LAST UPDATE | 13 hrs ago

THE STATE HAS failed in its Court of Appeal efforts to block a Senator’s case to compel the Government to confirm it has a secret deal with the British to police Irish airspace. 

Senator Gerard Craughwell had brought proceedings before the High Court previously over the alleged deal between Ireland and Britain allowing the Royal Air Force to fly into Irish airspace and “intercept” any aircraft that pose a threat.

He claimed that any such arrangement is unlawful and unconstitutional, unless it has been approved by the Irish people in a referendum. International agreements must be put to the people in a vote following a ruling in Crotty v An Taoiseach.

The alleged agreement, which Craughwell claims has never been put before the Dail, was introduced following the 11 September attacks in New York in 2001.

The Government and the State, which have not confirmed or denied the existence of the alleged agreement, opposed the Senator’s action and deny acting improperly or unconstitutionally.

In July last year, the High Court dismissed the State’s application to have the preliminary issue as to whether the case could be ruled on by a court in advance of the main proceedings.

The State had appealed to the Court of Appeal that decision and Brian Kennedy SC, for the Government and the Attorney General, told the three-judge panel that the claims made by Craughwell were “not judicable” and the matters claimed in court papers were political and not legal ones.

This morning in a judgment published on the Courts Service website, the Court of Appeal rejected that argument and found in favour of the senator. 

In a complex judgment, looking at process and procedure in regard to a preliminary hearing ahead of a full hearing, Judges Charles Meehan, MacGrath and Collins ruled against the State’s motion for a strike out of the proceedings. 

Senator Gerard Craughwell Rollingnews.ie Rollingnews.ie

The judgment was delivered by Mr Justice Charles Meenan who said that the State was, in effect, using a procedural matter to find a way to strike out Craughwell’s case. He said that this could not be allowed. 

The judgment also said that any concerns the State have around maintaining national security in the full hearing could be protected by putting strict restrictions on the proceedings. 

The State, in its pleadings, had said that matters of security should carry a “higher threshold” but the Court of Appeal dismissed this as it sought to balance the Senator’s rights to access the courts. 

The court said that there are procedures in place to protect sensitive matters and that the courts have used these in protecting witness protection programmes and information from garda informers. 

The court also said that the State is likely to invoke “public interest privilege” in efforts to withhold giving the Senator’s legal team access to documents to prepare its case. The judgment finds that there would be a need to strike a balance to maintain the secrecy of the information with the litigants’ efforts to gain necessary information in this regard. 

The judgment stressed repeatedly that the State cannot claim that there are different rules for it when it is before the courts including when it is in regard to matters of national security or “external relations”. 

The judgment also awarded costs against the State. The parties involved have a total of 28 days to make submissions in this regard.  

Following the judgment Senator Craughwell welcomed the ruling. 

“The State have failed on three occasions trying to dismiss the case on procedural grounds, and they have been rejected by the High Court and the Court of Appeal. I hope the State will now deal with the substantive matters.

“These are important issues of security and defence and respect for the Irish constitution.

“There is far more openness and transparency from the British Government. The Irish people have a right to know what is going on, and I am looking forward to getting on with the case,” he said.