I welcome the Minister of State, Deputy Gerald Nash, to the House and call on Senator Feargal Quinn to speak. The Senator has ten minutes.
Succession (Amendment) Bill 2015: Second Stage
The Minister of State is welcome to the House. I am delighted he is here. The Succession (Amendment) Bill 2015 is very important and I hope we have a good discussion on it. We now know from a decision of the High Court in 2011, which is just four years ago, that where one joint tenant kills another, the killer gets to keep his or her share in a jointly owned property. This is deeply unjust. In fact, I have some difficulty with the term "joint tenants" which usually refers to a husband and wife, although it does not have to be on that basis.
At the heart of the Bill which we are now debating is the fundamental principle that a person should not be allowed to profit from his or her crime. It is a straightforward Bill which will provide that where one joint tenant kills another, the offender will have no entitlement to the victim's share of the property. The offender will not be entitled to avail of his or her own share in the property either. To some, this may seem harsh or even unjust, but where is the justice and fairness where one joint tenant kills another and then profits from the sale of the property? Where a person has had his or her life ended along with his or her property rights, are we to be deferential to the offender? Is this the result the authors of our Constitution intended and is it something we as legislators should stand over? A further example of the law favouring the offender is the fact that where one spouse kills another, the offender is free to claim the spouse's pension payment in the same way as if the spouse had died naturally. It is a further anomaly in our law which must be addressed. We must make a change.
In too many areas, our legislation is tilted in favour of the offender and the Constitution is invariably held up as a shield to proposals which even hint at fairness for victims. Imagine that we go out of our way to be fair to the perpetrator. The Government's advisers will say that we must err on the side of caution. While the Constitution provides a good level of protection for property rights, it is sometimes forgotten that these property rights are not absolute. In fact, the Constitution makes it very clear that property rights may be diluted or modified provided such interference is, in the words of Article 43.2.2°, in the exigencies of the common good and proportionate to the objective to be achieved. The authors of the Constitution never intended that a person could kill another person and then reap the financial rewards. Other countries which provide constitutional protection for property rights have introduced laws which are similar to the one I propose in this Bill. In the United States of America, for example, states such as Massachusetts, West Virginia and North Dakota have all introduced legislation which has the effect sought to be provided for in the Bill. Those laws are deemed to be compatible with the Fifth Amendment of the US Constitution which, like the Irish Constitution, protects property rights.
The Bill has been drafted with the advice of a number of lawyers who are more than satisfied with its constitutionality. Section 2 is the key section as it seeks to insert two new sections into the Succession Act 1965. The proposed new section 120A of the 1965 Act would apply to joint tenancies where there is only one surviving co-owner and that surviving co-owner has been found guilty of the murder, attempted murder or manslaughter of the other co-owner. In those circumstances, the Bill provides that the joint tenancy is terminated and the entire interest in the property is vested in the estate of the victim. The proposed new section 120B would apply to a joint tenancy where there are two or more surviving co-owners and one of the surviving co-owners has been found guilty of the murder, attempted murder or manslaughter of another co-owner. In this situation, the Bill provides that the joint tenancy is modified so that the victim's and the offender's interests in the property are automatically vested in the estate of the victim.
The current law in this area was clarified somewhat in a decision of the High Court in 2011. In that case, Ms Justice Laffoy shed light on the path towards a legislative solution. She said, "The issues raised in these proceedings demonstrate that, ideally, there should be legislation in place which prescribes the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner". It should be pointed out that Ms Justice Laffoy also alluded to the absence of legislation which would have allowed the court to interfere with the offender's property rights. She seemed to envisage a Bill similar to the one I propose and did not in any way suggest that such legislation might not be permissible. I ask the Minister of State to note this point in particular.
I acknowledge that the Law Reform Commission is examining this issue in conjunction with a range of related aspects and some not all that related. My impression is that the conclusion of the commission's work is some way off, which concerns me. The drafting and passage of any other legislation on this topic is likely to take a number of years. The Bill could be passed with the support of the House and, in time, replaced once the Law Reform Commission completes its work. I am very much of the view that there is a gap in our law in this area which we should not leave open any longer. We should pass the Bill today and it should become law. When the Law Reform Commission makes its report a further enactment may supersede this law. Given that the commission may take some time to come to a decision, we would at least have better law in place in the meantime.
