The State has lost its appeal to block a case seeking to compel officials to confirm if Ireland has a secret deal with Britain to allow the RAF to enter Irish airspace in the event of a terrorist or international attack.
The decision was confirmed in a Court of Appeal ruling on a case involving allegations of a "secret deal" dating back to the aftermath of the 11 September 2001 attacks on the US; official refusals to confirm or deny the deal's existence for national security reasons; and claims any such agreement would be unconstitutional if it exists.
The long-standing case was taken by Independent senator Gerard Craughwell, who has alleged there is a secret deal between Ireland and Britain which allows the RAF to enter Irish airspace and effectively police the location in the event of a terrorist or international attack.
It is Senator Craughwell's view that this alleged deal was made in the aftermath of the 11 September 2001 attacks on the US, a view his legal team argues was indicated by a Dáil statement from then taoiseach Bertie Ahern to then Fine Gael leader Enda Kenny on 16 November 2005, when Mr Ahern said "there is co-operation and a pre-agreed understanding on those matters".
While the State formally neither confirms nor denies the existence of any such agreement, it is Senator Craughwell's view that such a deal would be in breach of Article 29.5.1 of the Constitution, which states: "Every international agreement to which the State becomes a party shall be laid before Dáil Éireann."
Senator Craughwell's legal team have previously argued that any alleged deal is an international agreement, and that there is no evidence that it was ever laid before Dáil Éireann for a vote or lodged with the United Nations which the State is obliged to do in terms of any treaty.
The full Court of Appeal ruling dismissing the State's appeal
In July 2024, the High Court dismissed the State's application to have the preliminary issue as to whether the case could be ruled on by a court in advance of the main proceedings.
The State appealed this decision to a three judge Court of Appeal hearing, arguing the matters were political and not legal.
The State also argued that while it neither confirms nor denies the existence of the agreement on the grounds that any information about such an agreement, if it exists, would potentially risk national security, it specifically rejects suggestions of any breach of the Constitution.
However, in a 20-page Court of Appeal ruling published on the Court Service website, the court has dismissed this view, concluding that "Senator Craughwell has been successful in resisting the appeal".
The three judge ruling examining process and procedure regarding a preliminary hearing, ruled against the State's motion for a strike out of proceedings.
It also said that in its view the State using a procedural matter to find a way to strike out the case, which it said was not allowed.
The court ruling also said additional restrictions could be placed on potential future proceedings to ensure national security issues are addressed, and that a balance needs to be struck between highly sensitive information if it exists, and the right of the litigant Senator Craughwell to seek this information.
The State now has 14 days in which to appeal this judgement if it wishes to do so, at which point Senator Craughwell will also be given the option of an appeal within 14 days if he wishes to do so.
In a statement, Senator Craughwell said:
"The State have failed on three occasions trying to dismiss the case on procedural grounds, and they have been rejected by the High Court and the Court of Appeal.
"I hope the State will now deal with the substantive matters.
"These are important issues of security and defence and respect for the Irish Constitution.
"There is far more openness and transparency from the British government.
"The Irish people have a right to know what is going on, and I am looking forward to getting on with the case."
