The Fraserburgh Harbour Revision (Constitution) Order 2001

Scottish Statutory Instruments

2001 No. 457

HARBOUR, DOCKS, PIERS AND FERRIES

The Fraserburgh Harbour Revision (Constitution) Order 2001

Made

11th December 2001

Coming into force

12th December 2001

Whereas the Fraserburgh Harbour Commissioners have applied for a harbour revision order under section 14 of the Harbours Act 1964(1);

And whereas the making of this Order is not opposed;

Now, therefore, the Scottish Ministers(2) in exercise of the powers conferred by the said section 14 and of all other powers enabling them in that behalf, hereby make the following Order:—

PART I PRELIMINARY

Citation and commencement

1.—(1) This Order may be cited as the Fraserburgh Harbour Revision (Constitution) Order 2001 and shall come into force on 12th December 2001.

(2) The Fraserburgh Harbour Order Confirmation Act 1985(3), the Fraserburgh Harbour Order Confirmation Act 1990(4), the Fraserburgh Harbour Revision Order 1995(5), the Fraserburgh Harbour Revision Order 1999(6) and this Order may be cited together as the Fraserburgh Harbour Orders 1985 to 2001.

Interpretation

2.  In this Order—

“the 1990 Act” means the Fraserburgh Harbour Order Confirmation Act 1990;

“application date” in 2001 means 21st December and for all other years means the first Friday in November;

“appointing body” has the meaning given by article 5(1);

“approved candidates” means applicants for election as Commissioner whom the appointing body decide should go forward for election under article 5(4);

“the Commissioners” means the Fraserburgh Harbour Commissioners holding office either under the 1990 Act or this Order as the case may require;

“election date” means the second Friday in January;

“the new constitution date” means the election date in the year 2004;

“parish” means the parish of Fraserburgh in Aberdeenshire; and

“senior salaried official” means any of the Harbour Master, the Harbour Superintendent, the Harbour Treasurer or the Harbour Clerk.

PART II CONSTITUTION

Constitution of Commissioners

3.—(1) On and after the new constitution date, the Commissioners shall consist of—

(a) four persons nominated and elected by the shipowners, qualified as hereinafter provided;

(b) four persons nominated and elected by the harbour ratepayers, qualified as hereinafter provided;

(c) two persons nominated and elected by the parishioners, qualified as hereinafter provided;

(d) one person appointed by the Commissioners who is a senior salaried official of the Commissioners; and

(e) one person appointed by the Commissioners having been nominated by Aberdeenshire Council

and application, appointment or election under a sub-paragraph of this paragraph shall mean application, appointment or election for the post of Commissioner described in that sub-paragraph.

(2) The arrangements for election and appointment of Commissioners shall be as follows—

(a) on the election date in the year 2002 and every third year thereafter,

(i) two Commissioners shall be elected in accordance with sub-paragraph (1)(a) above,

(ii) one Commissioner shall be elected in accordance with sub-paragraph (1)(b) above, and

(iii) one Commissioner shall be appointed in accordance with sub-paragraph (1)(d) above;

(b) on the election date in the year 2003 and every third year thereafter,

(i) one Commissioner shall be elected in accordance with sub-paragraph (1)(a) above,

(ii) two Commissioners shall be elected in accordance with sub-paragraph (1)(b) above, and

(iii) one Commissioner shall be appointed in accordance with sub-paragraph (1)(e) above;

(c) on the election date in the year 2004 and every third year thereafter,

(i) one Commissioner shall be elected in accordance with sub-paragraph (1)(a) above,

(ii) one Commissioner shall be elected in accordance with sub-paragraph (1)(b) above, and

(iii) two Commissioners shall be elected in accordance with sub-paragraph (1)(c) above.

(3) The term of office for all Commissioners shall be three years.

Application procedure

4.—(1) All persons seeking election or appointment under article 3(1) shall submit an application form to the Commissioners by the application date in the year preceding the election date.

(2) The Commissioners shall cause the said application date and application format set out in paragraphs (3) to (5) below to be advertised in at least one newspaper published or circulating in Fraserburgh not less than six days previous to the application date.

(3) The application form shall contain the following information—

(a) the name and address of the applicant;

(b) a statement as to under which sub-paragraph of article 3(1) the application is made;

(c) for applications made under article 3(1)(c), a statement that the applicant appears on the electoral register as defined in article 6(1)(c);

(d) for applications made under article 3(1)(d), a statement that the applicant is a qualifying staff member of the Commissioners;

(e) for applications made under articles 3(1)(d) and 3(1)(e), a declaration of interests as set out in Schedule 1;

(f) such biographical information as the applicant sees fit to supply.

