No role for courts in determining existence of RAF air defence arrangement, argues State

The State is claiming the courts cannot consider Independent Senator Gerard Craughwell’s constitutional challenge against what he claims is a secret arrangement allowing the British Military to intercept any aircraft in Irish airspace that poses a threat to either country.

Senator Craughwell has brought proceedings over what he claims is an agreement between Ireland and Great Britain allowing the Royal Air Force to fly into Irish airspace and “intercept and interdict” aircraft that pose a threat is unlawful and unconstitutional, absent of any approval by the Irish people in a referendum.

The agreement, which he claims has never been put before the Dáil, was allegedly introduced following the September 11th, 2001, attacks in the United States.

Acting unconstitutionally

The Government and the State, which do not confirm or deny the existence of the alleged agreement, have filed a defence opposing Senator Craughwell’s action.

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It denies any suggestion it has acted improperly or unconstitutionally.

It has brought a pre-trial motion where it claims that any exercise of the Government’s power in relation to the State’s external relations and security, in the absence of any material facts capable of establishing a clear breach of the Constitution, is not justiciable, meaning that as such it cannot be reviewed or determined by a court of law.

It also submits that the courts cannot review matters of external security that fall within the scope of the Government’s executive power, where the denial or confirmation of any such arrangement could endanger State security and its international relations.

Should the State succeed in its pretrial application, Senator Craughwell’s case will fall. The Senator’s legal team are opposing the motion.

The case was briefly mentioned before Ms Justice Eileen Roberts at the High Court on Monday, who was told that the pre-trial motion is ready to proceed to a hearing.

Brian Kennedy SC, for the respondents, said that issue should take two days to hear.

Gerard Humphreys SC, for the Senator, said the matter is urgent and is of public importance. His client wants the case heard as soon as possible, added counsel.

The judge said that she was not in a position to fix a hearing of the motion and adjourned the matter to a date in June.

The senator claims that the purported agreement contains provisions that are “fundamentally incompatible” with the Constitution and amounts to an unlawful abdication of the Government’s duty.

To grant such a power to any foreign military, he adds, is expressly prohibited by several articles of the Irish Constitution, he claims. By entering into this agreement, he argues, the Government has “fettered the sovereignty of the State and acted outside of the powers entrusted to it by the Constitution”.

People’s consent

Failure to put the agreement before the Dáil, he claims, “amounts to a deliberate disregard” by the Government of the powers and duties conferred on it by the Constitution. This deal, he says, can only be approved by the people in a referendum.

As the people of Ireland have not assented to such a transfer of sovereign military powers, the arrangement is unlawful and ought to be restrained by the court until it obtains consent of the people, he further claims.

Senator Craughwell claims he sought information from the Government and the State about the existence of the agreement in August 2022.

His request was based on an answer given in the Dáil by then taoiseach Bertie Ahern in November 2005 to a question asked by Fine Gael’s Enda Kenny.

Mr Ahern replied that “there is co-operation and a pre-agreed understanding” when asked if the RAF would be called to intercept a hijacked aircraft over Irish airspace.