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

The Government and State’s claim that the courts should not hear an action over an alleged “secret arrangement” allowing the British Military to intercept any aircraft in Irish airspace should be heard by way of a preliminary trial, a judge has ruled.

If the State and Government succeed in winning that argument the case taken by Senator Gerard Craughwell over the alleged deal will fall.

The independent senator has brought High Court proceedings claiming a deal between Ireland and Britain allows the Royal Air Force to fly into Irish airspace and “intercept” any aircraft that pose a threat.

He claims that any such arrangement is unlawful and unconstitutional unless it has been approval by the Irish people in a referendum.

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“People think ‘there are hostages – it is what it is’. But there are families who cannot carry on with their lives”

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The alleged agreement, which he claims has never been put before the Dáil, was introduced following the September 11th, 2001 attacks on the US.

The Government and State, which do not confirm nor deny the existence of the alleged agreement, oppose Mr Craughwell’s action and deny acting improperly or unconstitutionally.

In a pre-trial motion, the defendants sought permission to be allowed to argue issues, by way of a preliminary trial, including that the courts cannot review matters of external security or relations that fall within the scope of the government’s executive powers.

The senator’s legal team had opposed the motion and sought for all matters to be heard in a single trial.

In his judgment, Mr Justice Rory Mulcahy said the Government and the State’s claim that the the challenge is non-justiciable will be heard in a preliminary trial.

Given the weighty matters involved, the court should proceed with caution, he said.

The defendants have described the action as an invitation to the court to “embark upon a review of some of the most sensitive elements of the Government’s exercise of the executive power in relation to the external security and external relations of the State”.

The defendants had brought the motion seeking to have issues of non-justiciability tried by way of a preliminary hearing, he said.

Sensitivities and potential security risks raised by the defendants, the judge added, were “a critical factor” when it came to deciding to try a preliminary issue.

He was satisfied a preliminary trial on the legal issue raised should go ahead on grounds including that it “may allow the legal issues to be determined without trespassing on the sensitive security issues said to be engaged in a full defence of the proceedings”.

He added that if this does not resolve the proceedings, the question of having a modular trial, or other measures to address the peculiar sensitivities of these proceedings, can be re-visited.

The defendants had also sought to have a second related issue determined in a preliminary hearing. The matter will return before the judge at a later date for final orders.

The defendants asked if the courts are entitled to determine or review proceedings regarding external security falling within the scope of the executive power where the confirmation or denial of such could risk endangering the security of the State and undermining its international relations.

On that issue, the judge said: “It seems to me that the second issue as currently formulated is not based on sufficient agreed facts to be appropriate for determination by way of preliminary issue.”

The senator, who is represented in the action by Gerard Humphreys SC, instructed by Richard Bowman of Bowman McCabe solicitors, claims the purported agreement contains provisions that are “fundamentally incompatible” with the Constitution.

To grant such a power to any foreign military, it is claimed, “is expressed prohibited” by several articles of the Constitution.

The 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 purported deal, he says, can only be approved in a referendum.