State loses bid to block Senator's case over 'secret' deal with Royal Air Force

High Court reporters

The State’s effort to block the hearing of a senator’s High Court case seeking to compel the Government to reveal the existence of a secret security arrangement allowing Royal Air Force (RAF) jets to enter Irish airspace in certain circumstances has failed at the Court of Appeal.

Senator Gerard Craughwell’s case argues that an agreement exists to allow the RAF to intercept hostile aircraft posing a threat to Ireland and the UK, and the Government is in breach of the Constitution by not laying it before the Dáil.

Article 25.9.1 of Bunreacht na hÉireann states “every international agreement to which the State becomes a party shall be laid before Dáil Éireann”.

The State says it is long-standing policy to neither confirm nor deny matters regarding external security. It argues that if an air defence arrangement does exist, it does not meet the definition of an “international agreement” and therefore is not subject to Dáil scrutiny.

Last year, the State attempted to stop Mr Craughwell’s case by claiming the exercise of the State’s power’s regarding external security is not a matter for judicial review, except in cases of “clear disregard of the Constitution”. The State sought a hearing into the preliminary issue prior to a full trial.

Last July, the High Court sided with Mr Craughwell and ruled the case could proceed.

On Tuesday, Mr Justice Charles Meenan, on behalf of the three-judge Court of Appeal, dismissed the State’s challenge to the refusal to hold the preliminary hearing.

In his judgment, Mr Justice Meenan outlined the functions and prerequisites of a hearing into preliminary issues ahead of a full trial.

The judge said that, in his view, the State was in effect seeking to strike out the proceedings “under the guise” of a hearing of the preliminary issue. The State’s approach to the hearing they sought was “not permissible”, the judge said.

The judge noted the State’s submission that matters of national security and external relations merited the courts applying a “higher threshold” in considering applications related to such matters. As such, the State had argued that the High Court should have been “more receptive” to considering the preliminary issue at hand.

However, the judge said, Mr Craughwell’s right to access the courts and have his case dealt with in accordance with the law was also of importance.

“There is no doubt that issues of national security and external relations raised in these proceedings are of fundamental importance. So also is Senator Craughwell’s right of access to the courts to have his proceedings determined in accordance with law,” the judge said.

The judge noted that the courts often have to deal with various sensitive matters of security, and there are practices and procedures in place – like strict in-camera hearings – to preserve that security, while still being allowing for justice to be done.

The judge said that “it should not follow” that “different rules apply” once the State invokes issues of national security and/or external relations. For this to occur, an argument that the court’s practices and procedures are “incapable of striking the correct balance between the interests of the State and the individual litigant” would have to be established, he said.

The judge said he was provisionally of the view that the costs of the appeal should be awarded to Mr Craughwell.