The Court of Appeal has been told by the State that a case against them taken by a sitting senator alleging that a secret arrangement exists allowing the British military to intercept rogue aircraft in Irish airspace should not be allowed go to trial because of legal issues.
The case was brought before the High Court by Independent senator and former soldier Gerard Craughwell, who claims that any such arrangement, or “international agreement” between the two governments is unlawful and unconstitutional unless it has been approved by the Irish people in a referendum.
Last year, the State brought a motion requesting that a preliminary issue on a point of law be heard and determined separately from the full trial but failed in the action and appealed.
On Friday at the Court of Appeal, Brian Kennedy SC, for the Government and the Attorney General told the three-judge court that the claims made by Sen Craughwell were “not judiciable” and the matters claimed in court papers were political and not legal ones.
Mr Kennedy said the State had been put in a “difficult position”, as its policy regarding sensitive State security meant it could neither confirm nor deny the claims of Sen Craughwell.
Counsel said the State denied acting improperly or unconstitutionally, as claimed in Sen Craughwell’s action.
Mr Kennedy claimed that material facts had to be entered into the pleadings in the case for it to be allowed to be heard. Counsel said this had not been done by the plaintiff, and there were not sufficient claims of fact in the pleadings to meet the threshold for the case going to trial.
Sen Craughwell claims that while the government has never confirmed or denied the alleged international agreement with the British military, in 2005 then-Taoiseach Bertie Ahern told the Dáil there was “cooperation and a pre-agreed understanding on those matters".
Mr Kennedy said the Taoiseach had not referred to an “agreement” at all and said the only fact Sen Craughwell had produced in the case was that there had been a question asked and answered in the Dáil.
“Bare assertion is not sufficient for the case to go further,” he said.
If the State succeeds in its argument on the preliminary issue, then Sen Craughwell's case would fall before any full hearing.
Mr Gerard Humphreys, for Mr Craughwell, said there was an arrangement in place between the two governments that could only be an agreement in need of approval by the Irish people under the Constitution.
Counsel also said this meant the Government's failure to exercise control over Ireland's territorial waters and airspace breaches the Constitution.
Mr Humphreys said what was sought from the Government was either a denial or an admission of an agreement or a treaty with British authorities.
He said that there was no requirement for the details of any such deal and that he and his client did not wish to endanger Ireland or UK security. “The plaintiff [Sen Craughwell] was in the Irish and British army,” he said.
Mr Humphreys said that the comments of then-Taoiseach Ahern were raised by the leader of the Opposition and answered in the Dáil “on a very specific matter”, which were not “bare assertions”, as claimed by the defendants.
Mr Justice Charles Meenan said the court would reserve its judgement in the appeal.
