High Court action over EU migration pact not properly issued, judge finds

Proceedings seeking to delay Oireachtas vote until referendum is held ‘wholly without substance’, says counsel for clerks of Dáil and Seanad

Dáil chamber
Elements of the EU migration pact are currently going through the Houses of the Oireachtas

An application seeking an injunction delaying the Dáil and Seanad from voting on measures contained in the EU pact on migration and asylum until a referendum takes place was not properly issued, a High Court judge has found.

The judge said the action by Una McGurk SC would need to be reissued, so the proceedings are unlikely to return before the court in the short term.

Elements of the EU migration pact are currently going through the Houses of the Oireachtas.

The measures include enhanced screening and security checks and faster processing of asylum applications.


In her action, Ms McGurk seeks orders delaying any vote in either house of the Oireachtas on the EU measures from taking place “until such time as a referendum of the people takes place to determine the constitutionality of any such ceding of sovereignty”.

The proceedings are against the clerk of the Dáil, the clerk of the Seanad, the Minister for Justice, Ireland and the Attorney General, who claim the action would not succeed and was without substance.

When Ms McGurk’s action came before Mr Justice David Nolan last Wednesday the judge granted permission on an ex parte basis for the injunction application to return before the court on Friday morning.

On Friday, Mr Justice Nolan said the motion seeking the injunction had not been properly issued.

This was not the fault of the Court Service and it may not have been Ms McGurk’s fault either, the judge said, adding that he had made the matter returnable to Friday after it was impressed on him by Ms McGurk’s legal advisers that it was urgent.

After considering submissions from the parties the judge said that all he could do was allow the proceedings to be reissued “in the normal way”.

This means the action will be given a date before the court in the future by the Court Service.

The judge said he was not prepared to make the case returnable to a date next week.

The defendants argued the action was not something the courts can entertain and that the matter was not properly before the court.

They also argued that the matter, which they said will be opposed if reissued, was not urgent and should not be listed before the courts next week.

Aoife Carroll BL, for the clerks of the Dáil and the Seanad, said the application was “wholly without substance” and was “clearly non justiciable”.

Counsel added that the action against her clients, who she said should not have been named as defendants given their roles, was moot as a vote on the issues has already taken place.

David Fennelly BL, for the State respondents, said the application sought orders against the Oireachtas was one that “could never be granted” by the courts.

Counsel said the State parties also reject claims that the houses of the Oireachtas dealing with issues concerning security and justice amounted to an impermissible breach of Ireland’s sovereignty.