The killing of a human being is the gravest crime in law. It is only right that succession and property law should prevent an offender from reaping the fruits of a terrible crime and being unjustly enriched as a result. I appeal to the Minister of State and his colleagues across the House to support the passage of the Bill.
Cuirim fáilte roimh an Aire Stáit. It is my pleasure to second Senator Quinn's timely and necessary amendment to the Succession Act 1965.
I take this opportunity to compliment my colleague, Senator Quinn, who is always so thoughtful in the legislative initiatives he brings forward. His proposals always are rooted in the need to address people's experience of things that are happening and to seek to bring fairness in some way. That is what the law should be about at all times; it should be relevant to the situations that arise in life and which affect people and when the law is not doing justice, it needs to be amended. Senator Quinn is quite right to bring forward this amending legislation and it deserves immediate support.
The common law injunction preventing one from benefiting from one's own wrongdoing has a long and distinguished lineage. Captured in the maxim, ex turpi causa non oritur actio, that is, from a dishonourable cause an action does not arise, this prohibition was cited by the renowned Lord Chief Justice, Lord Mansfield, in the 1775 case Holman v. Johnson, in which that jurist set the rationale for what is known as the "illegality doctrine". He stated:
The objection [to permitting a wrongdoer to benefit from his wrongful actions] is founded in general principles of policy ... The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes.
The laws of contract and of equity always have upheld principles that seek not to assist those who, to use the words from the law of equity, do not approach the court with clean hands.
The statutory law in this jurisdiction relevant to the Bill is set out in section 120 of the Succession Act. In particular, the conviction of a defendant for manslaughter has clear implications in respect of the distribution of the estate of the deceased by virtue of the application of section 120 which provides:
A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.
As Senator Quinn has stated, a more modern consideration of these concepts is to be found in the decision of the Irish High Court in Cawley v. Lillis of 2011. This unfortunate case, as Members will recall, concerned the manslaughter of a wife by her husband at their house in north County Dublin. In the Cawley case, while Ms Justice Laffoy acknowledged the long-standing principle of the common law I mentioned earlier, she accepted that where assets were jointly owned: "The resolution of those issues primarily turns on the application of established principles of law and equity in the area of real property law, which is highly technical, rather than the exercise of discretion by the Court." Consequently, the law is not entirely clear where property is jointly owned.
In the United Kingdom, the position is more clearly set out by the operation of statute. The courts in the United Kingdom have a statutory power, under the Forfeiture Act 1982, to order the forfeiture of joint interests in property in cases where a person has unlawfully killed another. Megarry and Wade, in their leading work, The Law of Real Property, explained the impact of those provisions in the British law and I think it is useful for Members if I set out their summary as follows:
One consequence of the rule that no one may benefit in law from his own crime, is that, in general, if one joint tenant criminally kills another, the killer cannot take any beneficial interest by survivorship. This rule of public policy, commonly known as the "forfeiture rule", applies to cases of deliberate and intentional homicide, [where] the killing is murder, manslaughter or aiding and abetting a suicide. It has not been conclusively settled in England whether the application of the rule causes the automatic severance of the joint tenancy or whether a constructive trust is imposed to prevent the killer from obtaining any benefit from his crime. Where there are just two joint tenants, the answer will be the same on either view.
Without engaging in an analysis of the distinction between the application of a constructive trust or the severance of a tenancy, it is sufficient to note that Ms Justice Laffoy determined that joint tenancy accrued to the husband who was guilty of his wife's manslaughter but that half of the property was held in constructive trust for the wife's estate. The judge opined in the court, in a comment that would be obiter rather than binding, that: "The issues raised in these proceedings demonstrate that, ideally, there should be legislation in place which prescribes the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner." It is in light of these dicta that I welcomed this legislation as both timely and necessary.
