High Court: Government refused trial on preliminary issue concerning ‘secret’ RAF agreement with UK

High Court: Government refused trial on preliminary issue concerning 'secret' RAF agreement with UK

The High Court has refused the trial of a preliminary issue as to whether the exercise of the executive power concerning external security and external relations was justiciable by the courts.

Delivering an ex tempore judgment for the High Court, Mr Justice Brian Cregan considered inter alia that the plaintiff, Senator Gerard Craughwell, had pleaded his case with “certainty and clarity” and decided that in circumstances where the defendants did not accept the facts as pleaded by the plaintiff, no trial of a preliminary issue could occur.


On 12 September 2022, the plaintiff senator issued plenary proceedings alleging inter alia that the Irish government entered into a ‘secret’ agreement with the UK following the 9/11 attacks under which the Royal Air Force (RAF) could patrol Irish airspace and intercept any aircraft posing a threat to Ireland or the UK.

The plaintiff contended that the then-Taoiseach in the course of a Dáil debate on 16 November 2005, replied to the question “would the RAF have to be called in from either Northern Ireland or Britain to intercept a hijacked aircraft?” by explaining that “there is cooperation and a pre-agreed understanding on those matters”.

The plaintiff claimed that the agreement, which had not come before the Dáil, violated inter alia Article 29.5.1 of the Constitution, which provides that every international agreement to which the State becomes party shall be laid before Dáil Éireann. The plaintiff contended that in failing to lay the agreement between the two sovereign states before Dáil Éireann, the government acted in clear disregard of the Constitution.

The defendants contended that save in cases of clear disregard of the Constitution, the exercise of the executive power of the State in relation to external security and relations was not justiciable or otherwise amenable to review by the courts.

The government in its defence neither confirmed nor denied the existence of the ‘secret’ agreement and brought an application pursuant to Order 25, rule 1 of the Rules of the Superior Courts 1986 (as amended) for a trial of two preliminary issues, which was narrowed to one issue — that the exercise of the government’s executive powers in relation to external security and relations of the State was not justiciable or amenable to judicial review on the basis of the facts as pleaded.

The High Court

Mr Justice Cregan noted at the outset that he was faced with a situation in which the defendants were not accepting the facts as pleaded by the plaintiff, a precondition for a trial of a preliminary issue.

The court considered the legal principles concerning applications for preliminary issues, examining authorities including McCabe v Ireland [1999] 4 IR 151, Tara Exploration and Development Company Ltd v Minister for Industry and Commerce [1975] IR 242 and Campion v South Tipperary County Council [2015] IESC 70.

Mr Justice Cregan stated that the defendants’ application was “unusual” in that they did not accept the facts as pleaded by the plaintiff, instead arguing that his pleas were mere inferences from facts or mixed questions of fact and law.

Being satisfied that the plaintiff had pleaded the material facts of his case “with certainty and clarity”, the judge opined that “there is no doubt what the question at issue between the parties is”. The plaintiff had made “three fundamental pleas” as follows:

  1. that there is an “agreement” between Ireland and the U.K. that the R.A.F. has been granted permission to intercept aircraft over Irish airspace;
  2. that this agreement is an “international agreement”;
  3. that the failure to lay this agreement before the Dáil is a clear breach of Article 29.5.1 of the Constitution.

Considering the first of those pleas, the court took the view that the defendants’ submission that same was an inference from what was said by the Taoiseach was incorrect, instead being “a legal characterisation of facts” and a “plea of law or a mixed plea of law and fact”.

Mr Justice Cregan expressed that in his view, the Taoiseach’s words in the Dáil “should be characterised as a piece of evidence to support this plea of an ‘agreement’” and that the defendants’ refusal, rightly or wrongly, to accept this characterisation precluded the grant of an application for a trial of a preliminary issue.

In response to the defendants’ submission that the plaintiff had not pleaded the alleged agreement with sufficient particularity, the judge stated that “that cannot be avoided in circumstances where the plaintiff pleads that it is a ‘secret agreement’ and the defendants themselves refuse to admit or deny whether such an agreement is in existence…the defendants have full knowledge of the alleged agreement”.

As to the second plea that the secret agreement constituted an international agreement, the court highlighted again that “insofar as the plaintiff’s plea is a plea of law (or a mixed plea of fact and law), and insofar as it is not accepted by the defendant, then it requires further evidence and again is not suitable for the trial of a preliminary issue”.

Finding that the defendants had both accepted that an agreement of the nature contended for by the plaintiff was never laid before Dáil Éireann, but refrained from an admission that such an agreement exists or was an “international agreement”, Mr Justice Cregan determined that “this agreement about this fact, on its own, is clearly not sufficient to justify the trial of the preliminary issue in the absence of an acceptance by the defendants of the first two foundational pleas”.

The court commented that many of the defendants’ submissions appeared to aim at the proposition that the plaintiff’s case was unstateable or bound to fail, and at times the defendants’ application seemed to take the form of an application to strike out the proceedings as not disclosing a reasonable cause of action or being bound to fail.

Mr Justice Cregan also rejected that the preliminary issue was the state of the plaintiff’s pleadings, finding that the plaintiff’s was “clearly a stateable case and it is not bound to fail”.

In the event that his conclusion was incorrect, Mr Justice Cregan considered the situation if the defendants had accepted the facts as pleaded. Noting that the issue would have turned on whether the failure to lay an international agreement before the Dáil amounted to a clear disregard of Article 29.5.1, the court focused on Crotty v An Taoiseach [1987] IR 713 that the government “is not immune from judicial control, if it acts in a manner, or for a purpose, which is inconsistent with the Constitution”.

The court considered that the plaintiff’s statement of claim was sufficiently pleaded so as to satisfy him that there may be a “clear disregard” of the Constitution, although it could not answer the question as to whether it did amount to a “clear disregard” as same was a matter for the plenary trial.

Finally, the court outlined that despite the order of Mr Justice Rory Mulcahy of 16 November 2023 directing the trial of a preliminary issue, “this does not mean that this court cannot consider afresh whether a trial of a preliminary issue is possible based on further consideration of the matter” and having regard to L.M. v Commissioner of An Garda Síochána [2015] 2 IR 45, “it is not possible to give the sort of clear and unequivocal answer to the issue which would dispose of the case or any of the issues in the case”.


Accordingly, the High Court refused to defendants’ application for the trial of a preliminary issue.

Gerard Craughwell v The Government of Ireland & Ors, High Court, 8 July 2024

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