(4) Applications made under articles 3(1)(a), (b) and (c) shall be accompanied by nomination papers as follows—

(a) applications made under article 3(1)(a) shall be accompanied by no fewer than four nomination papers from persons whose names appear on the list of shipowners as defined in article 6(1)(a);

(b) applications made under article 3(1)(b) shall be accompanied by no fewer than four nomination papers from persons whose names appear on the list of harbour ratepayers maintained in accordance with article 6(1)(b);

(c) applications made under article 3(1)(c) shall be accompanied by no fewer than four nomination papers from persons whose names appear on the electoral register as defined in article 6(1)(c).

(5) Nomination papers shall contain a statement that the nominating person nominates the person seeking election and shall be signed by the nominating person.

Interviews and selection

5.—(1) There shall be an appointing body consisting of the following three persons, none of whom shall have made an application under article 4:—

(a) the Convenor of Commissioners unless the Convenor has made an application under article 4, in which case another Commissioner nominated by the Commissioners;

(b) a person who is not a Commissioner, who shall be nominated by the Commissioners and considered to represent the interests of one or more groups of persons interested in Fraserburgh Harbour; and

(c) the Chief Executive of Aberdeenshire Council or the nominee of the Chief Executive.

(2) The appointing body shall meet as soon as practicable after the application date to consider the applications made under article 4 and in any event within one week of the application date.

(3) The appointing body shall interview applicants as it sees fit.

(4) The appointing body shall decide whether those persons who have applied under articles 3(1)(a), (b) and (c) shall be candidates in the election.

(5) The appointing body shall decide which persons who have applied under articles 3(1)(d) and (e) shall be appointed as Commissioners.

(6) The appointing body shall have particular regard to the following considerations when making decisions under paragraphs (4) and (5):—

(a) the special knowledge, experience or ability of applicants to contribute to the efficient and economic discharge by the Commissioners of their functions;

(b) the special knowledge, experience or ability of applicants in one or more of the following matters—

(i) management of harbours;

(ii) shipping or other forms of transport;

(iii) the fishing industry;

(iv) sailing and other water-related leisure activities;

(v) navigation;

(vi) industrial, commercial or financial matters;

(vii) administration;

(viii) the law relating to Scotland;

(ix) safety;

(x) personnel management;

(xi) environmental matters affecting harbours;

(xii) any other skills and matters considered relevant from time to time by the Commissioners to the discharge by them of their functions;

(c) any guidance issued by the Scottish Ministers from time to time with respect to the exercise of such functions.

Registers

6.—(1) The Commissioners shall cause the following lists to be made up:—

(a) a list of shipowners, being those persons—

(i) who have a place of business in the parish; and

(ii) on 1st November preceding the application date whose names appear in the register of British fishing vessels under Part II of the Merchant Shipping Act 1995 as owner or part-owner of a fishing vessel;

(b) a list of harbour ratepayers, being those persons—

(i) who reside or have their place of business in the parish and,

(ii) during the year ending 31st October preceding the application date, have paid as principal £50 or more of rates to the Commissioners; and

(c) a list of parishioners, being those persons who appear on the register of electors for the electoral wards of Buchan North, Buchan North East, Central Buchan, Fraserburgh East, Fraserburgh North, Fraserburgh South, Fraserburgh West and Lonmay & St. Fergus held by Aberdeenshire Council and last published in the year preceding the application date.

(2) For the purpose of making up the list of ratepayers of the harbour, the Commissioners shall cause to be entered in a book or books kept by them the name and designation of every such person and the total amounts of such rates paid by such person during the period of 12 months ending 31st October in that year, which book or books shall be open to public inspection at all times during the hours of business.

(3) Where rates are paid or a ship or share in a ship is owned by any company or partnership consisting of two or more members or partners having a place of business within the parish, such company or partnership may, before expiration of the first week of November immediately preceding the election, intimate in writing to the Commissioners the name of any one of the members or partners by whom such payment shall be deemed to have been made or by whom such ship or share in a ship shall be deemed to be owned, and such payment or such ship or share in a ship, as the case may be, shall, for the purposes of the election, be deemed to be made or owned, as the case may be, by the member or partner so named, if resident within the parish, and the member or partner so named shall be qualified to be an elector, and to nominate the elected Commissioners, in the same manner as if such payment had been made or such ship or share in a ship had been owned by that person as an individual, provided that the amount of rates paid by such company or partnership, be sufficient to afford the qualification in sub-paragraph (1)(b) above in respect of rates to each of the members or partners so named.

