THE High Court decision yesterday to dismiss Mr Des Hanafin's challenge to the result of last year's divorce referendum brings to an end - almost - a campaign dogged throughout by litigation.
The Government's decision to spend £500,000 to promote a Yes vote, which led directly to this latest litigation, was controversial, and was criticised by a number of commentators, including this newspaper, when it was first made.
However, it was Green Party MEP Ms Patricia McKenna who went to the High Court to try to prevent the expenditure.
She had mounted a similar challenge to the Maastricht referendum in 1992, and she indicated her intention to pursue this course of action last June, three months before the date was set for the divorce referendum. But it was not until the end of October, when the campaign was well under way, that it came to court.
She lost her action in the High Court, with Mr Justice Keane ruling her dispute with the Government should be resolved by the legislative and executive arms, not the judicial arm, of government. She then appealed to the Supreme Court, which ruled on November 17th last, just a week before the referendum vote, that the spending by the Government of public funds seeking a specific outcome to the vote was unconstitutional. The court ordered the cancellation of the advertising campaign. This, with one or two exceptions for practical reasons, was immediately done.
Throughout her challenge, Ms McKenna had insisted that she personally favoured the introduction of divorce, and her party campaigned for a Yes vote in the referendum.
While the no divorce and anti divorce campaigns had criticised the Government spending on the advertising campaign, they had not been involved in Ms McKenna's challenge. Nor, following her victory, did they seek to take any further legal steps against the referendum going ahead.
The Supreme Court judgment, coupled with a continuing disastrous slide in support for the Yes vote in the opinion polls, spurred the Government into an energetic and hard hitting campaign during the last week.
In the course of the Hanafin case, Mr Jack Jones, of MRBI gave evidence that it was this rather than the advertising campaign which halted the slide in support for divorce.
The halt was only just sufficient to avert defeat for the Government and all the parties in the Dail, which, without exception, had sought a Yes vote. When the votes were counted the majority of 9,000 was the slimmest imaginable.
It was hardly surprising that the anti divorce campaigners were not only bitterly disappointed, they felt also the unconstitutional Government funding was a material in the outcome, especially given the narrowness of the Government's victory.
But thinking that this was the case and proving it in court were very different matters.
After some discussion in the anti divorce ranks, it was the chairman of the Anti Divorce Campaign, Mr Hanafin, acting in a personal capacity, who brought the action seeking to overturn the result. This was on the grounds that the Government spending, already ruled unconstitutional, had interfered with the conduct of the referendum and materially affected its outcome.
The Attorney General contested the case on two grounds that the court had no jurisdiction to overrule the will of the people as expressed in a referendum, which was properly conducted in accordance with the Act and that the Government spending had not materially affected the outcome.
Mr Hanafin called five witnesses in the course of the hearing. Four of them estimated that the Government campaign had influenced the vote to the extent of 3 or 4 per cent the fifth, Mr Jones of MRBI, gave evidence of the shifts in public opinion which showed that support for the amendment responded to a number of different stimuli, including interventions by church and political figures, and that it actually increased when the Government advertising campaign ceased.
In its judgment yesterday the High Court unanimously dismissed Mr Hanafin's action, saying he had not proved that the effect of the Government advertising could be disentangled from all the other elements in the campaign, and quantified in relation to the vote.
Act three judges drew attention to other factors affecting the outcome, and Mr Justice Murphy in particular agreed with Mr Jones's assertion that the advertising had no measurable effect.
The judgment also considered whether the High Court had jurisdiction in the matter, and whether the Government expenditure constituted interference with the "conduct" of the referendum.
They were unanimous that the court did have jurisdiction. Two off the judges held that the term conduct" of the referendum related to the mechanics of holding it, rather than the conduct of the campaign. But Mr Justice Barr held that it could include conduct of the campaign. However, he agreed with his colleagues that even so, the unconstitutional funding had not been shown to have materially affected the outcome of the campaign.
Mr Hanafin and his legal team are now considering whether to bring the case to the Supreme Court. This can only be done on a point of law, not fact, as the High Court has already ruled on the evidence.