Sunday 25 August 2019

Gene Kerrigan: ''Mr Justice Varadkar' has ruled on Bailey'

The Taoiseach privatised the Maria Bailey scandal, making himself judge and jury, cutting out the law, writes Gene Kerrigan

Cartoon by Tom Halliday
Cartoon by Tom Halliday

Last week, Leo Varadkar acted as DPP, defence counsel, judge and jury in the matter of Maria Bailey-v-a swing.

The Bailey scandal has been a nuisance for Varadkar and Fine Gael. It erupted just before the Euro and local elections and the damage it did then and the damage it might yet do is what this has been about ever since.

It hasn't been about truth, about justice, morality or insurance costs - it has been, and it remains, all about the image of Fine Gael.

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Now, in their hurry to be done with the scandal, parts of Fine Gael have assumed the appearance of a vengeful mob.

And the party leader has chosen a very questionable route out of the mess. One that involves word-play as a means of misleading the public.

People get hurt, often through the negligence of others. An accident may or may not be due to someone doing or not doing something they should have done - or should not have done.

Most incidents where people receive minor injuries end with them calling someone - maybe themselves - "Ya bloody eejit". Sometimes, though, it appears people have their lawyers on speed-dial.

When Maria Bailey TD fell off a swing at the Dean Hotel it didn't stop her taking part in a 10km run three weeks later.

Yet, it was serious enough for her to sue the hotel because it failed to supervise her when she sat on the swing.

Conclusions were reached, the words "compo culture" were uttered.

Now, the claim that insurance premiums are high because of "compo culture" is simply untrue. Insurance rates are high because insurance companies want to make more profits. Those profits are currently sky high.

If the insurance companies have a reasonable suspicion that anyone is trying to defraud them, they can report this to the police - in fact, they are obliged to do so.

Pearse Doherty TD uncovered disturbing evidence about these alleged fraudulent claims. In the six months to last March - when insurance company propaganda was claiming thousands of people were making false claims - the entire insurance business submitted just 19 complaints to the gardai about suspected fraud.

Once the Maria Bailey scandal erupted, Fine Gael showed little interest in the facts of the case, the reality of alleged fraudulent claims, insurance company profits or small businesses closing because of rising insurance premiums. It's all been about limiting the political damage.

Leo Varadkar asked David Kennedy, a barrister, to inquire into the matter. This is the classic political response - a means of shutting things down for a while. ("Sorry, I can't answer your questions, these matters are the subject of an independent inquiry.")

Meanwhile, another aspect of the scandal was coming to the boil - the anger brewing within Fine Gael - against Bailey. It was as though elements within the party weren't too pushed about insurance costs or the validity of insurance claims - what mattered was potential loss of votes.

Members of the main political parties seldom take a stand on principle - they care about votes, office, party advancement and personal ambition.

There was pressure for Varadkar to remove the whip from Bailey. This would open up all sorts of opportunities for other Fine Gael people.

As this unfolded, Bailey's father, a longtime FG activist, died.

To his credit, Varadkar felt this should affect how he handled the matter - there is a natural queasiness about piling troubles on to those in mourning. It lacks humanity.

Rather than remove her from the FG ticket for the next election, Varadkar felt it was enough to remove her from chairing an Oireachtas committee, with a loss of almost €10,000 in income.

Some do not appear to share Varadkar's queasiness. The media reported that some FG activists were outraged. They wanted Bailey politically kneecapped. That's their private party business, let's leave them to it.

What matters to us has to be the Taoiseach's action, or lack of it, when he discovered one of his TDs involved in a controversial damages claim.

We must bear this in mind: according to the Taoiseach, David Kennedy concluded that Maria Bailey swore an affidavit that verified a formal court document in which she "overstated the impact of her injuries on her running".

To overstate the consequences of an accident, on oath, is a serious matter.

I don't know who David Kennedy is. We don't know what terms he worked under, what evidence he heard, exactly what conclusions he reached, and - crucially - how he worded those conclusions.

None of that has been deemed any of our business - although it involves a TD, and the actions of a party leader and Taoiseach.

The inquiry report isn't published; Varadkar made a statement that supposedly summarised aspects of the report. His excuse for not publishing is that witnesses were interviewed on a confidential basis.

This is nonsense.

It gives the impression that there are all sorts of private matters, inside information, which witnesses revealed on a strictly confidential basis. There's no evidence that this happened.

This is about a bloody swing in a hotel, a legal claim made in writing, supported by an affidavit, medical reports and so on. There are no secret whistleblowers, there are no surprise witnesses.

There is no need to publish witness statements. There is, though, a need to publish Kennedy's conclusions and the basis for them.

The wording matters.

"The inquiry states that it was not a fraudulent claim", Varadkar says - but we can't see what the report actually says, allegedly because of confidential witness statements. This is misleading, and Varadkar must know that.

Maria Bailey, on the other hand, said, that Kennedy concluded it was not a fraudulent claim on the basis that, "it would be unlikely that a court would conclude that there was any attempt to mislead on my part".

I prefer Bailey's version rather than Varadkar's. I believe a lawyer would word things carefully, would give an opinion that a court is unlikely - on this or that basis - to make this or that finding.

This should, of course, be a matter for due process by the appropriate authorities. Instead, Varadkar has hijacked the issue. He has ruled on whether Bailey broke the law, he's given his own version of what the private FG report says.

And, now, all he has to worry about is the vengeful FG mob who think he's a softy for not kicking Bailey when she's down.

Fine Gael fought the law and the law sure as hell didn't win.

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