The State is refusing “point blank” to tell the High Court if an agreement exists permitting the British Royal Air Force (RAF) to intercept any aircraft posing a threat in Irish airspace, a judge has observed.
This is a position the Government, Ireland and the Attorney General are entitled to take, but it is not without its issues if Independent Senator Gerard Craughwell’s case is allowed to proceed, according to Mr Justice Brian Cregan.
He is hearing the State’s preliminary application seeking to have the case dismissed pretrial on grounds that Mr Craughwell’s arguments do not meet the standard for a challenge of this nature. The State maintains a matter such as this is non-justiciable unless there is “clear disregard” for the Constitution.
Mr Craughwell alleges Ireland and Britain have a secret unlawful agreement allowing the RAF to intercept any aircraft that could be a threat to Irish airspace. He says article 29.5.1 of the Constitution requires that such an arrangement must be laid before the Dáil and should also have been subject of a referendum vote.
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This alleged deal, which did not come before the Dáil, was introduced after the September 11th, 2001 attacks in the US, he claims.
Mr Craughwell says he has been told that in 2005 then-taoiseach Bertie Ahern gave a reply in the Dáil to a question about the RAF being called on to intercept a hijacked aircraft over Irish airspace. Mr Ahern replied that there was “co-operation and a pre-agreed understanding on those matters”.
Further questioning from Mr Craughwell led to responses that this concerned national security and the Government would neither confirm nor deny the existence of the alleged arrangement.
Previously, the State submitted, in response to the judge’s questioning, that the 2005 statement from the then-taoiseach “did not get close” to stating that there was an international agreement that required Dáil approval.
On Friday, Catherine Donnelly SC, with David Fennelly, for the State, said Mr Craughwell merely made a “bare assertion” that there was an agreement which was “simply not enough” to bring a case with this type of consequences.
While reiterating that she made no admissions about whether an arrangement existed, Ms Donnelly acknowledged that an international agreement, as defined by certain standards, must be laid before the Dáil under article 29.5.1.
She did not agree there would have been a “clear disregard” of the Constitution in the event that the court went on to find an international agreement as per article 29.5.1 existed and was not laid before the Dáil.
She submitted the State might, hypothetically, have had a “reasonable understanding” of what constituted an international agreement and understood any alleged arrangement did not trigger article 29.5.1.
A “good faith” but incorrect interpretation would mean such a situation would not equate to “clear disregard” of the Constitution, she said.
Mr Justice Cregan said that if there was an understanding between Ireland and Britain, it could not be an understanding that was never reduced to writing. If such an arrangement existed, he said, “there is no doubt in my mind, as a matter of common sense, that it must have been reduced to writing”.
He asked that, if a “pre-agreed understanding” existed, was the State “seriously” suggesting this could have been via a telephone conversation and not put into writing.
Ms Donnelly said the court was “speculating” and “drawing enormous inference” without basis.
If a “pre-agreed understanding” is the test to trigger article 29.5.1, this would have “far-reaching consequences”. Such an interpretation was not at all sustainable, she said.
Mr Justice Cregan said his “robust” questioning of the State’s stance was not to be construed as him having concluded views on the application. He adjourned the case to May 16th, when the State will conclude its submissions and lawyers for Mr Craughwell will begin their response to the justiciability motion.
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