The High Court judgment on Mr Des Hanafin's appeal against the result of the divorce referendum is a trenchant and convincing confirmation of its legality and validity. The judgment is based squarely on matters of fact about the conduct of the referendum campaign. The court finds that it was conducted fairly, despite the Supreme Court judgment in the McKenna case on November 17th last which concluded that the Government illegally used public funds to argue a partisan case. Assuming yesterday's judgment is not appealed to the Supreme Court on a point of law the way is now clear for the `Yes' vote in the referendum to be implemented by enactment of the Divorce Bill.
The factual kernel of this judgment finds Mr Hanafin's argument that the outcome of the referendum was materially affected by the use of Government money - not proven. Mr Justice Murphy said that no convincing evidence was adduced to demonstrate that this was the case. On the contrary, the court was impressed by evidence showing that after the flow of Government money ceased, support for the `Yes' side actually increased. This is in keeping with a political estimate which concludes that until the politicians in favour of divorce redoubled their efforts in the last days of the campaign they had failed to galvanise their supporters and wavering voters. The wisdom of the Supreme Court judgment in the McKenna case coincided here with the healthy conduct of referendum campaigns.
They are best left, as the Supreme Court argued, to the people themselves, responding to arguments put up by politicians and others involved. The Court laid down clearly that "the Government is ... a creature of the Constitution" and that "the use by the Government of public funds ... infringes the concept of equality which is fundamental to the democratic nature of the State". The judgment has far reaching implications for future referendums. Given the intensity of negotiations on the North and on the future of the European Union, as well as those that may arise from the review of the Constitution, they may be more numerous than expected. They will have to be more even handed so far as the expenditure of public money is concerned.
The Government will be highly relieved at this outcome after the close referendum result. In retrospect, it can be seen that the McKenna judgment, while highly inconvenient, may have been precisely what was needed to shake up a lacklustre campaign. The facts and effects of marriage breakdown, which were exhaustively debated and publicised during the last few years, can now at last have a comprehensive legislative framework within which they may be handled and resolved. It is now time to concentrate on the task of dealing with the reality of divorce in an effective and compassionate manner.