A legal challenge to a purported clandestine agreement permitting the British Royal Air Force (RAF) to intercept any aircraft perceived as a threat within Irish airspace does not fulfil the stringent prerequisites for initiating such lawsuits, a court official has been informed.
Catherine Donnelly SC, representing the Irish Government, the Attorney General and Ireland, has requested Judge Brian Cregan to decide that the legal case launched by Independent Senator Gerard Craughwell does not fulfil the needed criteria for a challenge of this sort. If the state defence wins this argument, Mr Craughwell’s case would consequently be dismissed. The judge is currently hearing arguments on the admissibility of this challenge in court.
The legal proceeding pertains to a supposed agreement between Ireland and the UK, in which the RAF is permitted to intercept any aircraft causing a threat in Irish airspace. Mr Craughwell asserts that this agreement, unless approved by the Dáil and voted for by the Irish public in a referendum, is both illegal and unconstitutional. He believes this agreement, which he says was never presented to the Dáil, was put into effect following the terrorist attacks in the US on September 11, 2001.
Based on information he requested from the Government in 2022, Mr Craughwell maintains that he was informed there was a response in the Dáil in 2005, from then Taoiseach Bertie Ahern pertaining to a query on RAF’s readiness to intercept a hijacked aircraft in Irish airspace. Mr Ahern’s reply was that there was a pre-established mutual agreement and understanding on these matters.
Additional doubts raised by Mr Craughwell were met with replies stating that the matter was of national security concern, and the government would not verify or refute the existence of the supposed agreement or arrangement.
In their rebuttal, the state defence neither confirms nor denies the existence of the supposed agreement and refutes any misconduct or unconstitutional behaviour. In a preliminary court proceeding, the defendants have requested for a ruling suggesting the issue is non-justiciable or not eligible for judicial review, unless there is a blatant disregard for the Constitution.
Presenting the initial arguments for the state, Ms Donnelly pointed out that the case in question involves highly delicate aspects of the Government’s implementation of its constitutionally granted authorities. However, in this particular instance, it was merely an “empty claim of a pact” when in reality, an extremely steep standard is set for launching such a lawsuit.
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Mr Craughwell bears a substantial burden of providing more than plain allegation since the topics at hand pertain to international relations and national security, which fall under the Government’s executive authority, Ms Donnelly stated.
The courts typically avoid interfering in these issues unless there’s an apparent “blatant disrespect” for the Constitution, she added. She pointed out a stark discrepancy between the legal structure and the real allegations as opposed to the necessary pleadings.
What was being argued about were “unclear and mere allegations” regarding the RAF obtaining permission to penetrate Irish airspace, she added.
When Mr Justice Cregan enquired about the preceding taoiseach’s 2005 statement in the Dáil regarding the mutually agreed understanding and cooperation, Ms Donnelly said this was nowhere near a declaration of an international treaty that, according to the Constitution, must initially be ratified by the Dáil. The pleaded facts “do not get the case airborne,” she concluded.
The case is still under judgment.