I commend Senator Quinn's careful drafting of the Bill. It is my view that he has taken a balanced approach and has acknowledged the constitutional protection afforded to property rights that the public policy considerations demand. The Bill correctly proceeds on the basis that the constitutional rights in Article 43.2.2° are not absolute. Indeed, this is addressed in other comments of Ms Justice Laffoy in the Cawley case. Article 43.2.2° limits individuals' property rights in the "exigencies of the common good". This is the case where compulsory purchase orders can be made over land, it should be a fortiori the case where a person seeks to make a material gain over the estate of a deceased, having brought about that person's death. This Bill is measured, well founded in the long-standing precepts of the law and proportionate to the objective to be achieved. It deserves the cross-party support of the House. I note this is a matter that is under consideration by the Law Reform Commission. Members of the Oireachtas, and Senator Quinn more than once, have found themselves in a position where they really have anticipated the work the Government ought to have done itself already.
This is the case here. Senator Quinn has done the intellectual and policy spadework necessary and Members owe a great debt of gratitude to the Senator and to those working with him for so doing. The mere fact that this is not a Government initiative is no reason the Government should not accept this legislation today. Too often in these Houses, one hears excuses like a proposal having potential unintended consequences or of the existence of some legalities that must be considered further. More often than not, such excuses really amount to little more than straw, designed really to allow the Government to save face and bring forward its own legislative initiative in its own right. The Government ought to accept this Bill today and allow it to proceed to Committee Stage in the normal course of events. Knowing Senator Quinn, he always is most reasonable when it comes to proposed adjustments and changes and the process of contact and consideration can go on. However, the passage of this Bill needs to start in this House today.
I welcome the Minister of State to the House and commend Senator Quinn on introducing the legislation before Members today. The Minister for Justice and Equality come into the House recently to respond to a Commencement matter I raised in respect of domestic violence legislation and this is the ultimate end of the domestic violence crime. The Minister has given me a commitment that before the end of this year, she will bring forward comprehensive legislation to bring together eight Acts to compound the legislation in order that the crime of domestic violence will be a crime and that those who commit it will be punished properly. On dealing with pieces of the legislation, I understand the sentiment and agree with it 100%, although the Attorney General has a different opinion as to whether it would hold up in court to constitutional challenge. However, I believe firmly that the issue of domestic violence must be dealt with in its entirety this year and the Minister has committed to that. It is not just one legislative item that must change, unfortunately, as a whole raft of legislation is involved. The Minister will bring together eight Acts in this regard.
Obviously, this is very difficult for the families involved and this undoubtedly affects real people. Last week, I listened to a case in which a man was found guilty of manslaughter. I will not name anybody but he invited his former wife up to the bedroom, telling her he was going to shoot himself, but he shot her with a sawn-off shotgun. He was convicted, not of what was absolute cold-blooded murder but of manslaughter. I am unsure of the difference between murder and manslaughter as to me, that is absolute murder. Again, this is the ultimate horrible end to savage domestic violence, where someone actually is murdered. My views in this regard are clearly known and I already have stated on the record a number of times where I have come from.
I sincerely hope that by the end of the year we will bring forward legislation including this proposal. We need to close all the doors so that people who commit these horrible crimes do not get rewarded. Unfortunately, in this case the Attorney General has a view that this may not hold up constitutionally. However, I support the sentiment and the absolute view that no one should be rewarded for a horrible crime that has ravaged our country. There is no specific legislation to deal with it. I have put forward many proposals to the Minister and I hope that we will deal with the crime of domestic violence in 2015, with those who commit it punished properly. The perpetrator is the very last person who should be rewarded in any way. That is where we go wrong. The victims tend to be the ones who suffer.
I did not get any indication from Senator Mulcahy on whether he would support the Bill but I think it deserves serious support. A judge of the High Court has not been able to decide a case satisfactorily because of an absence of legislation. The Oireachtas has failed to do its job. As Senator Mullen said, this is not a new proposition in law but a well-known issue. There is a name for it and Members can look up what these laws are called in other jurisdictions. They are common laws as this is not a unique situation.
Senator Mullen mentioned a Latin maxim and there is another, nullus commodum capere potest de injuria sua propria. These are ancient principles and it is a common issue over thousands of years. Whether in Roman, British and Irish law or American law, these issues have been dealt with and Senator Quinn is dealing with the specific issue, namely, the severance of a joint tenancy, following the mandate of a High Court judge. The particular judge is a well-known expert on conveyancing and property law. The Government does not control the Seanad and I believe we should pass the law, allow it to proceed to Committee Stage and do what Senator Quinn has done before to resolve an issue.
