High Court reporters
An independent senator has launched a constitutional challenge to what he claims is a secret arrangement allowing British military to intercept any aircraft in Irish airspace that poses a threat.
Now lawyers acting for Senator Gerard Craughwell want the case heard as soon as possible.
The senator claims that the purported agreement between Ireland and Great Britain allowing the Royal Air Force to fly into Irish airspace and "intercept and interdict" aircraft that pose a threat is unlawful and unconstitutional and absent any approval by the Irish people in a referendum.
The agreement, which he claims has never been put before the Dáil, was brought in over twenty years ago following terrorist attacks in the United States.
The Government and the State have filed a defence opposing Senator Craughwell's action, which raises several preliminary issues, including if the Senator has the legal standing to bring his challenge.
The case is listed before the High Court on Monday, where further legal directions in the case and a potential hearing date of the action, which the senator and his legal team are seeking, are expected to be considered.
The senator wants the action heard as soon as possible.
Represented by Richard Bowman of Bowman McCabe solicitors, the senator has brought proceedings where he claims that the purported agreement contains provisions that are "fundamentally incompatible" with the Irish Constitution and constitutes an unlawful abdication of the Government's duty.
To grant such a power to any foreign military, he adds, "is expressed prohibited" by several articles of the Irish Constitution.
By entering into this agreement, he claims, that the Government has "fettered the sovereignty of the State and acted outside the powers entrusted to it by 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 deal, he says can only be approved by the people of Ireland in a referendum.
As the people of Ireland have not assented to such a transfer of sovereign military powers, the arrangement is unlawful and ought to be restrained by the High Court until it obtains the consent of the people, he further claims.
In his statement of claim Senator Craughwell says that he sought information from the Government and the State about the existence of the agreement in August 2022.
His request was based on an answer given in the Dáil by the then Taoiseach Brian Cowen in November 2005 to a question asked by Fine Gael's Enda Kenny.
He said the question asked was "Would the RAF have to be called in from either Northern Ireland or Britain to intercept a hijacked aircraft?"
Mr Cowen replied that "there is co-operation and a pre-agreed understanding on those matters" before adding that Mr Cowen could then bring the then leader of the opposition "through that at some stage"
Senator Craughwell claims that in response to his question about the purported arrangement the respondents informed him last September 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."
The response added that as the questions relate to matters of national security the Departments would "not confirm nor deny the existence of any alleged agreement or arrangement."
Following that response the senator commenced High Court proceedings against the Government of Ireland, Ireland and the Attorney general where he seeks various orders and declarations including that the agreement is unconstitutional.
In his action 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 Teachers Union of Ireland, seeks various declarations from the court.
The declarations include that the agreement with Ireland and the UK allowing armed British military aircraft to intercept aircraft over Irish airspace amounts to an impermissible dilution and breach of Articles 1, 5, 6, 13, 15, and 28 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 Constitution which declares that Ireland is a sovereign independent democratic state.
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.