The Government may seek to employ executive privilege to prevent the release of details concerning its air defence arrangements with the UK.
Brian Kennedy SC, for the State, made the comments in the Court of Appeal in response to a case taken by a member of Seanad Éireann.
Senator Gerard Craughwell’s case aims to compel the Government to reveal the existence of a secret arrangement which allows Royal Air Force (RAF) jets to enter Irish airspace to intercept hostile aircraft posing a threat to Ireland or the UK.
Mr Craughwell argues such an agreement exists and the Government is in breach of the Constitution by not laying it before the Dáil. Article 25.9.1 states “every international agreement to which the State becomes a party shall be laid before Dáil Éireann”.
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The State says it is long-standing policy to neither confirm nor deny matters regarding external security. It argues that if an air defence arrangement does exist, it does not meet the definition of an “international agreement” and therefore is not subject to Dáil scrutiny.
Ireland possesses almost zero capability to intercept hostile or hijacked aircraft. Taoiseach Micheál Martin has said much more investment is needed in national security in the face of rising international threats.
However, while efforts are ongoing to acquire a military radar system to detect potential airborne threats, there are no plans to purchase jet interceptor aircraft capable of responding to such incursions.
In 2023, The Irish Times revealed the existence of an secret arrangement between Dublin and London, dating to 1952, which allows the RAF operate in Irish skies in certain circumstances.
The case has significant implications for Ireland’s stated claim of military neutrality. It is the Government’s long-standing position that Ireland does not join military alliances.
Last year, the State attempted to stop Mr Craughwell’s case by claiming the exercise of the State’s power’s regarding external security is not a matter for judicial review, except in cases of “clear disregard of the Constitution”.
In a preliminary hearing last July, the High Court sided with Mr Craughwell and ruled the case could proceed.
The State lodged an appeal which was heard by a three-judge Court of Appeal on Friday. After hearing arguments, the court reserved its judgment to a later date.
Much of the Senator’s case is based on comments made in the Dáil by then taoiseach Bertie Ahern.
When asked if the RAF would intercept aircraft over Ireland, Mr Ahern said there is “co-operation and a pre-agreed understanding on those matters”.
Mr Kennedy said the characterisation of these comments as an international agreement is misleading. International agreements are specifically defined by the 1969 Vienna Convention on the Law of Treaties and must be registered with the United Nations. Ireland has registered no such agreement with the UN, counsel said.
He cited examples of arrangements with other countries which courts have ruled do not constitute “international agreements”.
Mr Kennedy said he is “unashamedly trying to stop the complainant in their tracks at an early stage” before the matter comes to a full hearing.
He conceded that his case is in “serious trouble” if the court finds the State entered into an “international agreement” as it is formally defined.
The court asked if the State may rely on executive privilege if the cases goes to a full hearing, meaning it would potentially not have to hand over details of any air defence arrangement.
Mr Kennedy said “he anticipated there will be issues around discoverability”.
The courts have always shown a high degree of deference to the State when it comes to matters of executive powers and national security. The bar for judicial interference in such matters is very high and Mr Craughwell has not cleared it, counsel said.
Mr Craughwell has said he has taken the case to highlight the State’s long-standing lack of investment in defence. He said wants any air defence arrangement with the UK to be brought into the open and ratified by the Dáil.
