TNAG-0599-FCO40-747-Capital-punishment-in-Dependent-Territories-1977 — Page 117

T9

Mr Stewart (Hong Kong Department)

CAPITAL PUNISHMENT IN DEPENDENT TERRITORIES

13

RECEIVED IN REGISTRY No. 51

26 M

HKG 380/1

1. I am sorry to have kept your draft for so long but I have been seeking the advice of both Mr Rushford and Mr Steel in this matter.

2. As a general rule we are not sure that the possibilities of instructing Governors of dependent territories to introduce legislation abolishing capital punishment or alternatively amending the constitutions to revert the exercise of the prerogative of mercy from the Governors to the Crown will be feasible. One of the reasons for this is that, as regards Bermuda, the 1966 Bermuda Conference agreed that the Secretary of State would not advise amendment of the new Constitution without consulting the Bermuda Government. Further if he considered the proposed changes to be of a major nature he would call another representative conference. This will oblige the Secretary of State to consult Bermuda and he may have to call a representative conference since the change proposed is of a major nature. As far as Belize is concerned there appears to be no similar difficulty. However constitutional amendment to implement either possibility will be necessary in some or all dependencies. First, the governors in Bermuda and Belize cannot be instructed to introduce legislation since they have no power to do so. Second, no dependent territory Governor can be instructed to exercise the prerogative in every case since they are obliged under the current relevant constitutions to exercise the prerogative as they deem fit.

3.

This effectively only leaves open the possibility of the United Kingdom Parliament unilaterally legislating to abolishi capital punishment in the dependencies or the Secretary of State advising the Queen in each case to exercise her prerogative.

4.

As far as the first possibility is concerned, I think it fair to say that this is the most desirable from a legal point of view. It avoids the situation, contained in the second possibility, of retaining the death penalty in the dependencies' legislation whilst having a practice whereby the exercise of the death penalty is administratively avoided in the United Kingdom. Moreover the Governments and people of the dependencies are left in no doubt as to the suspension of the death penalty whilst they are dependent on the United Kingdom.

5. The second possibility does raise 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, the prerogative is only to be exercised in relation to the merits of the individual case in respect of which the prerogative has been requested to be exercised. A general policy to exercise the prerogative in every case might be questionable as being a misuse of the discretionary power inherent in the exercise of the prerogative. Almost certainly an announcement that, in future, the prerogative would be exercised in every case, regardless of the circumstances of each case, will provoke a constitutional issue on the exercise of discretionary powers by the executive. An issue to be avoided in view of the controversy in the Thameside School and Laker cases.

6. On the other hand, these constitutional difficulties can be avoided. Ministers canannounce that the Creech Jones doctrine will no longer be regarded as being the criteria which would govern the exercise of the prerogative of mercy in the dependencies. In future each case would be considered by the Secretary of State having regard to all the circumstances considered by him to be relevant. The Secretary of State would then in each case consider not only the local facts and circumstances but also

/bear