A State application to have a preliminary issue of law determined ahead of Senator Gerard Craughwell's action over an alleged 'secret arrangement' allowing the British military to intercept any rogue aircraft in Irish airspace has been dismissed by the High Court.
The Government and the State argued in the pretrial motion that the Senator's claims cannot be reviewed or determined by a court of law, and had asked the court to hear this issue in advance of the full hearing of the Senator's proceedings.
They also claimed the courts cannot review matters of external security that fall within the scope of the government's executive power, where the denial or confirmation of any such arrangement could endanger State security and its international relations.
The State and the Government, who are defendants in the Senator's constitutional challenge, asked the High Court to hear and determine this preliminary issue in advance of the Senator's main action.
The Senator, who is represented in the action by Gerard Humphreys SC, with Eoin O'Connor Bl instructed by Richard Bowman of Bowman McCabe solicitors, had opposed the motion for a separate preliminary hearing..
In his ruling on the preliminary application by the Government of Ireland, Ireland and the Attorney General, Mr Justice Brian Cregan said that the court had to refuse to consider the issue of law raised by the defendants.
This, he said, was because the State and the government had not accepted the facts as pleaded by the Senator, namely that there is an alleged international agreement between Ireland and the UK over allowing the RAF to intercept aircraft over Irish skies that pose a threat to either country.
The court said that evidence was required before a court could reach a conclusion on the matters pleaded by the Senator.
The judge said that there was a wide divergence between the sides as to what the facts as pleaded are in the case.
The court, he said, was faced with a situation in which the defendants were not accepting the facts as pleaded by the Senator. However, the judge said that the case law was clear that the acceptance of a plaintiff's case as pleaded is a clear precondition for any trial of a preliminary issue.
He added that the Senator has pleaded his case with clarity, and it is a clearly stateable case, which he said is not bound to fail.
In all the circumstances, the judge said that the application for the trial of the preliminary issue "must be refused."
The judge adjourned the matter for a week, to allow the sides to consider his decision.
The Independent Senator's proceedings are over what he claims is an alleged agreement between Ireland and Britain allowing the Royal Air Force to fly into Irish airspace and "intercept and interdict" aircraft that pose a threat.
He claims that any such arrangement is unlawful and unconstitutional, absent any approval by the Irish people in a referendum. The alleged agreement, which he claims has never been put before the Dáil, was introduced following the September 11th, 2001 attacks in the US.
The Government and the State, which do not confirm nor deny the existence of the alleged agreement, have filed a defence opposing Senator Craughwell's action.
It denies acting improperly or unconstitutionally.
The Senator claims that the purported agreement contains provisions that are "fundamentally incompatible" with the Irish Constitution.
To grant such a power to any foreign military, he adds, "is expressed prohibited" by several articles of the Constitution.
The failure to put the agreement before the Dáil he claims "amounts to a deliberate disregard" by the Government of the powers and duties conferred on it by the Constitution.
This purported deal, he says, cannot only be approved in a referendum.
Senator Craughwell claims that the "State's consistent approach" in response to questions on this topic is "not to disclose any information" as it concerns matters of "national security."
He also claims that in response to his questions government departments will "not confirm nor the deny the existence of any alleged agreement or arrangement."
As a result, he has brought proceedings against the Government of Ireland, Ireland and the Attorney General where he seeks various orders and declarations including that the agreement is unconstitutional.
Senator Craughwell, who is a former member of the Irish Defence Forces and the British army, as well as being an ex-President of the TUI, seeks various declarations from the court including that the agreement with Ireland and the UK allowing armed British military aircraft to intercept aircraft over Irish airspace amounts to breaches of the Irish Constitution.
He also seeks 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.
He further seeks an order restraining the government from bringing in legislation to give effect to the agreement, unless it has been passed by a referendum of the people.
