thehighhorse
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thehighhorse

The mills of God grind faster than Ireland’s official processes

With thanks to Kulbir

No, this piece is not about Ukraine, but that piece will come in time. The moulds of an old world have been broken in only a few days but it will take longer for new moulds to establish themselves. One thing for sure though, we are all Ukrainians now.

Instead, this is the third blog among the last five that refers to Leo Varadkar, a frequency that may suggest an unhealthy obsession. But please do read on. I promise this piece is not about Mr. Varadkar as such. It is about the judicial investigation hanging over him at the moment.

On 29 January, The Irish Times published a reflective piece by-lined by three journalists; Pat Leahy, Mary Carolan and Conor Lally, under the headline: “Ongoing Garda investigation threatens Varadkar’s return as Taoiseach”.

According to the article, in April 2019 Mr. Varadkar gave a copy of an agreement between the State and the Irish Medical Organisation (which represents doctors in Ireland) to Maitiú Ó Tuathail, then president of a rival organisation, the National Association of General Practitioners. This emerged after a story appeared in Village Magazine, which describes itself as Ireland’s political and cultural magazine. Mr. Varadkar confirmed the fact in the Dáil in November 2020.

An investigation was initiated by the Garda National Bureau of Criminal Investigation following a complaint from Chay Bowes, the original source of the story in Village Magazine. 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) who will form an opinion about whether any laws were broken and whether to bring criminal charges.

The reason why all this might be worth monitoring is that Mr. Varadkar is due to reassume the position of Taoiseach in December under the agreements between the parties forming the present government. In the view of the journalists:

…if…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.

“Sources with some knowledge of the affair” expect the investigation to wrap up shortly. BUT:

…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.

“Garda sources who spoke to The Irish Times” said there was nothing unusual about the length of time the inquiry was taking.

The issues in play run deeper than whether Mr. Varadkar shared the document which he has already confirmed. According to “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?”

Also, this is a high profile case. According to “another source”:

“There’s pressure on this investigation team. They know everything they are doing now will probably be pored over down the road… 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”,

The priority is that it is done properly, if that means it is slow, so be it.

When their investigation is complete, the Gardai will send a file to the DPP with a recommendation to prosecute, a recommendation not to prosecute or no recommendation at all. Then, according to “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… 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.”

According to the journalists, the investigation “is thought” (by whom, they don’t say) to centre on a potential offence under section 7 of the Criminal Justice (Corruption Offences) Act 2018 which specifies that anyone who does an act or uses confidential information arising from their 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.”

The article concludes:

…if there is 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.

Three sets of observations.

One is a moan about the gossamer-thin “cloak and dagger” tone of modern journalism. We have sources who spoke to the newspaper, sources with some knowledge of things and plain, unadorned “sources”. And then we have incorporeal sources of “thought” articulated in the passive voice. “It is thought…” By who or what? The house cat? A half century after Watergate, investigative journalism continues to revere the vernacular of Woodward, Bernstein and Deep Throat eve if it rarely delivers equivalent substance.

Does the liberal sprinkling of references to unidentified “sources” bolster the authority of the narrative in any meaningful way? I would be shocked if, between them, this trio of journalists didn’t already understand the way the “system” works without having to reinforce their communication to us of that understanding with so many “sources”?

Second observation. It looks like the situation can evolve towards four possible statuses by December.

Two are that Mr. Varadkar will have been prosecuted, tried and found either guilty or not guilty. Based on how long this process has already taken, reaching either of those destinations by December seems unlikely.

However, if there is a trial and if Mr. Varadkar can somehow contrive to remain leader up to and through it and is found not guilty, then he has a chance of becoming Taoiseach. He has no chance if found guilty. There are so many ifs, buts and maybes along the journey to those outcomes that there is no point in saying more right now.

The third possibility is that he will have been charged but court proceedings remain pending. It’s hard to see him becoming Taoiseach in that Limbo. But, it is also hard to see what will happen instead. Will Fine Gael replace him as leader? Or will Micheál Martin linger on as Taoiseach?

And the fourth possibility is that we will be in broadly the same place we are now. The file might not have reached the DPP or it might, but we would have no decision from the DPP. In that case, it’s less hard, but not easy to see Mr. Varadkar being reinstalled in the Taoiseach’s office.

Final observation. 16 months have elapsed since the initial public revelation of Mr. Varadkar’s action, 34 months since the action itself — and we seem still a long way away from a resolution.

Why do things take so long? Although the article doesn’t say this, it exudes a tone of tacit acceptance that this is just how things are, that there is something “natural”, necessary even, about the pace of proceedings.

Well, I just don’t buy into that sympathy and tolerance towards official process.

There is some complexity to this case — but not that many moving parts. It’s not the legal equivalent of designing the Saturn V rocket or, as Basil Fawlty once said to Manuel, “It’s not difficult. This is not a proposition from Wittgenstein.” (a fashionable 20th century Austrian philosopher). Justice delayed is justice denied, both to Mr. Varadkar and the rest of us. I am not saying that there is a compelling case for this investigation being fast-tracked relative to other cases in the investigatory “hopper”. But, there is surely a prima facie case that it is taking longer than it should be allowed to do.

As an aside, I note the interval between Golfgate events (July 2020) and their resolution in court (January 2022) was only 18 months altogether.

I am just wondering in what kind of Dickensian, quill-pen, candlelit world our investigatory and prosecutorial systems are operating? Does anybody actually drive things forward or are they just let drift along at their own random “natural” dignified pace?

Since the foundation of the state, more than 20 members of the Oireachtas have received prison sentences before, during or after their term of office, most of which led to them doing prison time north or south of the border. But none has the status of Mr. Varadkar, a serving TD and current Tánaiste (deputy Prime Minister), former and prospective Taoiseach. There is a unique public interest case for the Garda and the DPP getting on with it briskly — and without having to trim rigour to do so.

Compare and contrast present and past, recognising that contexts and processes differ between the two.

On 6 May 1970, then Taoiseach Jack Lynch dismissed Charles Haughey, Minister for Finance, and Neil Blaney, Minister for Agriculture, because of their alleged involvement in the illegal importation of arms into the state. Later that month, the two former Ministers were arrested at their homes and charged. The charges against Mr. Blaney were dropped in July but Mr. Haughey and others faced trial in September. The first trial was aborted but the second proceeded promptly shortly afterwards and all defendants were acquitted in October. Less than six months from start to finish.

Autre temps, autres moeurs. But, the contrast merits consideration.

In her interview with The Irish Examiner in January which attracted attention mainly for her description of the public and civil service as “constipated”, Mary Lou McDonald hit the nail right on the head.

“It’s just we have not found the art of balancing efficiency and due diligence. We shouldn’t have to choose between one or the other, we need both, because obviously when you’re dealing with public resources and systems, public monies, you need to be sure that you have the right accountability, that the i’s are dotted and the t’s are crossed, but things can take forever.”

Quite.

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