LAWYERS FOR THE STATE have told a Judge that the High Court has no right to hear a case in which a senator alleges that Ireland has a deal with Britain to police Irish airspace. 

The case, taken by Senator Gerard Craughwell, is a constitutional challenge against what he claims is the ‘secret arrangement’ between the British and Irish Governments.

The Independent senator claims the deal to “intercept and interdict” suspicious aircraft is unlawful and unconstitutional and is absent of any approval by the Irish people in a referendum.

The Government and the State, which do not confirm nor deny the existence of the alleged agreement, have filed a defence opposing Craughwell’s action.

The submission denies any suggestion it has acted improperly or unconstitutionally.

The State lawyers said that the Government’s defence is that the High Court cannot determine the case. 

The barrister claims 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.

Should the state succeed in its pre-trial application, Craughwell’s case will fall. The Senator’s legal team are opposing the motion.

The case was briefly mentioned before Ms Justice Eileen Roberts at the High Court on Monday, who was told that the pre-trial motion is ready to proceed to a hearing.

Brian Kennedy SC for the respondents said that issue should take two days to hear.

Gerard Humphreys SC for the senator said that the matter is urgent, and is of public importance. His client wants the case heard as soon as possible.

Ms Justice Roberts said that she was not in a position to fix a hearing of the motion, and adjourned the matter to a date in June. It is hoped that a hearing date will be fixed when the matter returns before the court.

Abdication

Craughwell’s case claims that the purported agreement contains provisions that are “fundamentally incompatible” with the Irish Constitution and constitutes an unlawful abdication of the Government’s duty.

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

The independent senator claims that the Government has “fettered the sovereignty of the State and acted outside of the powers entrusted to it by the Constitution” by entering into the agreement. 

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.

Craughwell’s case is that the deal should have been put before the people in a referendum and because there was no vote on the matter that the arrangement is unlawful. 

He has asked the court to restrain the alleged deal until it obtains the consent of the Irish people. He has also asked the High Court to make declarations that the deal is unconstitutional.

Craughwell claims that he had sought information on the alleged agreement in August 2022. His pleadings state that he did this after Fine Gael’s Enda Kenny asked then Taoiseach Brian Cowan in November 2005 if there was such a deal. 

The court heard that Cowan replied that “there is co-operation and a pre-agreed understanding” when asked if the RAF would be called to intercept a hijacked aircraft over Irish airspace.

Craughwell claims that 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 nor the deny the existence of any alleged agreement or arrangement.”

Craughwell is a former member of the Irish Defence Forces and the British Army, as well as being an ex-President of the TUI.