Cassandra Voices

Tag: Official Secrets Act

  • Varadkar off the Hook: Questions Remain

    In response to allegations made against then Taoiseach Leo Varadkar which appeared in Village Magazine, in March 2022 I submitted a formal statement to the Garda investigative team regarding the Official Secrets Act (hencefore OSA); in particular pertaining to the responsibilities of Martin Fraser, then the most senior civil servant in the country.

    I also pointed to an usually-timed departure from precedent in Fraser’s appointment as the next ambassador to London, which is in the gift of Fine Gael’s Simon Coveney as Minister for Foreign Affairs.

    Certain circumstantial evidence remains pertinent to any interrogation by the Oireachtas into what has occurred, namely:

    February 11, 2019: the NAGP union write a threatening letter to Fine Gael HQ warning it would be canvassing against them in upcoming local elections and the forthcoming general election.

    April 10, 2019: the confidential GP contract is couriered from the Taoiseach’s Department to then Taoiseach Leo Varadkar at Baldonnel airport without formal authorisation and with no conditions attached.

    April 25, 2019: an official in that Department of Health warns that ‘Unilateral publication of the Agreement, in the absence of confirmation from the IMO that it is satisfied with the final text, would represent a serious breach of trust.’

    We still do not know which civil servant authorised that initial leak.

    It beggars belief that in the seven months from the time that the revelations appeared in Village Magazine (October 2020), and the case being raised to a criminal investigation (April 2021), that the most senior civil servant in the country – with responsibilities deriving from the OSA including internal breaches – does not appear to have conducted an internal inquiry.

    Bear in mind that if a junior official leaks a confidential file it is usually career suicide, and potentially results in criminal charges.

    I therefore previously argued that it is reasonable to assume that no junior official leaked the document, and that authorisation came from Fraser himself.

    It is important to emphasise that Martin Fraser was one of three Civil Service Commissioners with certain legal powers vested in him that exceed even the Taoiseach of the day.

    The logic underpinning such formidable powers is that they are responsible for the preservation of the institutions, statute and assets of the State beyond the life of any government. Hence the concept of a ‘permanent’ government and its daunting power.

    With such power arrives commensurate responsibility. It became apparent in my dialogue with members of the Garda investigative team that Martin Fraser had not conducted an internal probe, and his role was never under investigation.

    On legal advice I withdrew my statement and was advised that the matter would return to the Oireachtas for clarification and investigation.

    The Duties of the Oireachtas

    Now that the DPP has ruled that Leo Varadkar has no case to answer the matter comes back to the Oireachtas, which ought to clarify the following points before Martin Fraser departs for London. He should be compelled to explain:

    • Why he failed to conduct an internal investigation into the leaked and confidential contract, either in the seven months before the Gardai gave it criminal status or since.
    • If Martin Fraser was indeed responsible for the release of the document, why he didn’t, as cabinet secretary, inform the cabinet. Further to this, it should be asked how and when the cabinet first learned that the contract had been leaked, and was this only through the Village Magazine article.
    • How it is that a Garda investigation spanning eighteen months seemingly never examined the role of Martin Fraser given the strong likelihood the document was released from his Department.

    This affair has set a very damaging precedent whereby the habitual violation of the OSA becomes a risk to the security of the State in the event of future leaks. The DPP decision that Leo Varadkar has no case to answer suggests that sensitive documents may now be casually disseminated.

    The Oireachtas needs to determine, once and for all, on whose authority the contract moved from the Department of Health to the Taoiseach’s Department.

    Mr Fraser should be directly questioned as to whether he authorised that step, using his higher powers as head of the civil service, and commissioner, to demand the release of the document from the then Secretary General of the Department of Health, Jim Breslin to his own Department of the Taoiseach. Mr Breslin would have been obliged to release the document to his superior in the civil service chain-of-command.

    Moreover, the DPP’s decision makes it imperative for the Oireachtas to clarify who is responsible for a breach of the OSA.

    Leo may be off the hook, but important issues surrounding the affair remain opaque. The fundamental matter to be addressed is who precisely within the civil service authorised the initial leak of the document to Leo Varadkar.

    It is quite simply bizarre that Martin Fraser – without previous diplomatic experience in the Department of Foreign Affairs – was appointed ambassador to our most sensitive and prestigious embassy at a time when a criminal probe into a leaked document remained unconcluded; in a matter over which he held overarching responsibility.

    Bernadette Gorman was a civil servant for twenty years and held statutory powers. She worked as an Inspector and a trainer of Inspectors.

    Feature Image: (c) Daniele Idini.

