional exercises of the Taoiseach that it was “simply not part” of the commission’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, then president of the National Association of General Practitioners (NAGP), in an effort 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.
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The commission correctly concluded that Mr Murphy’s complaint related to matters not within its functions, said Mr Collins, with David Fennelly BL. The issue was part of the normal process of day-to-day government and it could not 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 November 2022 decision refusing to carry out an inquiry into the matter under section 23 of the Ethics in Public Office Act 1995. He is asking the court to remit his complaint for fresh consideration by the commission.
Feichín McDonagh SC, instructed by Prospect Law, for Mr Murphy, told the court Sipo’s reasoning for rejecting the complaint was “legally inadequate” and “does not pass muster”.
He said the commission seemed to be suggesting that “even investigating” would be in breach of the Constitution. Counsel said the administrative body could not decide the “potato is too hot to handle” before handling it. Sipo must handle the potato and then the decision could be judicially reviewed by the High Court, he said.
In considering a complaint, he said, Sipo should examine whether a representative had carried out the proper functions of his or her office and whether public confidence had 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, Mr McDonagh said, Sipo did not appoint an inquiry officer to gather preliminary evidence as required.
Mr Collins said there was “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 could advise on the level of evidence available, but it was still for the commission to decide if there was 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 did not support the court intervening with Sipo’s decision.
Mr Varadkar was a notice party but, the court heard, he had not played an active role in the case.
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