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inherrent in the exercise of the prerogative. An announcemen that, in future, the prerogative would be exercised in a certain way in every case, regardless of the circumstances of that case, would almost certainly provoke a constitutional
issue on the exercise of discretionary powers by the executive
These constitutional difficulties could, however, be avoided.
Ministers could announce that the Creech Jones formula would
no longer be regarded as the basis on which the exercise of the prerogative of mercy in the dependencies would be governed. The Secretary of State would consider each case in future having regard to all the circumstances considered relevant by him, e.g. the fact that the use of the death penalty was repugnant to Parliament as well as the local facts and circumstances of the case. Each Secretary of State would
thus be free to advise The Queen
her prerogative of mercy.
consistently to exercise
Two further points would follow if the possibility at (ii) is adopted. First, consideration should be given as to whether or not the change of policy involved should be announced in Parliament. This is a matter of Parliamentary procedure but since the Creech Jones formula was enunciated in the House of Commons it would be
preferable that the new policy should be announced in the same way. Second, there can be no public statement that the Secretary of State will advise The Queen to exercise the prerogative in every case. Whether or not any Secretary of State decides to do this should not be publicly stated for the reasons given at (ii). The Secretary of State could not properly bind his successor to any course he may himself adopt, and the question of a permanent policy
does not therefore arise.
Recommendation
10.
I recommend:
(a)
that the Secretary of State abrogates the Creech Jones
doctrine and that henceforth in each case where the Governor
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