Elections

7.  The following rules shall be observed with respect to the elections for Commissioners under articles 3(1)(a), (b) and (c):—

(1) At least 7 days previous to each election the Commissioners shall make available for inspection at the office of the Commissioners and at the office of the clerk a copy of the lists of electors made up in the manner prescribed in article 6;

(2) The convenor of the Commissioners shall fix the place of the elections, which shall be within the parish;

(3) The Commissioners shall cause the day and place of the election to be advertised in at least one newspaper published or circulating in Fraserburgh not less than thirteen days previous to the election;

(4) The returning officer shall be the Sheriff Principal of the sheriffdom of Grampian, Highlands and Islands or such other person as may be appointed by the Sheriff Principal and the returning officer shall preside at the polling place;

(5) The convenor of the Commissioners may be appointed returning officer under paragraph (4) of this article provided that the convenor is not a candidate at the elections;

(6) Any application by a candidate may be withdrawn by notice of withdrawal to the returning officer and such notice of withdrawal shall be signed by the person who made the application;

(7) If there are no more approved candidates than the number to be elected in a particular class the returning officer shall on or before the Wednesday preceding the election cause public notice to be given of the persons so nominated, which notice shall be affixed in some place accessible to the public within the office of the Commissioners or in some conspicuous place on the outside thereof and advertised in one or more newspapers published or circulating in Fraserburgh, and shall give notice that as the number nominated for election in such class does not exceed the number of vacancies to be filled at the election there will be no poll for that class, and shall further declare that the persons so proposed will on the day of election be deemed to be the elected Commissioners, and on the day of the election the persons so proposed shall accordingly be deemed to be duly elected;

(8) If there are more approved candidates for any of the classes than the number to be elected the returning officer shall order a poll which shall take place on the day fixed for the election and shall be by secret ballot;

(9) The returning officer shall appoint a sufficient number of poll clerks and cause proper polling books to be provided;

(10) Each poll clerk shall have at the polling place copies of the lists of electors certified by the clerk and the votes shall be taken according to such lists;

(11) The poll shall be open at ten o'clock in the forenoon of the day of election, and close at four o'clock in the afternoon of the same day;

(12) No returning officer or poll clerk officiating at any election shall vote at that election;

(13) At the close of the poll the returning officer shall sum up in the polling books the votes taken and shall thereafter sign the polling books, and shall forthwith transmit them to the clerk;

(14) Such of the persons who, being not more than the number of elected Commissioners at an election, shall be found to have the greatest number of valid votes at such election as appearing from the summation of the returning officer in the polling books, which shall be conclusive evidence of the number of votes and who are duly qualified in accordance with the provisions of this Order shall be deemed to be duly elected as Commissioners;

(15) In case of an equality in the number of votes at an election, the Commissioners at their first meeting to be held after such election shall, if necessary to prevent an excess in the number of elected Commissioners, determine by lot which of the persons having such equality of votes shall be the Commissioner or Commissioners.

Failure of election

8.—(1) In the case of the failure or partial failure at an time of the electors to make a valid election in terms of this Order of persons duly qualified to be elected Commissioners, the Commissioners shall, within six weeks after such failure shall have been ascertained, cause an election of such persons to be made according, in so far as may be, to the rules with respect to the annual elections of Commissioners; and any person so elected shall, in respect of continuance of office, be on the same footing as if the election of that person had taken place on the election date immediately preceding the date thereof.

(2) For the avoidance of doubt, if fewer candidates are nominated to take part in the election than the number of vacancies in any category, then the election for the remaining number shall be deemed to have failed.

(3) Without prejudice to the provisions of paragraph (1) above, if after an election pursuant to the provisions of paragraph (1) above there is still a vacancy in any class of Commissioners, the Commissioners may fill that vacancy by co-opting as a Commissioner any person duly qualified in accordance with the provisions of this Order and any person so co-opted shall, in respect of continuance in office, be on the same footing as if that person had been elected on the election date immediately preceding the co-option.

Casual vacancies

9.—(1) Subject to the provisions of paragraph (2) of this article, if a Commissioner refuses to accept office, or dies or resigns, or ceases to be qualified or becomes incapable of acting, the resulting vacancy shall be filled in manner following:—

(a) the Commissioners shall fill the vacancy by co-opting as a Commissioner any person duly qualified in accordance with the provisions of this Order, and the Commissioner so substituted shall continue in office for the period that the person in whose place the co-opted Commissioner is appointed would in the ordinary course have continued in office;

(b) at the end of such period the co-opted Commissioner shall go out of office but shall be eligible for re-election if qualified.

