Comment:In an article published in Business this Weekahead of the Budget, Jim O'Leary argued that the Government has embarked on a policy of individualisation by stealth since Charlie McCreevey's original individualisation model lost political momentum after the 2000 budget.
O'Leary argues that by increasing the Employee Tax Credit from €660 in 2002 to the present value - €1,760 since Budget 2007 - far beyond the rate of inflation, the Government is in effect implementing its original strategy.
This fiscal policy is potentially unconstitutional and in violation of the State's commitments under the European Convention.
In its most recent report, the All-Party Oireachtas Committee on the Constitution says that "by moving towards the individualisation of the tax code Mr McCreevey contended that the change would encourage more married women to participate in the workforce".
If this was the Minister's aim, it constitutes a clear prima facie violation of Article 8 of the Council of Europe's European Convention on Human Rights in that it interferes with the right to respect for private and family life, home and correspondence.
The Government is afforded a margin of appreciation which would allow them to justify such a violation, but in order to do so they would have to show, among other matters, that the means employed are proportionate to the legitimate aim(s) pursued by the State.
As regards the legitimate aims pursued by the State, it appears that the Government is seeking to honour its commitments to the EU. In March 2000, the State signed the Lisbon Agenda which seeks to increase the percentage of women in the workforce to 60 per cent by 2010. Data published by the CSO this week indicates that the proportion of women in employment is now 59 per cent, up from 43 per cent in 1996.
Arguably, these Lisbon Agenda commitments are themselves in violation of the convention; certainly the State's means of honouring them would raise eyebrows in the European Court of Human Rights in Strasbourg.
On the domestic front, it can be argued that the broader government fiscal policy is unconstitutional.
In effect, the current Government policy is the classic application of an indirect discrimination; the provision appears neutral on its face, as Cowen argues: "one person, one allowance", but in practice it is completely unfair.
This is the same majestic equality that forbids the rich and the poor alike from sleeping under bridges and that ensures that the doors of the law, like the doors of the Ritz, are open to all.
To the extent that the Employee Tax Credit is applied to every employee, regardless of marital status, it leaves a single-income married couple in a worse position than either a single person or a double-income married couple.
Perhaps understandably, the Supreme Court has been reluctant in the past to interfere in matters of fiscal policy. However, one factor which might tip the scales towards unconstitutionality is the potential violation of a positive right that flows from Article 41.2. In L v L, the argument was made that a wife seeking a judicial separation was entitled to a 50 per cent share in the family property in circumstances where she had never worked outside of the home.
The High Court upheld her claim but the Supreme Court rejected it, stating that "it would be making a quantum leap in constitutional law to hold that by her life within the home, the mother acquired a beneficial interest in it".
When giving his judgment in that case, the chief justice of the day, Mr Justice Finlay, stated that the judiciary had no right to grant such an interest "where that would be unrelated to the question of her being obliged by economic necessity to engage in labour to the neglect of her duties".
Arguably, the current Government policy is in fact related to such a question in that the current policy is one of active discrimination against the stay-at-home spouse. In that way, the decision in L v L could be distinguished.
The Supreme Court has never equivocally stated that a positive right flows from Article 41.2 but in the decision in DT v CT, the current Chief Justice, Mr Justice Murray, stated that that article does: "expressly recognise that work in the home by a parent is indispensable to the welfare of the State by virtue of the fact that it promotes the welfare of the family as a fundamental unit in society".
If such a positive right exists, a fiscal policy which undermines that right could well be unconstitutional.
Certainly, if such a positive right exists and it could be shown to the satisfaction of the Supreme Court that the legislative intent is to encourage married women to participate in the workforce, through a tax penalty, it is clearly possible that the measure would be deemed unconstitutional.
Overall, the Government's commitment to the Lisbon Agenda, to the extent that it has committed itself to increase the percentage of women in the workforce to 60 per cent by 2010, may have resulted in the Government violating the European Convention on Human Rights, and implementing a policy that is contrary to the Constitution.
John P Byrne is a barrister and legal researcher