People will be at the wrong end of the situation in the future because this happened so often in the past and will happen again. We cannot be involved in a dereliction of duty. Senator Mulcahy speaks about the need to ensure domestic violence is a crime. There was a crime committed and someone was convicted of a crime in this case. That is not an issue at all. Conveyancing and succession law was not in place to deal with the matter satisfactorily. Senator Quinn has proposed legislation on this point, although I accept there may be other issues in regard to domestic violence. It is important to remember such issues but we are here to discuss one issue. This involves not allowing a person who has committed a wrong to benefit from the wrong.
My party will support the legislation as set out clearly by Senator Quinn. It does not warrant a huge amount of explanation but it demands a response. The High Court has asked us for that response because it cannot decide cases in its absence. It is not good enough to postpone it. Senator Mullen said the Government should have done this before now but Senator Quinn is doing what we, as Oireachtas Members, should be doing by filling the gaps in law. We should be listening to what the courts say to us every day of the week. Yesterday, a case took place relating to the misuse of drugs and was rectified. It is a similar situation, where the law has been found to be defective, although there was no constitutional aspect to this case.
It was regrettable to hear Senator Mulcahy talk about unconstitutionality although I did not catch the exact context. It is a phrase that should never be used because it has been abused so often in this House. Constitutional or legal issues are raised with every item of legislation put forward by the Opposition. That is wrong.
In fairness, the Attorney General stated that she is not convinced the Bill, as formulated, would withstand constitutional challenge. That is the opinion of the Attorney General and that is what I said.
My point still stands. What killer will take a constitutional challenge against this in any event? Last week, we were talking about the constitutional rights of banks and today we are talking about the constitutional rights of murderers. What are we coming to? Let us do our job as legislators, pass a Bill, study it carefully on Committee Stage and get it on the Statute Book. We should not allow anyone else to benefit in any way in the future.
I commend Senator Quinn on his work and dedication in bringing this Bill forward. The current legal scenario, as we have seen in numerous cases, has the potential to compound the difficulties of family members mired in already tragic situations. That someone convicted of murder should possibly benefit from the joint tenancy shared with the person whose life was taken is terribly unjust. This needs to be rectified with haste and I hope tonight's proceedings make a significant contribution in this regard.
As noted, the stated aim of the Bill is to provide for assignment of property rights deriving from a joint tenancy in circumstances where one co-owner is killed by another co-owner. I agree that the current law is inadequate in this regard. However, I am also cognisant of the advice given by the Attorney General with regard to the Bill. My concern is that, as the Attorney General advises, the Bill in its current format may be unconstitutional and that, if it goes forward, we could encounter difficulties down the road. These difficulties could be avoided if the Bill were reformulated in line with the comments of the Attorney General.
It is also important to note the work being conducted by the Law Reform Commission, which has set up a consultation process on section 120 of the Succession Act 1965. The deadline for submissions was 26 January. Under this process, the commission is examining the provisions of section 120 in depth and sought submissions on the section, including the reform of the section of the Succession Act as it applies to property held in a joint tenancy, which is the primary focus of Senator Quinn's Bill. However, the report from the Law Reform Commission will not be available until later this year. We should do every thing we can to expedite it because the findings of the report, along with Senator Quinn's proposition, will be a key element in deciding how best to address the amendments needed. It is my contention that these must be considered before finalising legislation. We must act in haste on this point.
Like many Oireachtas Members, I acknowledge and admire the tremendous work of Senator Quinn on this and other Bills. However, if the Bill was to proceed in its current format, it would run into difficulty. People convicted of murder and manslaughter, who seek to benefit from legal estates, could prolong the difficulty and tragedy for families by challenging the legislation before the High Court or the Supreme Court. That does no one any favours. We do not want to enact legislation that may lead to further revision down the line.
The Bill requires a swift response. I expect the Law Reform Commission to deliver its report as promised. I want to see it happen as quickly as possible. The Minister for Justice and Equality should ensure the Government works quickly to implement any changes suggested. I commend Senator Quinn for putting the issue on the legislative agenda and I am supportive of the essence of what he is trying to achieve. Once the Law Reform Commission report is forthcoming and the Attorney General has had the opportunity to appraise the report and consider the principles and essence of this Bill, it will ensure a substantial change in the law and give families some degree of relief.
