TO HELP put Mr Desk Hanafin's appeal in context, be well to start with a chronology. The first relevant event was the Supreme Court's judgment in the McKenna case of last November, which held that it was unconstitutional for the Government to spend public money on one side, but not on the other, off the divorce referendum campaign.
Next came the referendum result in which the relevant point for present purposes is that the Yes vote outnumbered the No vote by a bare 9,000, in a poll of over one million. In February, Mr Des Hanafin took his case to the High Court by way of a petition under the Referendum Act 1994. He failed for reasons to which we will return in a moment.
In appealing to the Supreme Court in March, Mr Hanafin had a preliminary hurdle to jump. This was the question of whether the Supreme Court had any authority to hear an appeal at all and, if so, whether it was restricted to a point of law.
The court held that there was an unrestricted appeal, basing itself on Article 34.4.3 of the Constitution. This states that there is always an appeal on both law and fact, from the High Court to the Supreme Court, save for "such exceptions and regulations as may be prescribed", in this case by the 1994 Act itself.
There was in fact, a fairly strong argument that the 1994 Act confined the appeal to a point of law. The rejection of this argument by the Supreme Court showed that the court felt, at least, that Mr Hanafin should have his day in court.
In the full, substantive hearing before the Supreme Court last month, the same two arguments were made which had also been heard before the High Court. On each of these Mr Hanafin had lost.
The first argument was whether, under the petition procedure established by the Referendum Act, the court had jurisdiction to hear the points Mr Hanafin wished to raise. His main point was grounded in the Government's unbalanced expenditure on pro-amendment advertising which had been held, in Patricia McKenna's case, to be unconstitutional.
The question is whether this flaw in the campaign is within the scope of the petition, since the 1994 Act confines itself to grounds such as "obstruction of or interference with ... the conduct of the referendum".
This type of language indicates, as two of the three High Court judges had ruled, that the petition was not intended to cover defects in the campaign but only in the mechanics of holding the referendum itself, for example, interference with a citizen going to vote or some defect at the count.
In spite of its finding on this point, the High Court went on to consider, as the Supreme Court almost certainly will, Mr Hanafin's substantive ground of complaint.
THIS is a specialised question of fact, namely whether the government's expenditure had "materially affected" the result of the referendum. A number of factors make it difficult for Mr Hanafin to prove this fact. These include the secrecy of the ballot the ups and downs of the campaign and, especially, the multitude of factors which influence different voters in different ways.
Proving that the Government's expenditure has caused the Yes victory is going to be difficult for Mr Hanafin if the Supreme Court approaches the issue literally.
However, in certain areas of the law, where establishing a fact poses peculiar difficulties, a special legal technique has been developed to assist the disadvantaged party. The Hanafin case is novel, and there is no ready made body of law to assist him in his difficulty.
Thus one significant technical question is whether the Supreme Court will act creatively to remedy this gap by, for instance, constructing a presumption of law (as rules of this type are called) to the effect that where £500,000 worth of advertising has been bought, it must have had a material effect given the paper thin margin of the majority.
In trying to forecast the Supreme court's judgment, one should say that so far as the conventional arguments just considered are concerned on both of the two points the is fairly well balanced.
Moreover if one goes beyond the legal arguments and asks the underlying realpolitik, matters are no clearer. For, on the one hand, if a court were to up hold Mr Hanafin's argument, it would look as if it were interfering to reverse the vote of the people at the referendum, the highest and purest form of democracy that we have.
Reflecting this line of thought, is a legal doctrine known as "the political question", which is to the effect that certain issues have such a high political content that it is inappropriate for a court to meddle in them.
In this context, it is relevant that one of the newer members of the Supreme Court, who was not on the court when it decided the McKenna case is Mr Justice Barrington. It was he who was the senior judge on the High Court when it decided the Crotty case of 1987 against Mr Crotty (subsequently the decision was reversed on appeal) on the basis, in effect, that making agreements with foreign states was a political question.
However, telling in favour of Mr Hanafin is the McKenna case judgment. Here by a four to one majority, the Supreme Court ruled that the Government's expenditure in the campaign was unconstitutional.
If Mr Hanafin's case fails, the court will in effect be holding that here was a situation in which the Constitution was broken, yet no remedy was given. If courts grant rights without giving remedies to enforce them, they tend to bring themselves into disrepute.
A cautious lawyer will only predict a decision against Mr Hanafin and in favour of the referendum result but probably with one or two dissenting voices.
