A HIGH COURT JUDGE has ruled against the State’s efforts to stymie a case taken by a Senator in regard to an alleged ‘secret arrangement’ allowing the British Military to intercept aircraft in Irish airspace.
Senator Gerard Craughwell has brought proceedings before the High Court over the 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 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.
That case’s ruling established the law that any change to the European Union treaty with Ireland would require a vote of the people.
The alleged agreement, which he 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 Craughwell’s action and deny acting improperly or unconstitutionally.
Craughwell, who is represented by Eoin O’Connor BL and Senior Counsel Gerard Humphreys, was in court for today’s ruling.
The judgment is centred around the State’s application to have a preliminary issue of law determined before a full trial. The Government side argued that the case could not be heard by a court of law, because in legal terms that the case is “not justiciable”.
The State also argued that the Irish courts cannot review matters of external security. The pleadings from the Government side argued that this fell only within the scope of the Government’s powers and was not for the court to review.
The State had previously told the court that a denial or confirmation of an arrangement like the supposed RAF deal could endanger national security and its international relations.
If the State was successful in the preliminary hearing, Craughwell’s action would have ended.
In his ruling today Mr Justice Brian Cregan said that the court permitted the hearing of the full case.
The judge said this was due to the failure of the State to accept the facts as pleaded by Craughwell in the case that there is an alleged international agreement between Ireland and the UK regarding air policing.
The judge said that the court must be permitted to hear evidence in court – he said that it was within the scope of the court to hear full evidence from Craughwell.
He has adjourned the case until 15 July to give the sides a chance to consider the decision of the court. There will also be applications in relation to costs.
The senator is a former member of the Irish Defence Forces and the British Army.
He is seeking declarations from the court including a declaration that the alleged air policing deal be declared unconstitutional.
He is also seeking 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. This article deals with Irish sovereignty.
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