CONFIDENTIAL
(c) that a "hybrid option" be adopted whereby the power to exercise the Prerogative of Mercy in capital cases be removed from Governors in those three territories where it was thought that this could be done without formal constitutional amendment and that the Creech-Jones doctrine be abrogated in those five territories where the power to exercise the Prerogative could
not be so removed.
Ministers are asked to decide which, if any, of these options could be adopted.
6.
Argument
7.
The objections by the Lord Chancellor and the Attorney-General to the original proposal by the Secretary of State were based on the premise that it would not be constitutionally proper for the Secretary of State to adopt and to announce a policy whereby he would in the future bind himself consistently to advise The Queen to commute a death sentence; as this would be equivalent to changing the law by executive action. In the opinion of our own departmental legal adviser, if HMG were unwilling to introduce legislation into Parliament to abolish the death penalty for murder in the DOTs, the views of Ministers and of other Members of Parliament in favour of abolition would not justify a policy of consistent advice in each case to commute the capital sentence, where no other grounds for commutation existed.
8. It appears that their objections would fall away if, in the case where arrangements were made for reference of capital cases from the DOTS, the Secretary of State should in good faith consider the individual circumstances of each case and base his recommendation on those circumstances and not upon a predetermined conclusion that the sentence would be commuted. It is not clear to what extent the Law Officers and the Lord Chancellor would agree that the circumstances to be taken into account should include such considerations as the views of Parliament or the personal views of the Secretary of State.
2
CONFIDENTIAL
No comments yet.
Private notes are available after approval.