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.
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.
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.’
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.