A HIGH COURT JUDGE has directed that the Government’s argument that Senator Gerard Craughwell’s action over an alleged ‘secret arrangement’ allowing the British Military to intercept aircraft in Irish airspace cannot be heard by the courts.

Should the State and the Government succeed in winning that argument then Senator Craughwell’s case over the alleged deal will fall.

The Independent senator has brought proceedings before the High Court over an alleged deal between Ireland and Great Britain allowing 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 approved by the Irish people in a referendum.

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

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

In a pre-trial motion the defendants sought permission to be allowed 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 had sought that all matter be heard by way of a single trial.

In his judgement Mr Justice Rory Mulchay said that the Government and the State’s claim – that the senator’s constitutional challenge regarding the alleged arrangement are non-justiciable – is to be heard by way of a preliminary trial.

The court said that given the weighty matters involved in the proceedings, the court should proceed with caution. 

He said that 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”.

Given the sensitivity of the matter, 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.

The merits of the defendant’s position were not what the court was being asked to decide in this application, he said.

He said that he was satisfied that 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”.

“I am satisfied that the trial of a preliminary issue is the appropriate next step to take.” he said

He added that if it does not resolve the proceedings or proves incapable of so doing, then 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 which could risk endangering the security of the State and undermining the State’s 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.”

He said that a preliminary trial with no agreed facts, even if agreed only for the purpose of trying a preliminary issue, other than the possibility of endangering the security of the State or undermining the State’s international relations in some indeterminate way was not, in the court’s view “a satisfactory way to address so far-reaching a proposition”.

The senator, who is represented in the action by Gerard Humphreys SC, instructed by Richard Bowman of Bowman McCabe solicitors, claims that the purported agreement contains provisions that are “fundamentally incompatible” with the Irish 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 Dail 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, cannot only be approved in a referendum.