Craughwell wants early hearing for challenge to airspace ‘arrangement’ with British military

Lawyers acting for Senator Gerard Craughwell want the earliest possible hearing date for his constitutional challenge against what he claims is the “secret arrangement” allowing the Royal Air Force (RAF) to intercept any aircraft in Irish airspace that poses a threat to either country.

The independent senator claims the purported agreement between Ireland and Britain allowing the RAF to fly into Irish airspace and “intercept and interdict” aircraft that pose a threat is unlawful and unconstitutional without approval by the Irish people in a referendum.

The agreement, which he claims has never been put before the Dáil, was introduced more than 20 years ago following the September 11th, 2001, terrorist attacks in the United States.

The Government and the State have filed a defence opposing Mr Craughwell’s action. These raise several preliminary issues, including whether the senator has the legal standing to bring his challenge.

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The case is listed before the High Court on Monday, where further legal directions in the case and a potential hearing date of the action, which the senator and his legal team are seeking, are expected to be considered.

The senator wants the action heard as soon as possible.

Represented by Bowman McCabe solicitor Richard Bowman, the senator has brought proceedings claiming the purported agreement contains provisions that are “fundamentally incompatible” with the Irish Constitution and constitute 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.

By entering into this agreement, he claims, the Government has “fettered the sovereignty of the State and acted outside of the powers entrusted to it by the Constitution”.

The failure to put the agreement before the Dáil “amounts to a deliberate disregard” by the Government of the powers and duties conferred on it by the Constitution, he claims.

This deal can only be approved by the people of Ireland in a referendum, he says.

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

In his claim, Mr Craughwell says 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 Brian Cowen in November 2005 to a question asked by Fine Gael’s Enda Kenny.

He said Mr Kenny asked: “Would the RAF have to be called in from either Northern Ireland or Britain to intercept a hijacked aircraft?”

Mr Cowen replied that “there is co-operation and a pre-agreed understanding on those matters”.

Mr Craughwell claims that in response to his question about the purported arrangement, the respondents informed him last September that the “State’s consistent approach” is “not to disclose any information” as it concerns matters of “national security”.

The response added that as the questions relate to matters of national security the departments would not confirm or deny the existence of any alleged agreement or arrangement.

Following that response, the senator commenced High Court proceedings against the Irish Government, Ireland, and the Attorney General.

Mr Craughwell, who is a former member of the Irish Defence Forces and the British Army, seeks various orders and declarations.

The declarations include that the agreement with Ireland and the UK allowing armed British military aircraft to intercept aircraft over Irish airspace amounts to an impermissible dilution and breach of Articles 1, 5, 6, 13, 15, and 28 of the Irish Constitution.

He also wants the court to declare that the Government’s failure to exercise control over Ireland’s territorial waters, airspace and exclusive economic zone breaches Article 5 of the Constitution, which declares that Ireland is a sovereign independent democratic state.

He is also looking for an order restraining the Government from bringing in legislation to give effect to the agreement unless it has been passed by a referendum.