TNAG-0720-FCO40-918-Capital-punishment-in-the-Dependent-Territories-1978 — Page 119

CONFIDENTIAL

The use of the phrase "or suspend" is intended to cover the case of those dependent territories on the verge of independence where no doubt it would be preferable simply to suspend the death penalty so as to leave options open on the grant of independence.

5.

I would concede that a motion constructed in these terms could hardly be brought before the House as a Government Motion. But this does not seem to me to be a decisive objection, particularly if it were made clear at an early stage of the debate that the Government were prepared to accept the Motion.

6.

The Legal Advisers would certainly find it much easier to justify the proposed modification of the Creech-Jones doctrine if it were set in the context of a basic policy decision to proceed to legislation in due course. I am bound to point out that passage by the House of the Motion proposed in the draft memorandum would, for the future, place the FCO Legal Advisers in an invidious position. They would be bound to advise the Secretary of State in each and every individual case that he cannot properly use the Royal Prerogative to abolish the death penalty in the dependencies, and that he must direct his mind only to relevant circumstances and not to irrelevant circumstances (such as pressure manifested in the House of Commons or in the media). On the other hand, a revised motion of the kind which I suggest would at any rate go some way towards resolving the dilemma since the fact that the Secretary of State would commute in almost all conceivable cases would be seen in the context of a basic decision that legislation would be introduced to abolish the death penalty at the earliest possible moment. Clearly, a decision by the Secretary of State to commute in practically every conceivable case could hardly be criticised in face of a basic decision by the House to proceed to legislate (as soon as time permitted) to bring about this very result. The motion, if passed, would of course raise the question of legislating by Order in Council for the four territories where this is possible. If this were done, the position of the Secretary of State qua'the three remaining territories would be even stronger.

16 January 1978

c.c.

PS

PS/Mr Rowlands PS/PUS

Sir Anthony Duff

Mr Cortazzi

Mr Rushford

Mr Stewart Mr Duff (WIAD) News Department

CONFIDENTIAL

Jon Sumer

Ian Sinclair

Legal Adviser