TNAG-0719-FCO40-917-Capital-punishment-in-the-Dependent-Territories-1978 — Page 64

Mr Stewart

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EXECUTIONS IN BERMUDA

1. In his attached manuscript| minute of 30 December, Mr Rushford has suggested that I might comment on the last paragraph of Section II of Sir Anthony Duff's memorandum.

In the case of Bermuda

2. I think there has throughout been a certain difference of view between the Bermuda Attorney-General and the FCO Legal Advisers on the consequences of a failure by Her Majesty to exercise the residual prerogative of mercy in those cases where a Colonial Governor has decided not to commute a sentence.

3. We must go back to fundamentals. the prerogative of mercy has been delegated to the Governor to exercise in accordance with certain constitutional and statutory provisions which require him inter alia to consult the Prerogative of Mercy Committee. The basic question is once the Governor has decided not to commute, and Her Majesty, on the advice of the Secretary of State, has accepted a recommendation that the law should take its course, does the Governor still retain power to comunute? This in turn depends upon whether a decision by Her Majesty, on the advice of the Secretary of State, not to exercise the residual prerogative of mercy empties the Governor of his constitutional and statutory powers. In principle, I do not think it does; but this is subject to certain qualifications to which I will now turn. The first qualification is that, in the circumstances contemplated, some new element or factor must have come to light justifying the Governor in exercising his powers, whether by way of a stay of execution or commutation. The second qualification is that, in the circumstances contemplated, the Governor would no doubt initially act by way of stay of execution rather than by way of commutation in order to permit sufficient time for consideration of the new element or factor and consulta- tion with the Secretary of State. The third qualification is that, as a matter of propriety if not actual legal obligation, the Governor in the circumstances contemplated, would presumably not commute (as opposed to staying execution) without having secured the agreement of the Secretary of State. But I think there can be no doubt (and here is where there appears to be a difference of view between the Bermuda Attorney-General and the FCO Legal Advisers) that, even after Her Majesty has, on the advice of the Secretary of State, decided not to commute the sentence, the Governor is still empowered initially to stay execution and subsequently (no doubt after consultation with the Secretary of State) to commute the sentence.

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this extent, the argument used in the letter Lord Brockway does, in my view, over-state the powerlessness of the Governor; but we can always seek to resolve this difference of view between the Bermuda Attorney-General and the FCO Legal Adviseño by seeking an opinion from the English Law Officers.

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