4
It would
of an official majority in the Legislative Council). also be possible for HM Commissioner in Anguilla to secure the passage of legislation. But this would not be possible in Belize, Bermuda, the British Virgin Islands or Montserrat.
It
13. Abolition of capital punishment could, in practice, also be achieved through the systematic commutation of all capital sentences. As things stand at present however, the Secretary of State could not instruct Governors to commute: the constitutions of all the dependent overseas territories make it clear that the Crown's prerogative of mercy has been delegated to Governors, and that they must exercise it in their own deliberate judgment. They are not subject to direction from the Secretary of State. would be perfectly possible to amend the constitutions in each territory by Order in Council (although in Bermuda this could only be done with the agreement of the Bermudan Government), in order to give the Secretary of State the necessary power to instruct the Governor to commute. Alternatively, since the Queen still retains a residual prerogative of mercy, it would be open to the Secretary of State to advise Her Majesty to use this residual power to commute in any case where the Governor himself decides not to do so. However, the FCO Legal Adviser has advised that there are serious constitutional objections to the Secretary of State's seek- ing in this way effectively to secure the abolition or suspension of capital punishment through executive action. It would be unconstitutional for him, under the guise of exercising the Crown's prerogative of Mercy, in effect to suspend the law on capital punishment in each of the territories concerned.
14. If abolition is to be achieved therefore, the only way it could be done is by legislation in the UK, and this, if it is to be effective in all of the territories concerned, means that there would have to be an Act of Parliament.
The Position of the Channel Islands and the Isle of Man
15. Capital punishment for murder is also retained in the Channel Islands and the Isle of Man. If legislation to abolish capital punishment in the dependent overseas territories were to be con- sidered, we should need to consult the Home Office to decide whether it should also be extended to the home dependent territories.
The Views of Governors
16.
Correspondence with Governors in 1979 elicited the following
views:
(a) The Creech-Jones doctrine has stood the test of time and
Governors would be content for it to be maintained.
(b) Governors should not be required or expected to take account of UK political considerations in deciding whether or not to commute death sentences.
CONFIDENTIAL
/(c)
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