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  • Varadkar Leak: Broaden the Investigation

    The ongoing criminal investigation into an alleged breach by Tánaiste Leo Varadkar – while Taoiseach in 2019 – of corruption legislation and the Official Secrets Act (OSA) should be broadened to include members of the permanent Government; especially the Secretary General to the Department of the Taoiseach, Martin Fraser. Instead, he is set to be become Ireland’s next ambassador to the U.K., despite having no diplomatic experience.

    Serious charges of corruption were first levelled against Varadkar in Village Magazine in October, 2020, but this article primarily focuses on the importance of the OSA investigation pertaining to the responsibilities of top civil servants. The OSA requires the relevant civil servants to perform a formal authorisation process before the release of a confidential official document.

    The weight of responsibility for upholding the State, its assets, institutions, and statutes in perpetuity falls to civil servant members of the permanent government. The formidable powers vested in senior civil servants are commensurate with their responsibilities.

    Chain of Movement

    We know that a confidential draft G.P. contract was acquired by Leo Varadkar through his own Department of the Taoiseach, which received it from the Department of Health, and that, bizarrely, this was couriered from the Taoiseach’s Department to Baldonnel Aerodrome to the then Taoiseach.

    It is safe to assume that that this unorthodox chain of movement involved the State’s most senior civil servant, Martin Fraser, and perhaps then Secretary General of the Department of Health Jim Breslin.

    Notably, an official in the Department of Health warned that ‘Unilateral publication of the Agreement, in the absence of confirmation from the IMO that it is satisfied with the final text, would represent a serious breach of trust.’ The leaking by Varadkar of the document to his friend Dr Maitiu O Tuathail, the President of the rival National Association of General Practitioner (NAGP) surely “represented a serious breach of trust.”

    Moreover, according to the FOI received by Sinn Féin TD Pearse Doherty even ‘the line Minister responsible for the negotiations [then Minister for Health Simon Harris] was unable to obtain the contract from his officials.’

    If the draft contract had been acquired by Leo Varadkar from a more junior official it would not be the subject of a criminal probe, as there would have surely first been an internal inquiry under the Secretary to the Government, Martin Fraser.

    We can therefore take it for granted that the release of the document to Leo Varadkar was authorised by the State’s most senior civil servant: Martin Fraser. If so, it begs the question why Fraser would have permitted this to happen.

    Legal Obligations

    What then were Martin Fraser’s legal and constitutional obligations?

    First, as the State’s most senior civil servant he should have satisfied himself and informed the Cabinett under 2018 anti-corruption legislation and the OSA, that Varadkar was not acquiring a highly sensitive document for corrupt and unlawful purposes. An apparent failure by Fraser– who originally joined the Department of the Taoiseach as finance officer in 1999 under Bertie Ahern – to interrogate why Varadkar sought a hard copy to be delivered to him at Baldonnel displayed an unacceptably permissive approach, at the very least.

    Secondly, Fraser had an obligation as Cabinet Secretary to inform the Cabinet that Varadkar had acquired the confidential G.P. contract under the OSA. Any decision to release such a sensitive document should have followed normal Cabinet procedures, or at least the advice of the Attorney General should have been sought.

    That the roles of Fraser, and, to a lesser extent, Breslin do not form part of the Garda investigation sets a dangerous precedent, with the potential to destabilise the legislative basis of the State itself. The powers of the civil service operate in perpetuity via a constellation of interacting legislation, of which the Ministers and Secretaries Act, the OSA and civil servants’ contracts are integral parts.

    Many now consider the leaking of the G.P. contract to have been relatively harmless, and question whether Leo Varadkar had anything to gain from it. But that the Gardai have given it the status of a criminal investigation demonstrates the gravity of the matter. Any breach of the OSA casts doubt over the integrity of senior officials – especially Martin Fraser – and by extension state institutions.

    These processes are not now being interrogated in what appears an alarmingly narrowly focused investigation.

    Despite repeated attempts to bring this matter to the attention of senior members of the Gardaí, I have received no response to date.

    Ambassador Role

    If he was under investigation, Fraser would surely not be departing for the role of Ambassador to the U.K..

    That he was proposed in July 2021 for the London posting, while the investigation was underway – and where it had been raised to criminal status encompassing the OSA since April 2021 – gives rise to serious concern.

    That appointment process calls into question the judgement of the current Taoiseach, Micheál Martin the Tánaiste, Leo Varadkar and the Minister for Foreign Affairs, Simon Coveney. Formal democratic decision making is being sidestepped, amidst the horse-trading of a tripartite coalition that devolves to the permanent, unelected government. The botched secondment of Tony Holohan – in which Martin Fraser is also implicated – confirms this impression.

