Sir: Professor Griffith (Letters, 8 August) is quite right. Written constitutions, bills of rights and all such legalistic paraphernalia are profoundly anti- democratic in nature. Their effect is to transfer power from elected representatives to an oligarchy of lawyers and judges.
Take the case of the death penalty, an issue that is genuinely comparable between the US, with its written constitution, and Britain.
In Britain, when it was in force, its execution followed its pronouncement mercifully swiftly, or the sentenced offender was granted a reprieve (stay) which was invariably followed by a commutation to life imprisonment. When the death penalty was abolished, this was done by an Act of Parliament promoted by a backbench member of the House of Commons.
True, if opinion polls are to be believed, it would seem that our lawmakers have been out of step with the rest of us ever since. But we have had six or seven opportunities, had the issue seemed important enough, to elect a "hanging" House of Commons and we have not done so.
In the US, there is a seemingly endless succession of appeals through a variety of courts, many of which seem willing to grant a hearing to almost any officious interloper even at the 59th minute of the eleventh hour. As a result, sentenced persons remain on death row for decades (a situation held to be cruel by our Privy Council).
This barbarity is the responsibility of lawyers and judges. The death penalty has been both abolished and restored in the US without a single vote on the issue, in either Congress or any state legislature, but simply on the re-interpretation by the Supreme Court of the words "cruel and unusual punishment". These changes of mind by a court of changing political complexion amount to judicial law-making, not interpretation.
Polly Toynbee and others like her put too much trust in lawyers. Subject to the limitations imposed on it by our membership of the EU, we should stick with parliamentary democracy. There is probably nothing that can be done about the modern tendency of our courts to make the law up as they go along; but at least, at present, parliament can over-rule them.
The writer was a Justices' Clerk, Kingston upon Thames, from 1981 to 1992.Reuse content