Sir E Youde
Youde
HKG-380/2
3000700
CONFIDENTIAL STAFF IN CONFIDENCE
No
BBR
C
Clift.
30
10
21
(23
868
CAPITAL PUNISHMENT
1.
After discussion with Mr Day, I am minuting on the points raised in Mr Harding's minute of 20 October and Mr Day's of 21 October on my submission of 17 October.
2.
I agree that it is desirable to try to lessen the burden placed upon Governors. However, I see difficulties in carrying too far the proposal in Mr Day's paragraph 2(c). I am sure it is right to reassure Governors that their decision will be supported. But we should, I suggest, say so firmly and leave it at that. There are problems in teling Governors, particularly on Ministerial authority, that their personal conscience is one of the factors which they can take into account in reaching a decision. Strictly, they should not do this. Mr Davidson, who is understandably looking for guidance, would take it as an indication that Ministers favoured commutation. As with Mr Davidson's idea of taking the current practice in the UK into account, there are serious risks that we would be accused of acting unconstitutionally and inter- fering with the autonomy of the Dependent Territories in this matter.
3.
I realise that the implication for Mr Davidson is that he must make up his mind on the merits of the case, simply taking account of any extenuating circumstances. It is a very tough proposition for anyone and may be intolerable to an opponent of capital punishment. Can we lessen the burden on the individual?
4.
I see serious difficulties in transferring the decision to a UK Secretary of State on his own. The same problem of Westminster/Whitehall interference in the local law of a dependency would arise. There is, of course, a right of appeal to The Queen, on which the Secretary of State advises, but so far as the West Indian dependencies are concerned, the custom of non-intervention has become so well established that a change would cause serious protest. It can, of course, be argued that a territory which enjoys British protection (and in some cases is unlikely to achieve independence) has no right to have its own way on so serious a point. But to put that argument into practice would require a decision by Ministers to accept the political risk in the dependencies and possible reactions in Parliament.
5.
It is true that in 1973 the then Secretary of State did intervene in a case in Hong Kong. The reason then was that legislation to abolish capital punishment in Northern Ireland was being enacted. It was the view of Ministers that an execution in Hong Kong would jeopardise its passage through Parliament. Since then the position in Hong Kong has been held,
C.C. LIKE 3880/485/1
CONFIDENTIAL: STAFF IN CONFIDENCE
/on