Registry
No.
SECURITY CLASSIFICATION
CONFIDENTIAL
DRAFT
PS (POSTSCRIPT)
To:-
Top Secret. Secret.
Confidential.
Restricted.
Unclassified.
PRIVACY MARKING
To be added to the brief attached to Mr Stewart's submission of 25 July
Type 1 +
From
Telephone No. Ext.
Department
DSR11
...........In Confidence
Flag D
1
Since the above was prepared the Attorney General has commented on the Secretary of State's memorandum (Mr De Winton's letter of 22 July to
Number Ten). The Attorney-General's comments will require detailed
consideration but the following are preliminary comments, prepared in
consultation with the department's Legal Adviser, on the three points
that he has raised.
I.
The effect of the Secretary of State's proposals would be to
suspend the law on capital punishment in the Dependent Territories by
administrative action. This would be both unconstitutional and
inconsistent with the exercise by the Governor of his powers to
exercise the Prerogative of Mercy.
It is accepted that the effect of the proposals would be to suspend the
law on capital punishment in the Dependent Territories concerned but
some way around the present unsatisfactory situation needs to be found.
While it would be better to have legislation passed abolishing
capital punishment in the Dependent Territories that course of action is open to the objections explained in paragraph 5(ii) and (iii) above.
In spite of the constitutional objections and the inconsistent position of the Governor and his advisors it is suggested that the Secretary of
State's proposals offer the easier way forward.
II. The proposed announcement to Parliament is misleading since it
implies that consideration would be given to the circumstances of each
case while the Secretary of State's intention is to advise Her Majesty
The Queen to exercise the Prerogative irrespective of any circumstance
other than the views of Parliament.
The Parliamentary statement could be expanded to say that it would be the present Secretary of State's intention to advise Her Majesty always
to exercise Her Prerogative in the light of the views of Parliament but
this might be questioned as a misuse of the discretionary power inherent in the exercise of the Prerogative of Mercy. This could
provoke a constitutional issue on the exercise of discretionary
/powers
Dd 108087 400M S&K 1/77
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