The High Court has ordered a preliminary trial of whether Gerard Craughwell’s pleadings disclose a cause of action in his constitutional challenge concerning an alleged agreement allowing UK military aircraft to enter Irish airspace and intercept or interdict aircraft said to pose a threat to Ireland or the UK.
In a judgment delivered on 12 October 2023, Mr Justice Rory Mulcahy granted the Government defendants’ application under Order 25, rule 1 of the Rules of the Superior Courts. He amended the proposed question to ask whether the Government’s exercise of executive power in relation to external security and external relations is reviewable by the court “on the basis of the facts as pleaded”.
The order concerns the next procedural step; it does not decide whether the alleged agreement exists or whether the Government acted unconstitutionally. The defendants have neither confirmed nor denied the agreement and deny that any constitutional duty to lay it before the Dáil has arisen. They also deny the alleged constitutional breaches. The judgment did not determine those disputes.
Craughwell, an independent member of Seanad Éireann, argues that the alleged arrangement is an international agreement that should have been laid before the Dáil under Article 29.5.1° of the Constitution. He also alleges breaches of other constitutional provisions. He relied, among other matters, on a 2005 statement by the then Taoiseach referring to “co-operation and a pre-agreed understanding” about intercepting a hijacked aircraft, and on a UK ministerial response stating that UK military aircraft do not enter Irish sovereign airspace for operational purposes without the Irish Government’s express prior agreement.
The Government defendants argued that executive action concerning external security and external relations is reviewable only in cases of clear disregard of the Constitution, and that the claim did not plead facts capable of meeting that threshold. They said a preliminary trial could address justiciability before discovery raised security concerns. Craughwell disputed the proposed threshold and opposed a preliminary trial, while indicating openness to measures such as an in-camera or modular hearing.
Justice Mulcahy considered the first question suitable because it could test whether the pleadings disclose a cause of action without requiring the court to resolve the sensitive underlying security issues. He said Craughwell could raise at that trial his arguments about the effect of the defendants’ policy of neither confirming nor denying the agreement and its compliance with pleading rules.
The judge refused the defendants’ request to try a second, broader question: whether court review is available where it could risk endangering State security or undermining international relations. He found it too wide and unsupported by sufficient agreed facts for preliminary determination. The court will list the case for mention so the parties can finalise the order and, if required, receive directions.