Words fail me. I am privileged and honoured to hear Senator Quinn taking this issue where it should be solved, namely, in the Houses of the Oireachtas. I am overwhelmed. If I may be religious, it is pure and true Christianity to help this family in trouble. They have suffered so much.
As stated in the explanatory memorandum, the assertion that a person should not be allowed to profit from his or her crime is a well-known tenet of criminal justice.
It is a principle which ought to be more prominently reflected in statute law and honoured in common law. It is a pity this Bill cannot be accepted but I understand the reasons for this. I do, however, hope for a more positive response from the Minister of State on this matter in the future.
I thank Senator Quinn for his time and incredible hard work for bringing this Bill to the House. Like Senator White, words fail me. I am not a lawyer and, to be honest, legal speak drives me crazy because I can never understand it. Can the Minister of State imagine if he were one of those people in the Gallery? People kill for a variety of reasons, some for monetary gain or to force the division of assets and the realisation of property to release equity.
The term “no-brainer” comes to mind this evening. Senators Mulcahy and Higgins were so eloquent and I am sure the Attorney General is a brilliant woman whose advice I respect. Why are we here in this Seanad if we cannot accept this Bill, however? I am looking forward to the Bill on domestic violence but Senator Quinn has done the work and we need to push this through.
The gift of human life is a rare and wonderful thing. Somebody’s life was stolen. The last time this law was around the blocks I was five years of age. I am now 54 years of age and we are looking for a simple amendment to the Succession Act 1965. Where are all the other Members? Our failure to move to close off this weakness in the law gives rise to a grossly unjust and perverted incentive for a joint tenant with malicious intent to kill another joint tenant. How someone who has taken another human being’s life - somebody’s Mummy away - can profit from it is beyond me. Senator White is correct. Why are we here? If the Government cannot support this Bill to progress to the next Stage, will the Minister of State make it the highest priority on the legislative programme?
I thank Senators for their contributions. This is a matter which concerns and troubles us all. It is the Government’s intention to address this egregious situation, as well as the concerns eloquently raised here this afternoon. We are all human beings and it requires a human response.
On behalf of the Minister for Justice and Equality, Deputy Frances Fitzgerald, who unfortunately cannot be here today, I thank Senator Quinn for tabling his Private Members’ Bill and for providing us with an opportunity to discuss the important and sensitive issues which arise in the context of succession law where a spouse or child has been found guilty of the unlawful killing of the other spouse or a parent. I also thank Senator Quinn for approaching the Government to discuss his Bill. The Minister for Justice and Equality and I hope to have an agreed approach to the development of legislation in this area.
These issues have, unfortunately, come to the fore in recent years in several high-profile cases which have come before the courts. Today's debate is both topical and timely. It is also difficult for families who have been affected by these issues. I acknowledge and extend my sympathies to the relatives who have lost loved ones in such tragic circumstances, especially those who join us today in the Visitors Gallery. The Government understands and appreciates Senator Quinn's reasons for bringing forward this Bill and is entirely sympathetic to the important public policy objectives underpinning it. We are also sympathetic to the families who are sadly affected by this.
However, the Attorney General, who is responsible for advising Government on the compatibility of proposed legislation with the Constitution, is not convinced the Bill, as formulated, would withstand constitutional challenge. The Minister, therefore, could not support the Bill at this stage on the basis the broad scope of its provisions risks infringing constitutionally protected property rights. The Government is, however, examining the issues raised by Senator Quinn's Bill and intends to bring forward proposals later this year to deal with this issue, along with several related succession law matters based on a Law Reform Commission project which is already well advanced.
I assure all Members and the families in the Gallery who have lost loved ones that it is the Government's intention to bring forward legislation, based on the recommendations of the Law Reform Commission later this year and proceed quickly with enactment of that legislation. There will be no foot-dragging in this area.
The Minister has spoken to Senator Quinn regarding his future involvement with the Law Reform Commission and the Government wants to see his proposals brought to the commission for consideration. I hope there would be an agreed approach to the serious issues which Senator Quinn brought to the floor of the House today. Before entering into any further detail, the Minister for Justice and Equality and I want again to underline our sympathy and support, and that of the Government, for the victims of these horrendous crimes. The burden for the victims in these cases is, of course, all the greater because the perpetrators have been part of the victim's own intimate family circle.
