SINN FÉIN TD Pearse Doherty is not pursuing his request that the High Court consider granting a declaration that the Referendum Commission is obliged to draw attention to clearly contestable issues of law that arise in a referendum.
The decision comes after the commission indicated earlier this week in correspondence with the TD that it would not agree to a process under which the court could provide a clarification of the commission’s obligations in this regard.
Mr Doherty’s lawyers had written to the commission last Wednesday suggesting the clarification of the issue would be helpful for future referendums and the commission replied on Thursday.
Given that response and to avoid a “disproportionate” use of court resources, Mr Doherty was not bringing a motion for a declaration, his senior counsel Richard Humphreys told Mr Justice Gerard Hogan yesterday.
It is understood Mr Doherty’s solicitors, MacGeehin Toale of Glasnevin, have also written to the commission to this effect, expressing regret that there was no meeting of minds.
The letter is believed to have stated that, in the light of the response from the commission, it had “regrettably become clear that it is not going to be possible to clarify this issue without consuming a disproportionate amount of judicial resources”.
Mr Humphreys had on Wednesday argued such a declaration arose from the judgment of Mr Justice Hogan where the judge, while rejecting the TD’s challenge to remarks by the commission concerning whether Ireland has a veto over the European Stability Mechanism (ESM) coming into being, said there was “unquestionably” room for legitimate legal and political debate on that issue.
Counsel said his client was asking the court to indicate that the commission should clearly state, when it puts forward a position on a clearly contentious issue of law, that there was room for legal and political debate on that issue.
The judge said he believed the application for a declaration raised jurisdictional and other issues and would have to be formally made via a motion.
He set yesterday as the deadline for the filing of such a motion and said that if it was lodged he would deal with it next Thursday, when he would also rule on who will pay the costs of Mr Doherty’s proceedings.
The judge also indicated his view the hearing of the motion would take half a day.
Yesterday, Mr Humphreys said his client was not pursuing a declaration as he considered it would not be possible to address the matter without disproportionate use of court resources.
Mr Doherty’s case centred on whether the Government could veto or refuse to approve the March 2011 European Council decision to amend the Treaty on the Functioning of the European Union to allow for a mechanism to provide emergency loans on strict conditions to distressed EU states.
The judge ruled that the court could not express any view on what the commission had said about the very complex issue of the veto in the absence of the matter being referred to the European Court of Justice.
There was “unquestionably room for legitimate legal and political debate on this issue”, the judge said.
