This is a podcast from the archives of the BBC Reith Lectures.

This lecture in the series Law, Justice and Democracy, given by John McCluskey, was originally

broadcast in 1986.

Though it is clear that there are wider arguments about the wisdom of enacting an enduring

constitutional document containing a selection of rights intended to be overriding or fundamental.

My principal purpose is to consider the effect of such a step upon the role of the judiciary

and indeed upon the law itself. In doing so, I should make clear my belief that although the

historical, legal and constitutional

differences between the United States and the United Kingdom are considerable, there are some

lessons that we can learn from American experience that we cannot learn anywhere else.

But before I attempt to show why that is so, let me remind you that the essential constitutional difference between our higher

judicial system and that of the United States is that American judges are the guardians and interpreters

of a written constitution. That constitution containing the Bill of Rights has long been regarded

as a living source of philosophy and principle.

It contains the text of a supreme law which provides the legal warrant for judges to make enduring social and political choices.

By contrast, our judges, whatever the social or political implications of their lawmaking, are in no sense the final arbiters of such choices.

Whatever law they create is at the immediate disposal of Parliament.

The mistakes our judges make are not woven into the fabric of a supreme law beyond the reach of the legislature.

The same applies to their achievements.

Their finest works are, at least in theory, able to be swept away by sovereign parliament.

This perception of the theoretical vulnerability, both of the law's treasury of individual rights

and of our essential constitutional machinery,

...