Declaratory power

The declaratory power is a legal concept with various meanings in different jurisdictions.

Canada

In Canadian law, the "declaratory power" (or "federal declaratory power") is linked to the Works and Undertakings clause of the constitution, and allows Parliament to declare that public works in one province are for the "general advantage of Canada" or "for two or more of the Provinces" rather than just for the advantage of one province; this gives the federal government authority to take control of these projects. In general terms, the works thus described tend to be part of the national infrastructure.

The declaration must be made by the passing of legislation, but in addition to declaring specific works, whole classes of work can be defined as being "for the general advantage of Canada" by default; the Atomic Energy Control Act, for example, deemed all nuclear power plants to fall into this category. From 1867 to 1961 there were 470 uses of the declaratory power, of which 84% related to railways.

Scotland

In Scots law, the "declaratory power" is an unusual power held by the High Court of Justiciary, which enables it to declare behaviour to be criminal, even if that behaviour had not been previously defined as criminal activity.

This power has been used conservatively in the modern period, generally only in cases where an act is clearly comparable to an existing crime; it has, for example, been used to declare the selling of kits for glue-sniffing criminal. As the specific boundaries of many offences are left somewhat loosely defined, it can be difficult to distinguish the application of the declaratory power from cases where the court interprets existing legislation to cover new situations.

References

• Claude Bélanger, The declaratory power in the Canadian constitution. 2001.
• White & Willock, The Scottish Legal System, second edition. Butterworths, 1999.