Barrister's attempt to delay Dáil vote on EU migration pact was not properly issued to court

High Court reporters

An application for a High Court 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 judge has found.

As a result, barrister Una McGurk's bid for various orders could not be considered by the court on Friday.

The judge said that the action must be re-issued and the proceedings are unlikely to return before the court in the short term.

Elements of the pact, which includes enhanced screening and security checks and faster processing of asylum applications, are currently going through the Houses of the Oireachtas.

The measures also include a greater focus on efficient returns for unsuccessful applicants and a mechanism that allows countries to either make a financial contribution or agree to relocate asylum seekers from other nations under particular circumstances.

In her action, Ms McGurk seeks orders delaying any vote in either Houses 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.

When the case was mentioned before the judge on Friday, Mr Justice Nolan said the motion seeking the injunction had not been properly issued.

This, the judge said, meant that the action was not properly before the court and could not proceed on Friday.

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 advisors that the action was urgent.

After considering submissions from the parties, the judge said all he could do was allow the proceedings to be re-issued "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 re-issued, 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".

Ms Carroll 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.

Mr Fennelly 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.