Courts

State argues court should not allow Senator’s challenge to alleged secret deal with RAF

Gerard Craughwell claims any arrangement allowing RAF interception in Irish airspace is unlawful and unconstitutional unless approved by Dáil and put to a referendum

The case concerns an alleged agreement between Ireland and Britain allowing the RAF to 'intercept' any aircraft that poses a threat in Irish airspace. Photograph: Jane Barlow/PA Wire

Thu Apr 18 2024 - 19:48

A High Court challenge to an alleged secret arrangement allowing the British Royal Air Force (RAF) to intercept any aircraft posing a threat in Irish airspace does not meet the high threshold for bringing such cases, a judge has heard.

Catherine Donnelly SC, for the Government, Ireland and the Attorney General, has asked Mr Justice Brian Cregan to rule a case brought by Independent Senator Gerard Craughwell does not meet the standards required for a challenge of this nature.

Should the State defendants succeed in winning that argument, then Mr Craughwell’s case will fall. The judge is hearing arguments on whether the court can hear the challenge at all.

The case concerns an alleged agreement between Ireland and Britain allowing the RAF to “intercept” any aircraft that poses a threat in Irish airspace.

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Mr Craughwell claims that any such arrangement is unlawful and unconstitutional, unless it has been approved by the Dáil and put before the Irish people in a referendum. He claims the agreement, which he says has never been put before the Dáil, was introduced after the September 11th, 2001, attacks in the US.

[ Court to hear arguments over alleged ‘secret arrangement’ for RAF in Irish airspace ]

Arising out of information he requested from the Government in 2022, Mr Craughwell says he was told there had been, in 2005, a reply given in the Dáil by then taoiseach Bertie Ahern 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 questions about this from Mr Craughwell led to responses that this concerned national security and the Government would “not confirm nor deny the existence of any alleged agreement or arrangement”.

In their defence, the State defendants do not confirm nor deny the existence of the alleged agreement. They also deny acting improperly or unconstitutionally.

In a pre-trial application, the defendants have asked the court to rule that the matter is non-justiciable, or subject to judicial review, unless there is clear disregard for the Constitution.

Opening the State’s arguments, Ms Donnelly said the pleaded case concerned highly sensitive elements of the Government’s exercise of its constitutionally conferred powers. However, in this case, all there was was a “bare assertion of an agreement” when there is a very high threshold for bringing such a case.

[ RAF jets may have entered Irish airspace, Martin says ]

The onus that lies on Mr Craughwell to plead more than mere assertion is very formidable because the matters that arise relate to external relations and national security which engage the executive power of the Government, she said.

It is well-established that in the normal course the courts will not intervene in such matters unless there is “clear disregard” for the Constitution, she said. There was a clear disconnect here between the legal framework and the actual pleas compared to what is required to be pleaded, she said.

What was being pleaded here were “vague and bare assertions” about permission having been given to the RAF to enter Irish airspace, she said.

Questioned by Mr Justice Cregan about the fact that the then taoiseach made a statement (about the pre-agreed understanding and co-operation) in the Dáil in 2005, Ms Donnelly said this “did not get close” to a statement that there was an international agreement which required under the Constitution to be first approved by the Dáil. The facts, as pleaded, “do not get the case off the ground”, she said.

The case continues.

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