The Court of Appeal has dismissed an appeal by the Government of Ireland, Ireland and the Attorney General over whether a legal issue in Senator Gerard Craughwell’s case should be heard before a full trial.
Craughwell alleges that Ireland and the United Kingdom have an agreement allowing Royal Air Force aircraft to enter Irish airspace to intercept or interdict aircraft considered a threat. He claims the agreement is an international agreement that should have been laid before Dáil Éireann under Article 29.5.1 of the Constitution. The State’s defence neither confirms nor denies that an agreement exists and denies that the constitutional duty arose.
The appeal concerned procedure, not whether those allegations are true. The State had sought a preliminary hearing on whether the Government’s exercise of executive power over external security and relations was reviewable by the courts on the facts pleaded. In October 2023, the High Court directed a preliminary issue. But at the hearing in July 2024, a different High Court judge refused to consider it, finding that the State had not accepted the pleaded facts and that evidence was needed.
In a judgment delivered on 18 March 2025, the Court of Appeal said a preliminary issue under the relevant court rule requires agreed material facts, or facts accepted for that hearing. The State had not agreed to treat Craughwell’s allegations as true for that purpose. The court also said the statement of claim contained no material facts showing that the alleged agreement legally bound the State. A 2005 Dáil statement referring to “cooperation and a pre-agreed understanding” did not, in the appeal judge’s view, supply such facts.
The court rejected the State’s argument that the sensitivity of national security and external relations justified a different approach. It said courts can use procedures such as in-camera hearings and can assess public-interest privilege claims over discovery while protecting confidential material. It did not find that such procedures would resolve every issue in this case.
The appeal was dismissed. The Court of Appeal left in place the High Court’s order that the costs of the preliminary-issue hearing be costs in the cause. It gave a provisional view that Craughwell should receive his appeal costs, while allowing the State 14 days to make written submissions disputing that view and Craughwell a further 14 days to respond.
The Court of Appeal did not determine whether an Ireland–UK agreement exists, whether it is legally binding, or whether Article 29.5.1 applies. The underlying case was not dismissed by this appeal.