    As in Holohan’s case, with Fraser’s appointment to London, executive decisions appear to have been made in violation of normal procedures. Indeed, Fraser has no prior experience as a diplomat with the Department of Foreign Affairs.

    But the plum London job still awaits a figure described by former cabinet minister Shane Ross as ‘an immensely powerful civil servant.’

    Zappone Appointment

    From what we know of what is in the public domain, Fraser was among a suite of names proposed for various overseas positions, which were brought to the Cabinet for consideration on July 27, 2021, just as the controversial proposal to appoint Katherine Zappone as UN special envoy was unravelling.

    The Irish Times carried a story that afternoon stating that Fraser had been “proposed” that day for the London Embassy job, but it remains unclear when the Cabinet actually signed off on this appointment.

    The Irish public now have a right to know whether Fraser knew the purpose for which Varadkar was obtaining the sensitive contract in an unorthodox fashion; and if not, why didn’t he attempt to ascertain this.

    The role of Martin Fraser – along with the then Secretary General of the Department of Health Jim Breslin who should have received any such instructions in writing – should form part of this criminal investigation.

  • Does Ireland still have a Problem with Whistleblowing?

    Over the past few years, a broad consensus has emerged that in Ireland providing adequate protections for whistleblowing, and whistleblowers, is a lot more difficult to achieve in practice than in theory.

    In many fields, extreme real life consequences for a brave decision to go public with revelations of wrongdoing have been apparent. The protections currently in place do not shield individuals from repercussions in one’s personal and family life, or career. We are talking about losing a job, harassment, unwanted public exposure, grave false allegations and framing, protracted legal challenges, financial difficulties to name but a few. All too often, such individuals are dismissed as ‘rats’. There follow death threats and even the potential for imprisonment. At any level such a decision is a life-changing event. In many cases it is traumatic.

    There are many examples: Garda John Wilson and Maurice McCabe’s ordeals are well recounted in a RTE in a documentary. Back in 2017, banking whistleblower Jonathan Sugarman testified to the Oireachtas that: “Official Ireland has absolutely and completely destroyed the lives of every single whistleblower who has come forward, from whatever walk of life they’ve come.” 

    Many others have come forward to expose misconduct they witness emanating from so-called ‘official Ireland,’ a term that broadly signifies the nexus of the Irish ruling class’s power, across the public and private sector. It is fair to say, as sources have revealed, that there were, and possibly are, many more people who feel unable to go down the whistleblowing path.

    Notwithstanding the Protected Disclosures Act 2014, the law should better regulate whistleblower disclosures and their protection, and encourage people to step forward when they witness wrongdoing.

    Even now in 2021, after much debate and revelations, and with Irish whistleblowing legislation being under the process of amendment in compliance with the EU Directive 2019/1937, it is alleged that a culture of ostracizing whistleblowers persists in the civil service, Garda, as well financial and other corporate institutions.

    If the legislation is there to protect individuals, why then, are some, or many unwilling to proceed? Why is it that after long pondering, and perhaps after seeking confidential advice from a lawyer or union, they find themselves unable to proceed with a disclosure?

    And what can the whistleblower expect to endure after making the brave decision? More to the point, does the proposed new legislation offer adequate protect form the extensive tentacles of ‘official Ireland’?

    I posed these questions to human rights barrister David Langwallner, who was asked by Sinn Féin to help draft a private member’s bill which they propose to introduce to Dáil Éireann by July 31st, 2021.

    Daneiel Idini (DI): David, can I ask you what’s happening these days with regard to whistleblowing in Ireland?

    David Langwallner (DL): What happened was and I’ve got to be a bit circumspect about this. I was approached by a former client of mine who’s a whistleblower, and that client indicated that the Oireachtas was about to introduce, in compliance with EU law, a newly amended protected disclosure legislation to pass in 2021. There is an existing Protected Disclosures Act 2014. But certain deficiencies were pointed out to me by the Sinn Fein party. I had a meeting with them, they’ve asked me to draft a private member’s bill that they propose to introduce by July 31th 2021, first because of perceived and actual deficiencies in the existing whistleblowing bill.

    DI: How long have you been dealing with the issue of whistleblowing concerning Ireland?

    DL: I have represented whistleblowers [in the inquiry into a bank inquiry.] I continue to represent Garda whistleblowers and corporate whistleblowers. I lectured for one semester whistleblowing, at Middlesex University and I have gathered extensive materials.

    DI: You have also written two articles, one in the Village magazine and one in broadsheets on the pitfalls of whistleblowing. And tell me what exactly is wrong with Ireland’s handling of whistleblowing.

