Feargal Quinn (Independent) | Oireachtas source

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 advisors 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 43.2.2o, 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.