Detailed Commentary on Sections in Part 6 Miscellaneous Section 151: Power to remedy ultra vires acts
533.This section enables Her Majesty by Order in Council to make provision in consequence of an Assembly Measure or Act or an exercise by any person of a function imposed or conferred by Assembly Measure or Act which is, or is suspected to be, outside the competence of the Assembly or person. Such provision could be given retrospective effect to enable third parties to be put in the position they thought they were in before a defect was discovered.
534.An Order in Council under this section can make any modifications as Her Majesty considers appropriate to remedy any enactment (including an Act of the Scottish Parliament or an instrument made under such an Act) , prerogative instrument or other instrument or document. However, where the proposed modifications are amendments to or repeals of Acts, a draft statutory instrument has to be approved by a resolution of both Houses of Parliament before a recommendation can be made to Her Majesty to make the Order in Council.
535.In circumstances where the Secretary of State has used his power in section 150 to make modifications of enactments, instruments or documents (see the note to that section), in consequence of an Assembly Measure, an Act of the Assembly or subordinate legislation made under such Measure or Act, but it is subsequently considered that the Measure or Act in question (including the Act or Measure under which the subordinate legislation was made) was outside the Assembly’s legislative competence, the power in section 151 may be used by Her Majesty to reverse or modify any consequential modifications made in exercise of the power under section 150. Such reversal or modification of the modifications may be considered appropriate in consequence of the Measure or Act which is considered to be beyond competence.