A.--By whom the power of clemency is to be exercised
4. When the exercise of the power of clemency was originally delegated by the Secretary of State for War to the Commander-in-Chief in Germany under Army Order 81/1945, no limitation was imposed. Subsequent instruments of delegation were set out in precisely similar terms, but at the time that the power of clemency was transferred from the Secretary of State for War to the Secretary of State for Foreign Affairs Mr. Bevin's intention was that the power should be exercised on a consultative basis; the nature of the delegation contemplated was indicated in the following minute by one of the Legal Advisers, which was written at that time:-
"The process of confirming the sentence of a Military Court is a judicial one, and Ministers ought not to give instructions to the confirming authority. But in any subsequent review of sentences, the High Commissioner is not exercising a purely judicial function. It would be proper for him to take into account, and he does take into account, considerations of policy and humanity, and that being so, there would, in my view, be no objection if the Secretary of State were to issue either general instructions as to the considerations to be taken into account in reviewing all sentences, or specific instructions on a particular case. The delegation of powers merely authorises the High Com- missioner to exercise certain functions. It is not, and was not intended to be, an exhaustive delegation of all the Secretary of State's powers to the High Commissioner."
5. However, owing to an oversight, no limitation of the power of clemency was prescribed either to General Robertson or to Sir Ivone Kirkpatrick. They were, therefore, entitled to assume that they had entire discretion in the matter, as had their predecessors, and they acted accordingly.
6. I do not think that at this stage we can revert to the consultative system. There must be a clear-cut final authority in the matter.
7. After full consideration Mr. Bevin reached the conclusion, and I agree with him, that there are good reasons why the power of clemency should remain with His Majesty acting on the advice of the Foreign Secretary. Decisions on clemency where they concern war criminals almost invariably have political con- notations and may give rise to serious political difficulties, so that it is inappropriate that the responsibility for assessing the political factors involved and for deciding what value, if any, to attach to manifestations of public opinion should be imposed upon an official. Since the political factors are on the international plane, there seems no alternative but the conclusion which Mr. Bevin reached. I have consulted the Lord Chancellor and the Law Officers and they are in agreement.
B. On what basis the power should be exercised
8. The method recommended is that preparatory work on all clemency cases should be done in the first place in Germany by the High Commissioner and his staff, who would, in appropriate cases, consult with the Deputy Judge Advocate- General in Germany. The resulting submission, based on all those factors which the High Commissioner and his staff are competent to appreciate, will be transmitted to the Secretary of State. The submission will then be considered by the Foreign Secretary, assisted by his advisers, and a decision reached. If difficult legal questions arise, the Law Officers can be consulted, and as regards other aspects of the question, the Foreign Secretary will be able, at his discretion, to consult with any of his colleagues.
9. It is intended that the High Commissioner should be allowed to continue the review of cases which began at the end of last year, as it would cause con- siderable embarrassment to announce in public that he had been instructed to discontinue it. He will, however, submit to the Secretary of State for a final decision any case where there appears to be a prima facie case for clemency.
10. It is not practicable to define principles by which the Foreign Secretary, in tendering advice on clemency, will be guided, except that he will as nearly as circumstances permit follow the same practice as Home Secretaries follow in cases where persons have been condemned in the courts in this country. In these cases, alagoufet cases of the exercise of the Royal Prerogate in &afes of clemency,
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