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18. If therefore course V in paragraph 14 were adopted, it must be clear
that the Prerogative would have to be exercised, not on the basis of a
predetermined policy of recommendation of reprieve, but on a case by case basis, having regard to the special circumstances relating to each case and
all other relevant considerations of a public or private nature. If this
course were followed, there could be no question of the prerogative being exercised in all cases irrespective of any circumstances other than the views of Parliament. In informing Parliament of any new arrangements for reviewww.
it would be consistent with the above principles and past practice to convey
no implication that the result would, in effect, be the abolition of capital
punishment."
Conclusions
19. The case for making a change in the existing policy and practice is discussed in paragraphs 8 to 10 above. If Ministers accept that case there are, in our view, broadly three alternative options which could be adopted.
1.8 Legislative action to abolish the death penalty
The passage of a Bill in the United Kingdom Parliament (paragraph 14. iii above) would have the advantages that it would be universal in relation to all DOT, would settle the matter definitively and would be a clear exercise by the United Kingdom of its metropolitan authority. Neither of the other legislative solutions (paragraphs 14 i and ii) would have these advantages. A Bill might however prove controversial in Parliament and would anyway take time to enact. If Ministers wish to proceed to total abolition, this method would seem the best.
2.
Abrogation of the "Creech Jones" doctrine
But
This option (paragraph 14 v above) has the advantage of universality. It would ensure that cases where the Royal Prerogative had not been exercised by the Governor were dealt with by a uniform procedure. it would be necessary for the Foreign and Commonwealth Secretary when tendering advice to The Queen, to do so in accordance with the principles set out in paragraph 17 above. The disadvantage of this option is that, when the Foreign and Commonwealth Secretary advised The Queen to exercise Her Prerogative, he would be clearly seen to be overriding local opinion and considerations, as expressed by the Governor's decision not to reprieve or commute the sentence. Since this disadvantage
is inherent in the reasons for making a change in policy, it may be regarded as acceptable. If option 1 were to be adopted, it would in practice be necessary to adopt option 2 temporarily pending the completion of legislation. This would take care of the immediate problem in Bermuda.
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