TNAG-0599-FCO40-747-Capital-punishment-in-Dependent-Territories-1977 — Page 110

CONFIDENTIAL

Practical Possibilities

9.

It seems that there are the following two possibilities:

(i) the UK Parliament could legislate unilaterally to abolish capital punishment in those dependent territories where it is still retained. This would be the most desirable solution from a legal point of view. It would overcome the present situation whereby the death penalty is retained on the statute book in dependent territories but its exercise is administratively avoided in the UK. It would also have the advantage of making it clear to the governments and people of the dependencies that the death penalty will be in suspense while they are dependent upon the UK. On the other hand, action by the UK Parliament would be bitterly resented in the dependent territories on the same grounds that would apply if an attempt were made to instruct Governors to exercise the prerogative of mercy in all cases (see paragraph 8(b) above). At Westminster there would be the difficulty arising from the fact that hitherto HMG itself has not initiated legislation on the death penalty. It would not be appropriate for a back-bencher rather than HMG to take the lead in introducing legislation on such a controversial issue as the exercise of the death penalty in dependent territories;

(ii) the Secretary of State could advise The Queen to exercise her prerogative of mercy in each and every case that a death sentence in a dependent territory is not commuted by

the Governor concerned. This raises the constitutional

problem as to whether or not it is right that the executive should have a policy in regard to the exercise of a prerogative. Properly speaking, the prerogative is only to be exercised in relation to the merits of the individual case in respect of which the exercise of the prerogative has been requested. A general policy to exercise the prerogative in every case might be questioned as a misuse of the discretionary power

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CONFIDENTIAL