The High Court has refused the State’s request to have a preliminary legal issue determined in Senator Gerard Craughwell’s action over an alleged “secret arrangement” allowing the British Military to intercept any rogue aircraft in Irish airspace in advance of the main proceedings.
The Government and the State argued the senator’s claims could not be reviewed by the court and had asked for this issue to be determined in advance of any full hearing of the senator’s proceedings. Previously, a judge ruled this issue should be heard at the full hearing of Mr Craughwell’s case.
On Monday Mr Justice Brian Cregan ruled the court must refuse the State’s preliminary application to consider the issue of law raised by the defendants. This is because they did not accept the facts as pleaded by the senator, namely that there is an alleged international agreement between Ireland and the UK over allowing the Royal Air Force (RAF) to intercept aircraft over Irish skies that pose a threat to either country.
Some of the pleas in the case are either please of law or are mixed pleas of law and fact, he added.
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Further, the judge said, evidence was required before a court could reach a conclusion on the matters pleaded by the senator.
The judge said there was a wide divergence between the sides as to what the facts as pleaded are in the case.
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 said.
He added that the senator has pleaded his case with clarity and it is a clearly statable case that is not bound to fail.
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 agreement between Ireland and Great Britain allowing the RAF to fly into Irish airspace and “intercept and interdict” aircraft that pose a threat.
He claims any such arrangement is unlawful and unconstitutional, absent any approval by the Irish people in a referendum. He says the alleged agreement, which has never been put before the Dáil, was introduced following the September 11th, 2001, attacks on the US.
The Government and the State, which do not confirm or deny the existence of the alleged agreement, have filed a defence opposing Mr Craughwell’s action. They deny acting improperly or unconstitutionally.
The failure to put the agreement before the Dáil “amounts to a deliberate disregard” by the Government of the powers and duties conferred on it by the Constitution, he claims.
This purported deal can only be approved in a referendum, he argues. Mr Craughwell claims 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”.
Mr Craughwell, who is a former member of the Irish Defence Forces and the British Army, seeks various court declarations including that the alleged agreement is unconstitutional.
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.
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.
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