    DL: I think a number of things. The first thing is that the new proposed act is seeking to introduce private whistleblower regulation. The real problem in Ireland is state corruption. So you need regulation for whistleblowing and provisions that deal with whistleblowers in the Police; whistleblowers in the Department of Civil Service; whistleblowers within the structure of inquiries; whistleblowers within the structure of the public health system; and indeed the prison service and the present bill does not address that fully.

    DI: Is that because of the fact the whistleblower is forced to refer to the top of the organization that he is trying to blow the whistle on?

    DL: So that is that deficiency, I suppose. But the other deficiencies, documents, and literature suggest that there is no point in having a structure where a whistleblower is subject to the necessity to follow internal procedures before they (feel safe) to go externally.

    The reason for this is that when internal procedures are usually invoked, there’s the risk that bullies, submission, demonization, can ostracize the whistleblower.

    The first recipients of the disclosure are usually the very people who want cover-up in the first place. And in a culture like Ireland’s one, there are very few independent people who take this seriously.

    So a whistleblower has to do a job. He has to be able to circumvent the internal processes and procedures of the corporate or public organization that they’re in.

    And that means a whistleblower has to be allowed to go outside that organization, to the press, for example. But the difficulty that we face in this Irish media context though, is that there is very little investigative press, anymore, who are not controlled by the established parties. The same parties are concealing all the levels of misconduct and wrongdoing.

    DI: So can you tell me in a nutshell in a few minutes exactly what the current legislation covers and if it tackles this “Culture” of antagonism towards whistleblowing?

    DL: Well, the current legislation covers things like criminal wrongdoing, corruption, bad financial administration, miscarriages of justice. It’s extensive to that extent. But the problem is that it doesn’t matter how extensive the coverage is in terms of protection If the culture is not receptive to whistleblowing.

    So, the person I represented to the inquiry into whistleblowing and audit the second day of the case,(the first effective third case,) the police got wind of this and they threatened the breach of the Official Secrets Act. So to intimidate to not go ahead. So even if you’ve got a culture of bullying, harassment, and intimidation, you could also, at the same time have, like the Soviets, a fabulous constitution that protected every right under the sun but it was utterly meaningless in practical terms.

    You could have a whistle-blowing statute that protects everything, but not when organizations such as the Department of Justice, Police, corrupt politicians get involved. I think what we need to do is create a more receptive culture. It means creating an independent ombudsman, allowing for external reportage.

    DI: Can you give me an example of what is the path that he has to follow to effectively become a whistleblower and therefore denounce what he saw?

    DL: Well say, for example, a senior police officer who sees that the police are actively framing people for child sex abuse, for example. The process of complaint in that particular context is that the police officer in question would have to make an internal complaint within the police. And those at the top police force were part of corruption.

    DI: Are you saying that there should be more protections for someone who makes the disclosure directly to an external, independent first recipient. Someone or a body that is not in the organization involved by the whistleblower disclosures?

    DL: There can be no barrier, statutorily, to someone going to an external body or agency or the press, having to have exhausted internal procedures. As they have to go through the hoops of internal procedures, those procedures would try to demonize and diminish them and have a vested interest.

    So you have to go first internally, and then go to an ombudsman, before you go to the press or external body.

    I think in conjunction with the whistleblower allegation, we need to build in a procedure where the whistleblower is almost immediately protected, and that I mean that there must be a party to go to that can give them a income structure if there were suspended from work, so that they don’t have to interact with people who are blowing the whistle on the workplace. The lack of such support is inherent in our culture of compliance, which is so amazing.

    For the purpose of clarification, I had further conversations with David on the last points touched on in the above interview as to the psychological impact that a whistleblower faces. If not properly addressed with, for example, access to therapeutic psychological support, as well as other forms of protection, even more stigmatization may be the result.

    I also discussed with him, as well as with other sources, that currently wish to remain anonymous, the procedures for disclosure that are in place for whistleblowers to use. It’s pretty obvious that internal procedures of disclosures, in some cases, can be painful as well as inefficient for all the reasons discussed above. But are alternatives offered, for example the Garda Ombudsman with regard to complaints about Gardai, allowing for the full protection available under the Act? And is the compensation scheme adequate, or should this include aggravated and exemplary damages?

    Should the protections, and possible compensation, also include redress to family members of whistleblowers, who might have suffered the consequence of this “culture”.

    We will continue to ask these and other questions, but in the meantime, there remains one important question for me to ask which is: has Ireland got any better for whistleblowing, after years of revelations, media coverage, and resignations; or are things pretty much as they always were, if not worse?