The Irish courts can interfere with government decisions connected with foreign affairs to protect an individual's constitutional rights, the High Court was told. It also heard that one of the Northern talks chairmen, Senator George Mitchell, had told some Sinn Fein delegates he would comply if a court compelled action.
In submissions yesterday, Mr Adrian Hardiman SC, for Sinn Fein, responded to the State's argument that his client's exclusion from the Northern talks was non-justiciable and was essentially a political matter.
Counsel also dealt with the claim of foreign sovereign immunity advanced on behalf of Dr Mo Mowlam and the claim, advanced on behalf of the three talks chairmen, that they were not amenable to the court.
Mr Hardiman said these arguments were effectively an application to dismiss his claim before it got off the ground.
The standard of proof for such an application was very high. He was making two central propositions in relation to the arguments advanced.
He submitted, in the first instance, that not all acts of a government were constitutionally protected executive acts.
Second, he submitted that not every act connected in some way with the conduct of foreign affairs was an exercise of the executive powers regarding foreign affairs protected under Article 29 of the Constitution.
The Constitution provided that the executive powers of the State regarding foreign affairs be executed by the government. He did not dispute that.
But there were areas where the courts could intervene, counsel said. These included areas connected with foreign affairs where an individual right arose.
In the present case, it was clearly Government policy to participate in the Northern negotiations. The matter of what solution was urged by the various parties to the negotiations was also clearly policy.
But the decision under Rule 29 of the negotiations to seek to exclude Sinn Fein on the grounds of a claim that it had demonstrably dishonoured the Mitchell Principles was "of a totally different nature".
It was "quasi-judicial" and not a policy decision. It was a matter of factual determination and was plainly intended to be, counsel said.
The courts had intervened, in the Crotty case, and the McKenna case, to direct, in the first instance, that the State should hold a referendum on the Single European Act and, in the second case, to direct that public funds should not be expended by the government promoting one side in a referendum campaign.
Mr Hardiman said the Supreme Court has held that the courts have a right and duty to intervene in Executive decisions to protect the rights of individuals and in cases where the Executive's activity threatens invasion of such rights.
Neither the powers of the Oireachtas nor government were absolute, even within their own domain, he said. There was no area of foreign affairs completely ring-fenced from judicial scrutiny.
He said the State's argument of executive pre-eminence, as advanced by Mr Garrett Cooney SC, in the present case, was no longer, "if it ever was", the law of Ireland.
Mr Hardiman also rejected as "inaccurate", "floodgate" submissions from Mr Cooney suggesting court intervention in such matters could impede EU heads of state from doing business in Ireland. "Floodgate" submissions were generally in inverse proportion to their substance, counsel said.
Dealing with the argument of foreign sovereign immunity advanced on behalf of Dr Mowlam, Mr Hardiman said immunity arose in conditions utterly different to today.
The idea was rooted in the concept of the personal inviolability of a sovereign and came from a time when almost every country was ruled by a hereditary sovereign of royal lineage.
He said the "pure untrammelled doctrine" of sovereign immunity never applied in Ireland and at most what applied was a restricted sovereign immunity which did not apply to trading and commercial acts and acts of a private law character.
He submitted his clients' right to a fair determination of whether they had demonstrably dishonoured the Mitchell Principles was a constitutional right of an individual litigant. It was a private right and was inherent to an individual by virtue of his/her constitutional rights.
Mr Hardiman said no case was made seeking diplomatic immunity for the three chairmen.
The claim advanced on their behalf appeared to be that they were internationally distinguished persons performing a role in the interests of all concerned who, by reason of the international nature of that role, were not amenable to the courts' jurisdiction.
It was also submitted there was no statute constituting the talks and no legal basis for the process which would make the chairmen amenable to the Irish courts.
Mr Hardiman said he accepted there was no statute constituting the talks. But the rules governing the talks existed and defined their legal nature.
Counsel said the governments had proposed a set of rules for the talks in April 1996 but these were rejected by the then participants, who did not include Sinn Fein.
The then participants had adopted their own rules in July 1996 and the role of the talks chairmen was wholly defined by those rules.
He said the rules did not derive their validity from an Act in any individual State. The rules as agreed by the participants bound the participants, who now included Sinn Fein, in relation to their dealings with each other, irrespective of where they were.
The rules were a matter of private arrangement between the participants, despite the public and important nature of the negotiations.
At that point, Mr Justice Morris asked Mr Hardiman to deal at some point with the issue of policing any injunction the courts might make.
Counsel responded that the matter did not arise on the issue of justiciability. He submitted the court had first of all to determine whether it had jurisdiction.
The judge asked was the case not "the X case all over again?". If he were to make an order, it was a matter of public knowledge that the negotiations had now moved to Belfast. If the two governments expelled Sinn Fein, what could he do about it?
Mr Hardiman said there had been a discussion between his clients and Senator Mitchell. He said Senator Mitchell had said that, if a court compelled action, "I for one will comply".
Counsel said that constituted sufficient evidence of intention to comply to exclude the issue of enforceability of an order. In any event, the court should still grant the order sought, he submitted.
Mr Frank Clarke SC, for the chairmen, said he had had no opportunity to discuss the matter with Senator Mitchell and would need to take instructions in relation to the comment attributed to his client.
Senator Mitchell was not immediately available, counsel said, and he could not indicate when he might be in a position to take instructions.
At that point, about 12.20 p.m., Mr Hardiman said he had been informed by his solicitor that Dr Mowlam had asked Sinn Fein to a meeting at Stormont at 2.30 p.m. "It may be that something may occur which may require consideration," he said.