TNAG-0719-FCO40-917-Capital-punishment-in-the-Dependent-Territories-1978 — Page 27

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3.

solution would be legislation by the British Parliament. It is also accepted that there is no possibility of time being found during the life of the present Parliament. Under these circumstances Ministers might well be reluctant to inspire a Motion committing the House to legislation. It could also be argued that under such sircumstances where a Government announces that it intends to introduce legislation but with no possibility of so doing during the life of that Government and, as a consequence and deriving from only this proposed legislation, intends to abrogate the Creech-Jones doctrine, the Government's actions would

be unconstitutional.

5. We considered whether the disturbances in Bermuda could persuade the seven governments clncerned to respond to a personal appeal from the Secretary of State to abolish the death penalty. It is unlikely that many of them would be convinced by that argument. What indications we have had since the executions in Bermuda are that the governments concerned remain adamant in their intention to retain capital punishment. There is a danger that if we force them to tell us yet again of their desire to retain capital punishment it would make it much more difficult for the Secretary of State to change the policy by unilateral action in London.

6. This leaves us with a third possible course: the satisfactory alternative of parliamentary action. i.e. the introduction of a Motion which would abrogate or modify the Creech-Jones doctrine without legislation. Legal Advisers have doubts over the legality of such an abrogation of the Creech-Jones doctrine, principally because the Royal Prerogative cannot properly be used to abolish the death penalty in the dependent overseas territories even if this were the wish of a majority of the members of the House of Commons. Legal Advisers would be placed in an invidious position in that they would be bound to advise the Secretary of State in each and every idnividual case that he could not properly use the Royal Prerogative of Mercy to abolish the death penalty in the dependencies and that he must

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