TNAG-0724-FCO40-922-Policy-on-use-of-Prerogative-of-Mercy-1978 — Page 8

Continuation

PERSONAL AND CONE IDENTIAL

2.

separate letter gives more details) and suggested he seek guidance before commiting himself to any recommendation. But he may, of course, decide to make one.

Yours ever,

Peter

GP Lloyd

Deputy Governor

PERSONAL AND CO: FIDENTIAL

Mist hely any

Be spank ju

HKG 380/2

RECEIVED "'!

- 3 APR 1978

DESK OFFICER

INDEX

PA

29/3

Mr Duff

51

No

&

c.c.

Mr Rushford Mr Sullivan

ми Средопу

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to el panes 6-11

5/4

1. You consulted me about the constitutional matters for Bermuda summarised in Mr Lloyd's letter of 22 February. I have now been able to study the back papers. Three particular proposals have been put forward:

a.

The Governor should be bound by the advice of his Advisory Committee on the exercise of the Prerogative of Mercy;

b. The Premier should be consulted on the appointment

of Permanent Secretaries and senior Heads of Department and should have a right of veto;

C.

The Constitution should provide for the Governor to consult the Leader of the Opposition as well as the Premier before appointing a Chief Justice.

Prerogative of Mercy

2. The discussion with the Governor on 7 February, of which I have now seen the record, is slightly equivocal and I understand that the matter was raised again at a subsequent meeting with the Secretary of State. Earlier the previous Governor had argued that removing the Governor's discretion would make it "easier for the Secretary of State to defend in Parliament advice that Her Majesty should not intervene " Now that contrary advice by the Secretary of State is contemplated, the main ground offered for the proposal that the Governor should be bound to act on the advice of his Advisory Committee is that it would make the Governor's position easier. With respect, that is not a good reason: to resolve difficulties is what the Governor is there for. If in future a case were to arise where the Secretary of State felt it necessary to advise The Queen to override a decision by local Ministers to refuse mercy this could lead to a clash between HMG and dependency Ministers and to a constitutional crisis. The severe difficulties which were encountered in the Moore case in Belize would have had precisely this effect had not the Governor been in the middle and able to exercise his discretion and to use his influence with local Ministers. The fact that this is difficult for the Governor is a reason for retaining his insulating responsibility, not for removing it.

13.

CONFIDENTTAL

3.

This does not of course mean that Ministerial responsibility for law and order (other than internal security) should not be properly reflected in the Constitution. I think however that under the present arrangement the local Ministers have a considerable influence on the Governor's decision and rightly so since they have a responsibility for law and order. It is a difficult balance and experience suggests that the present arrangement, which (like the Creech Jones doctrine) has stood the test of time, is the best we can devise.

4. There is another difficulty in the Governor's suggestion that the responsibility should in effect be devolved upon a committee. It has always been a cardinal point of principle, reflected in statements by Secretaries of State in Parliament, that responsibility for exercise of the Prerogative must reside in one person. For this reason I do not think that, even if it were agreed to remove the Governor's responsibility, it could be devolved upon a committee. If the Governor were going to be required to act on advice, it would have to be on the advice of a named Minister and in that case the Minister would need (as in the Bahamas) first to consult an advisory committee. This would obviously be unsatisfactory in the circumstances of a dependency.

5. A change of the nature proposed would certainly be very much more than "cosmetic". The Prerogative of Mercy is an important function in the realm of law and order and to devolve responsibility entirely to local Ministers would be a step which I do not think could be contemplated without broad discussions such as are usually held during a constitutional conference. The opposition would doubtless have something to say about this.

Appointments of Permanent Secretaries etc

6.

The present arrangement for appointment of Permanent Secretaries and senior Heads of Department is eertainly a little anomalous: the Public Service Commission has to consult the Premier but has discretion whether or not to accept his view; whereas the Governor has no discretion and is bound to accept the decision of the PSC. This certainly seems unhealthy But it can be cured in other ways as well as that suggested by Mr Lloyd (who suggests giving the Premier a veto). The better arrangement in my view, at least until an early date for independence has been fixed, is for the Governor to retain the power of appointment to such posts in his discretion, after he has

2.

Me Posnett

CONFIDENTIAL

D.T. Adviser

22 March '78.

/consulted