High Court date set for challenge to alleged ‘secret arrangement’ on RAF in Irish airspace

The High Court has set a date in October for the hearing of a preliminary issue in Senator Gerard Craughwell’s constitutional challenge against an alleged “secret arrangement” allowing the British military to intercept any aircraft in Irish airspace.

The Independent Senator’s proceedings are 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.

He claims any such arrangement is unlawful and unconstitutional, absent any approval by the Irish people in a referendum. The alleged agreement, which he claims has never been put before the Dáil, was introduced following the September 11th, 2001, terrorist attacks in the United States.

[ US Navy ship off Cork shows Irish waters of interest to all military powers, says Senator ]

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

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It denies acting improperly or unconstitutionally.

Mr Justice Brian O’Moore fixed the action for two days in early October for the hearing of a preliminary issue raised in the proceedings by the State.

The respondent’s claim in the motion is that the Senator’s claims are not justiciable, meaning they cannot be reviewed or determined by a court of law.

The State 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.

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

Should the State succeed in its pre-trial application, Mr Craughwell’s case will fall.

The Senator’s legal team is opposing the motion.

The Senator, 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 Irish Constitution.

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

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.

Mr Craughwell claims the “State’s consistent approach” in response to questions on this topic is “not to disclose any information”, as it concerns matters of “national security”.

He also claims that in response to his questions, Government departments will “not confirm or deny the existence of any alleged agreement or arrangement”.

[ Secret Anglo-Irish air defence deal ‘fully consistent with neutrality’, says Martin ]

As a result, he has brought proceedings against the Government of Ireland, Ireland and the Attorney General, where he seeks various orders and declarations including that the agreement is unconstitutional.

Mr Craughwell, a former member of the Irish Defence Forces and the British Army, as well as ex-president of the TUI, seeks various declarations from the court including that the agreement with Ireland and the UK allowing armed British military aircraft to intercept aircraft over Irish airspace amounts to breaches of the Irish Constitution.

He also seeks a declaration that the Government’s failure to exercise control over Ireland’s territorial waters, airspace and exclusive economic zone breaches Article 5 of the Irish Constitution.

He further seeks an order restraining the Government from bringing in legislation to give effect to the agreement, unless it has been passed by a referendum.