The State has contended the courts cannot consider Senator Gerard Craughwell's constitutional challenge against what he claims is the "secret arrangement" allowing the British military to intercept any aircraft in Irish airspace that poses a threat to either country.
The Independent senator has brought proceedings over what he claims is an agreement between Ireland and Great Britain allowing the RAF to fly into Irish airspace and "intercept”aircraft that pose a threat. He claims the agreement is unlawful and unconstitutional, without a referendum.
The agreement, which he claims has never been put before the Dáil, was introduced following the 9/11 attacks in the United States.
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 any suggestion it has acted improperly or unconstitutionally.
State security
It has brought a pre-trial motion where it claims that any exercise of the Government's power in relation to the State's external relations and security, in the absence of any material facts capable of establishing a clear breach of the constitution, are not justiciable, meaning that such it cannot be reviewed or determined by a court of law.
It also submits that 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.
Should the State succeed in its pre-trial application, Senator Craughwell's case will fall.
The Senator's legal team are opposing the motion.
The case was briefly mentioned before Ms Justice Eileen Roberts at the High Court on Monday. The judge was told that the pre-trial motion is ready to proceed to a hearing.
The court heard the issue should take two days to hear.
Ms Justice Roberts said that she was not in a position to fix a hearing of the motion, and adjourned the matter to a date in June.
It is hoped that a hearing date will be fixed when the matter returns before the court.
Irish Constitution
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 alleged 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 of the powers entrusted to it by the Constitution."
The failure to put the agreement before the Dail 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 cannot only be approved by the people of Ireland in a referendum.
Senator Craughwell claims 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.
Mr Cowen replied that "there is co-operation and a pre-agreed understanding" when asked if the RAF would be called to intercept a hijacked aircraft over Irish airspace.
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."
Arising out of that response 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 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.