It is a well-established legal principle in both common law and statute law that no person should be permitted to benefit from his or her unlawful conduct. In the area of succession law, this means a person who is guilty of the unlawful killing of another person is prevented by force of law from benefiting from his or her victim's estate. In short, the perpetrator is not allowed to inherit what he or she would otherwise have received under the victim's will or on intestacy if the deceased had not made a will. This long-standing principle finds practical expression in section 120 of the Succession Act 1965 which provides that a person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other person.
A particular issue arises where the perpetrator and victim have been joint tenants of property such as the family home. A joint tenancy is a form of co-ownership of property which is common among spouses and its distinguishing feature is the so-called right of survivorship. It means, for example, that when a spouse who is a joint tenant of the family home dies, the surviving spouse automatically acquires the interest of the deceased spouse in the property and it does not form part of the estate of the deceased spouse.
The high profile case to which Senator Quinn has already referred has drawn attention to certain features of the law applicable in this area which undoubtedly need to be reviewed. In that case, the High Court found the surviving spouse did indeed acquire the interest of the deceased joint tenant in the property but went on to find that he was prevented under the rule which I have already mentioned from using these assets for his own benefit. Instead, the High Court found that he held them in trust for the beneficiary of the deceased's estate.
Arising from the uncertainties that came to light in this case, in December 2012 the Department of Justice and Equality suggested to the Law Reform Commission that this area of succession law needed to be reviewed and updated. Accordingly, it asked the Commission to consider undertaking such a review in the context of its upcoming law reform programme. The Minister is very pleased, therefore, that the commission decided to take the matter on board in the context of its current law reform programme.
While the subject matter of Senator Quinn's Bill is paramount, it is not the only aspect of succession law that needs to be re-examined in the context of section 120 of the 1965 Act. The Law Reform Commission published an issues paper in November last that sought views and submissions on no less than eight different aspects of section 120.
As Senator Higgins outlined, the deadline for the receipt of submissions was the end of January 2015. The Minister understands that the commission has received a number of submissions containing a range of viewpoints in response to its issues paper and that it intends to prepare and publish a report containing specific recommendations for reform by July this year.
The backdrop, therefore, to the Government's approach to this Bill is the Law Reform Commission's current examination of eight different aspects of section 120 of the 1965 Act and the fact that the commission intends to submit comprehensive reform recommendations within a matter of months. In light of this ongoing work, the Government does not wish to pre-empt matters by proceeding with a partial reform that may need to be reviewed again on receipt of all the commission's recommendations. However, there is also the constitutional obstacle, which I mentioned earlier. A key issue that arises in the context of joint tenancy cases is whether the perpetrator should not only lose his or her entitlement to the victim's interest in jointly owned assets but also forfeit his or her own interest in them.
Senator Quinn's Bill provides that where a joint tenant has been found guilty of the murder, attempted murder or manslaughter of the other co-owner, the joint tenancy shall be deemed to have been terminated with effect from the date of the offence. This means that the surviving spouse would be precluded from benefiting from the estate of the deceased co-owner. The Bill goes further by providing that the entire interest in the property shall be deemed to have been vested in the estate of the deceased, with effect from the date of the offence. In short, the surviving spouse would also forfeit his or her own interest in the joint assets in favour of the estate of the deceased spouse.
It is at this point that issues relating to constitutionally protected property rights arise because the Constitution affords protection to the property rights of every citizen in both Article 40.3 and Article 43. As Article 43 makes clear, the State may delimit the exercise of these rights "with a view to reconciling their exercise with the exigencies of the common good." In order to withstand legal challenge, any such delimitation requires a careful balancing of the competing rights involved.
The Law Reform Commission discusses the forfeiture option that forms part of Senator Quinn's Bill in its issues paper. It notes that any solution would have to be compatible with the property rights in Articles 40.3 and 43.2 of the Constitution. In this context, the commission draws attention to various statutory provisions which already provide for forfeiture of property and other assets that are the proceeds of crime. Most notably, the Proceeds of Crime Act 1996 provides for the civil forfeiture of property and other assets that are the proceeds of crime. Elsewhere, Part 2 of the Criminal Justice Act 1994 allows the court to make confiscation orders where it considers that a person who has been found guilty of certain drug trafficking offences has benefited from the trafficking.
