A SENATOR’S CLAIM that a ‘secret arrangement’ exists allowing the RAF to intercept any rogue aircraft in Irish airspace is a “bare assertion” without sufficient facts to ground it and his action against the State cannot be reviewed or determined by a court of law, an appeal hearing has been told.

The case was brought before the High Court by Independent Senator and former soldier Gerard Craughwell, who claims that any such arrangement, or “international agreement”, between the two governments is unlawful and unconstitutional, unless it has been approved by the Irish people in a referendum.

In July last year, the High Court dismissed the State’s application to have the preliminary issue as to whether the case was justiciable at all heard in advance of the main proceedings.

The State has appealed that decision and Brian Kennedy SC, for the Government and the Attorney General, today told the three-judge Court of Appeal that the claims made by Sen Craughwell were “not judicable” and the matters claimed in court papers were political and not legal ones.

Mr Kennedy said the State had been put in a “difficult position”, as its policy regarding sensitive State security meant it could neither confirm nor deny the claims of Sen Craughwell.

Counsel said the State denied acting improperly or unconstitutionally, as claimed in Sen Craughwell’s action.

Mr Kennedy claimed that material facts had to be entered into the pleadings in the case for it to be allowed to be heard. Counsel said this had not been done by the plaintiff, and that the claims of fact in the pleadings were insufficient to meet the threshold for the case going to trial.

Sen Craughwell claims that while the government has never confirmed or denied the alleged international agreement with the British military, in 2005 then-Taoiseach Bertie Ahern told the Dáil there was “cooperation and a pre-agreed understanding on those matters”.

Mr Kennedy said the Taoiseach had not referred to an “agreement” at all and said the only fact Sen Craughwell had produced in the case was that there had been a question asked and answered in the Dáil.

“Bare assertion is not sufficient for the case to go further,” he said.

If the State succeeds in its argument on the preliminary issue, then Sen Craughwell’s case would fall before any full hearing.

Mr Gerard Humphreys, for Mr Craughwell, said there was an arrangement in place between the two governments that could only be an agreement in need of approval by the Irish people under the Constitution.

Counsel also said that this meant the Government’s failure to exercise control over Ireland’s territorial waters and airspace breaches the Constitution.

Mr Humphreys said what was sought from the Government was either a denial or an admission of an agreement or a treaty with British authorities.

He said that there was no requirement for the details of any such deal and that he and his client did not wish to endanger Ireland or UK security. “The plaintiff [Sen Craughwell] was in the Irish and British army,” he added.

Mr Humphreys said that the comments of then-Taoiseach Ahern were made in response to an issue raised by the leader of the Opposition and were answers in the Dáil “on a very specific matter”, which were not “bare assertions”, as claimed by the defendants.

Mr Justice Charles Meenan said the court would reserve its judgement in the appeal.