ARHIVELE OLTENIEI - Universitatea din Craiova

282Elena Alexandra IlincaThe most important of these is the power of the English judge to declare a decisionsecondarylegislation unlawful and therefore invalid when it is “ultra vires”, a powerthat in civil law countries is limited to a special constitutional court.Secondly, English judges are empowered to make law guided by pastprecedent or to ignore it as no longer applicable in cases no statute or prior casemandates a particular result. The power of English judges also flows from theway they are selected, as they are generally experienced, reputable andaccomplished lawyers who also have political connections. Also the grounds forappealing a decision are much narrower without the possibility to correct afinding of fact.Concerning the supposed ability of the executive and legislature toexercise power in any way they see fit, this can not be considered to be true.It is submitted that according to the “rule” of parliamentary sovereignty, thelegislature owns the supreme power but it is not lacked of any control.As part of the unwritten British constitution, constitutional conventionsplay a key role. They are rules of practice regarded as being so fundamental thatit could not be conceived they could be transgressed by anyone though they arenot written in any document having legal authority. Conventions are followed inorder to avoid political difficulties which would arise if they were breachedrather than because of a fear of judicial enforcement.These conventions also acquire the force of custom which is a verylong-held practice which comes to be perceived as having legal power. It wouldbe unconceivable that the legislature or executive would disregard constitutionalconventions or even break it as long as their very own source of power resides inthese conventions. It is exactly the existence of these conventions and historicalcustom, that prevent legislature and executive from exercising power in adiscretionary way, and if broken will lead to accusations of unconstitutionalbehaviour.Some more recent restrains of parliament’s power have occurred onceUK entered into the European Community in 1972 and became a signatory to theEuropean Convention on Human Rights in 1950. National judges wereempowered by ECJ (Van Gend en Loos v Netherlands [1963]) to suspendnational legislation that would be in breach of EC law. The same way, all newlegislation is presumed to be compatible with the ECHR and judges will notapply it if this is not the case.It also has to be taken into consideration that the House of Communes iselected so it is censored by electorate through their vote!It is alleged that there is a increase in powers of the executive, by the useof delegated legislation and by the fact that the Prim-Minister exercises someprerogatives of the Monarch without the consultation of Parliament. These are saidto affect the power of the legislature and to imbalance the separation of powers.The “whip” system is also a way to extend executive’s power.The delegated legislation is also an object of concern for those believingthis is a way for executive to gain power. Though it gives government the