The commission notes that the Supreme Court has upheld the validity of such provisions on the basis that a person in possession of the proceeds of crime can have no constitutional grievance if deprived of their use. However, the commission goes on to distinguish forfeiture of property and assets that derive from crime from forfeiture of property and assets of a person who has been convicted of the unlawful killing of his or her spouse but which are not derived from crime. The clear objective of any criminal sanction imposed by the courts in such cases is to punish the perpetrator for his or her crime, but that is not the purpose of the forfeiture rule under succession law. Its role is to ensure for sound public policy reasons that the perpetrator does not benefit from the crime; it does not seek to further punish by depriving the perpetrator of his or her legally owned assets.
One of the aspects of section 120 of the 1965 Act which the Law Reform Commission is reviewing is whether the existing forfeiture rule may act in an unduly harsh manner in certain cases. As already mentioned, the full force of the rule applies in cases of manslaughter, even where the killing was accidental.
As the commission points out, the gravity of the crime of manslaughter and the moral culpability of the perpetrator may vary enormously depending on the circumstances. In order to avoid the risk of injustice arising from rigid application of the forfeiture rule, some jurisdictions, including the United Kingdom, have granted the courts a margin of discretion in applying it. This is an aspect of section 120 on which the commission has sought submissions.
It is true that in past centuries, punitive sanctions were in force in this and similar jurisdictions that provided for mandatory forfeiture of the assets of those found guilty of felonies. These were largely repealed towards the end of the 19th century in the Forfeiture Act 1870. Some residual restrictions on the rights of prisoners to deal with their property remained in force in this jurisdiction until repealed by the Criminal Law Act 1997. Since the enactment of that legislation, prisoners have been free to deal with their property while serving their sentences, using agents where necessary for practical reasons.
On a more technical level, Senator Quinn's Bill proposes to insert two new sections into the 1965 Act, one dealing with the case of a single surviving co-owner and the second with cases where there are two or more surviving co-owners. However, this would probably be insufficient to achieve the Bill's stated objective without some reference to the Land and Conveyancing Law Reform Act 2009.
As the High Court has noted, the law relating to co-owned land has been reformed in Part 7 of the Land and Conveyancing Law Reform Act 2009. In order to protect the rights of joint tenants, Part 7 makes it more difficult to sever a joint tenancy except with the prior consent in writing of the other joint tenant or tenants. However, a court order may be sought to dispense with the consent requirement where it is considered that such consent is being unreasonably withheld. It is probable, therefore, that any changes to section 120 of the 1965 Act would have to be accompanied by some reference to the provisions of Part 7 of the 2009 Act.
On behalf of the Minister for Justice and Equality, I thank Senator Quinn once again for raising this important public policy issue. As I have mentioned, while the Government is supportive of the objectives of this Bill as it relates to the amendment of the law applicable in this area, it has decided to await the comprehensive reform recommendations of the Law Reform Commission, which are due for publication shortly, rather than proceeding with a partial reform of this important area of the law at this stage.
I reiterate to Senator Quinn and everyone else present, especially the families, that it is the Government's intention to bring forward legislation, based on the recommendations of the Law Reform Commission, later this year and to proceed quickly with enactment of that legislation. I look forward to hearing the Senator's response to the approach I have outlined and the points I have made.
I applaud and compliment Senator Feargal Quinn for bringing forward this important legislation and generating debate. The debate is overdue. On many occasions in this House, Senator Quinn has been ahead of the Government in bringing forward relevant legislation.
I extend my sympathy and that of the House to the family of the late Celine Cawley, whose death struck a chord with all of us. It is only right and proper that the Government would introduce legislation to ensure that, in the future, no perpetrator of a murder or manslaughter will be able to benefit financially as a result of that crime. I am encouraged and heartened by the response that the Minister of State made in the House this evening. While he has indicated there are constitutional difficulties with the legislation as brought forward by Senator Quinn, it is the Government's intention to bring forward in the very near future, in the coming months, a comprehensive suite of legislation that will address the issue Senator Quinn wishes to have addressed through his Bill. The Senator has certainly brought much clarity to the debate and conversation. I have no doubt that the Minister of State, by liaising closely with the Senator, will ensure legislation of the kind the latter wishes to have enacted will cover all the eventualities he mentioned.
