The High Court has refused a Government application to have a legal question decided in advance of the full trial of a case alleging that a secret agreement allows Royal Air Force aircraft to enter Irish airspace and intercept aircraft considered a threat.
Mr Justice Cregan’s judgment, delivered on 8 July 2024, did not determine whether such an agreement exists or whether any arrangement would qualify as an international agreement. The Government defendants neither confirmed nor denied its existence. The judge said the preliminary hearing could not proceed because they did not accept the plaintiff’s pleaded case on those central points and further evidence would be needed.
The case was brought by Gerard Craughwell, an independent member of Seanad Éireann and a citizen of Ireland. He alleges that Ireland and the UK made the arrangement after the 11 September 2001 attacks in the United States. He claims it is an international agreement that should have been laid before Dáil Éireann under Article 29.5.1 of the Constitution, and that failing to do so amounted to disregard of constitutional duties.
The Government defendants deny that the constitutional duty arose and require the plaintiff to prove the alleged agreement. They plead that the Government neither confirms nor denies matters concerning external security and relations where disclosure could risk security or international relations. In evidence, a Department of Foreign Affairs deputy secretary general said the Taoiseach’s 2005 reference to “cooperation and a pre-agreed understanding” did not confirm a legally binding international agreement of the kind alleged. The plaintiff also relied on a 2022 answer by the UK defence minister stating that UK military aircraft would not enter Irish sovereign airspace for operational purposes without the Irish Government’s express prior agreement.
The preliminary question, as amended by agreement, was whether the exercise of Government executive powers concerning external security and relations was justiciable or reviewable on the facts pleaded. Justice Cregan held that a preliminary issue requires the moving party to accept the opposing party’s pleaded material facts, at least for that hearing. The defendants accepted that no arrangement of the alleged nature had been laid before the Dáil, but did not accept that an agreement existed or that it was an international agreement.
The judge added that, if those pleaded points had been accepted, he would have considered whether an alleged failure to lay an international agreement before the Dáil raised a justiciable question of “clear disregard” of the Constitution. He did not decide that issue or make findings on the existence or legal status of any arrangement. The application to try the preliminary issue was refused; the underlying case was not determined.