Irish court dismisses appeal over alleged airspace agreement

Background and Proceedings

The case of Gerard Craughwell vs The Government of Ireland, Ireland, and the Attorney General centred on an alleged secret agreement permitting UK military aircraft to enter Irish airspace. Senator Gerard Craughwell, a member of Seanad Éireann, claimed that this agreement violated Article 29.5.1 of the Irish Constitution, as it had not been laid before Dáil Éireann.

Senator Craughwell, a former President of the Teachers Union of Ireland and a member of various Oireachtas committees, initiated the proceedings with a plenary summons on 12 September 2022. He sought a declaration that the agreement constituted an international agreement that required parliamentary scrutiny.

State's Defence and Preliminary Issue

The State's defence, delivered on 13 February 2023, argued that the exercise of executive power in matters of external security and relations was not justiciable unless there was a clear constitutional disregard. The State neither confirmed nor denied the existence of the agreement, citing national security concerns.

On 27 March 2023, the State applied for a trial of a preliminary issue, questioning the justiciability of the government's executive power in this context. The application was grounded on an affidavit by Ms. Sonja Hyland, Deputy Secretary General in the Department of Foreign Affairs, emphasising the sensitivity of the matter.

High Court's Decision

The High Court, presided by Cregan J., refused to consider the preliminary issue, citing the lack of agreed facts and the need for evidence to resolve the legal questions. The Court noted that the State's refusal to accept the facts as pleaded by Senator Craughwell hindered the trial of a preliminary issue.

Appeal and Court of Appeal's Ruling

The State appealed the High Court's decision, arguing that the trial judge erred in refusing to try the preliminary issue. The State contended that the sensitive nature of the case warranted a higher threshold for pleading material facts.

The Court of Appeal, with Meenan J. delivering the judgment, dismissed the appeal. The Court held that the absence of agreed facts precluded the trial of a preliminary issue under O. 25, r. 1 RSC. The Court emphasised that the State's approach effectively sought to strike out the proceedings without a proper basis.

Implications and Costs

The Court of Appeal's decision underscores the importance of clear and particularised pleadings in cases involving national security and international relations. The judgment also highlights the judiciary's role in balancing state security interests with individual litigants' rights.

Regarding costs, the Court upheld the High Court's order that costs of the preliminary issue be costs in the cause. The Court provisionally awarded costs of the appeal to Senator Craughwell, subject to further submissions by the parties.