I urge the Minister to ensure that the commitments and timelines he indicated to the House will be honoured, and that the priority this legislation requires will be given to it. No family should have to endure the trauma that the family in this case has endured, to see somebody who has been responsible from the death of a loved one benefit financially from that crime. It is one of many families throughout the country who, on far too many occasions in the course of a year, have had to deal with the same crisis and the same awful crime. We want to ensure that this loophole is closed before this Government leaves office and that there will never again be a situation where a family will have to expend significant amounts of money in the courts to try to have a wrong put right. The only way it can be done is through legislation, and both this House and the Dáil have the power to do that.
I thank Senator Quinn and congratulate him on this fine legislative measure. Even if it needs improvement or adjustments here and there, I ask the Minister to ensure it will be part of the comprehensive suite of legislation to cover all of these issues, including those mentioned by Senator Mulcahy earlier. I hope all of that significant legislation will be enacted during the term of this Government.
I thank the Minister for his considered and fair-minded response to the Bill. He certainly gave it his attention. However, I am concerned that things appear to take a long time to get done, not just in this House but in both houses.
I am concerned when I hear dates mentioned. The Construction Contracts Bill is one of the Bills I introduced some years ago. It was enacted after three years but it has not yet been signed into law, so it is not performing as intended. It greatly concerns me when I see how long it takes to get something done or for something to occur.
On the other hand, I get the sense that there might be a change. The Misuse of Drugs (Amendment) Bill was before the House this morning, which was within 24 hours of the challenge in the court. Hopefully we can move swiftly and get action on these matters. The Minister mentioned July. That is a date I can live with as it is just four months away.
It is a well established principle in law that a person should not be allowed to profit from his or her crime. My firmly held belief is that our succession, property and, indeed, pensions laws must reflect that principle. When considering a matter such as the one before us, we must put the victim at the centre of our consideration and not focus on the offender. We must not cower at the mention of the Constitution. The Constitution expressly says that property rights may be diluted in the exigencies of the common good.
Another Bill this House debated and passed was the Upward Only Rent (Clauses and Reviews) Bill. It has not yet become law and part of the reason is that the Attorney General has said she is worried about some aspects of it. The Attorney General appears to have influenced the Government regarding the Bill before the House today, and there have been many references to her views on it. I remind Members that under the Standing Orders of this House the Attorney General has a right of audience here. It would have been helpful if the Attorney General had come to the House today to elaborate on her position. She could also have done that with the Upward Only Rent (Clauses and Reviews) Bill. Those of us who proposed that Bill had been given strong opinions that the legislation was constitutional, but the Attorney General said she did not believe it was. The Attorney General has a right of audience in this House and I would like her to come here on occasions such as this to give her view.
The authors of the Constitution never intended that a person could kill another person and then reap the financial rewards as a result. While I recognise that this Bill pushes the boundaries, I do not accept that there are questions about the constitutionality of the proposals at its heart. For now, we can agree to differ on this point. I accept the Minister of State's bona fides when he indicates that the Minister, Deputy Fitzgerald, will move swiftly to legislate in this area once the Law Reform Commission completes its work. I can live with the July date. I am pleased to have had the opportunity to bring this important matter before the House and, hopefully, to have inspired the Government to move towards a solution to this problem perhaps sooner than might otherwise have been the case.
I found it a challenge to develop this Bill. It came about as a result of an article in The Irish Times by Miriam Keane, who is in the Visitors Gallery. She is a lawyer in University College Dublin, UCD, and she advised me on the drafting of the Bill. In her article she drew attention to the anomaly and said she believed we can do something about it, as something should be done. We have heard from the Minister, Deputy Frances Fitzgerald, and we heard today from the Minister of State, Deputy Nash. I thank the Minister of State and I particularly thank the officials, who also advised me on the Bill. They have taken a position on the Bill which I can live with until July. I do not have a very long finger, but it is one that can last for four months. However, that is as far as it will go. Hopefully, I will be able to say that before the recess in July we will have had the opportunity to debate this with the Law Reform Commission. I thank the Minister and suggest that we adjourn the debate on the Bill.
When is it proposed to sit again?
At 12 p.m. on Tuesday, 24 March.