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15.
v. Parliamentary Statement abrogating the "Creech Jones" doctrine
A Statement would be made in Parliament to the effect that the "Creech
Jones" doctrine no longer applied to capital cases in the dependent
territories. In future, in each case where a Governor decided not to
exercise the Prerogative himself, including cases where the prisoner
did not petition for mercy, the case would be referred to the Secretary
of State to consider, having regard to all the circumstances, including
the views Parliament has expressed on the use of capital punishment in
the United Kingdom. This would give the Foreign and Commonwealth
Secretary of the day the opportunity to advise The Queen to exercise
Her Prerogative if she so wished.
The alternatives discussed above were put to the Governors concerned
whose reactions and preferences are shown in Annex C.
Constitutional Considerations
16. It would be unconstitutional for the Crown to purport to use its
Prerogative power to suspend or abrogate enacted law. It cannot therefore lawfully exercise such power to relieve offenders generally of a statutory penalty they may have incurred and thus to abolish that penalty. Abolition of capital punishment can therefore be achieved only by legislation. On the other hand the Prerogative of Mercy, exercised within the limits described in paragraph 4, is part of our recognised constitutional arrangements.
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17. The Lord Chancellor and the Law Officers have advised that it would not be proper for my Secretary of State to adopt a policy of advising The Queen in every case to grant a reprieve, since this would be equivalent to changing the law by executive action. There is the further consideration that an administrative system of reference to the Secretary of State whose purpose was to ensure that a reprieve were always granted would render the Governor's discretion not to exercise the Prerogative ineffective and would therefore be open to criticism of being inconsistent with the constitutional instruments
of the Dependencies.
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