(2) Any casual vacancy occurring four months or less before the end of the vacating Commissioner’s normal term of office may, at the discretion of the remaining Commissioners, be left unfilled for the remainder of that term of office.

Transitional provisions

10.—(1) All Commissioners elected or appointed in accordance with the 1990 Act, except as specified in paragraph (2) below, shall remain in office for the term specified in that Act.

(2) The Commissioners appointed under paragraphs 4(1)(a) and (b) of the Schedule to the 1990 Act shall go out of office on the second Friday of January 2002.

(3) No further elections or appointments shall be made under the 1990 Act save for the filling of casual vacancies under section 14 of the Schedule to that Act.

Declaration of interests

11.  No Commissioner shall take part in any debate or vote on any matter in which that Commissioner has a personal, financial or other significant involvement; and at the start of any proceedings on such a matter such a Commissioner shall declare the interest and withdraw from the debate or vote.

Termination of office

12.—(1) If the Commissioners are satisfied that a Commissioner—

(a) has without the permission of the Commissioners been absent from meetings of the Commissioners—

(i) during a period when three such meetings have been held; or

(ii) for a period of three consecutive months;

whichever of those periods is the longer; or

(b) has become bankrupt or made an arrangement with the creditors of the Commissioner; or

(c) is incapacitated by physical or mental illness from discharging the functions of a Commissioner; or

(d) is otherwise unable, unwilling or unfit to discharge the functions of a Commissioner;

the Commissioners may declare the office of such a Commissioner vacant and thereupon the office shall become vacant.

(2) Any Commissioner may resign office at any time upon giving to the Commissioners not less than three weeks' written notice of such intention.

Indemnity insurance

13.  The Commissioners shall enter into, and pay premiums for, a contract of insurance to indemnify the Commissioners jointly or severally against personal liability arising from any act or omission of the Commissioners or of any of them; not being an act or omission which the Commissioner or Commissioners in question knew to be a breach of duty or, concerning which, was or were reckless as to whether it was such a breach.

Convenor of Commissioners etc.

14.  On and after the election date in 2002 the provisions of Schedule 2 to this Order shall have effect with respect to the Commissioners.

MISCELLANEOUS

Statement of accounts

15.  As soon as reasonably practicable after their annual statement of accounts is prepared the Commissioners shall make available a copy of the statement, for a period of three months from the date of approval of the accounts by the Harbour Board, at the offices of the Commissioners for inspection free of charge by members of the public and shall, subject to the payment of a reasonable charge, supply a copy of the statement to any person who requests to be supplied with a copy.

Borrowing powers

16.—(1) Subject to paragraph (2) below, the Commissioners may from time to time borrow upon the security of their assets for the time being or of their revenues or both their assets and revenues, by any methods they see fit—

(a) such sums of money as they think necessary not exceeding eight million pounds; and

(b) with the consent of the Scottish Ministers, such further sums of money as they may require.

(2) In calculating the aggregate sums of money borrowed by the Commissioners under paragraph (1) above, there shall be excluded any sums borrowed for the purpose of repaying within 12 months of the date of borrowing any sum for the time being outstanding by way of principal on any amount previously borrowed.

(3) Moneys borrowed by the Commissioners under this article shall be applied only to purposes for which the Commissioners may apply such money under any statutory provision.

(4) For the purposes of paragraph (3) above, but without prejudice to the generality of that paragraph, purposes to which capital money is properly applicable shall be deemed to include—

(a) the payment of any interest, falling due within five years immediately following the date of borrowing, on any sum of money borrowed by the Commissioners under this article; and

(b) the repayment, within twelve months from the date of borrowing, of any sum for the time being outstanding by way of principal on any amount previously borrowed.

Annual increase in borrowing limit

17.—(1) On each anniversary of the new constitution date the Commissioners shall adjust the sum mentioned in article 16(1)(a) above in line with any movement (calculated to one decimal place) in RPI which occurred during the year ended on 31st December immediately preceding the anniversary in question.

(2) Any adjustment made under paragraph (1) above shall be recorded in the next following annual statement of accounts prepared by the Commissioners.

(3) In paragraph (1) above, “RPI” means the general index of retail prices for all items published in the monthly publication of the Office for National Statistics known as the “Monthly Digest of Statistics”, or any successor from time to time of that index.

Amendments

18.  For the definition of “Commissioners” in section 2 of the Fraserburgh Harbour Order 1985 there shall be substituted—

““Commissioners” means the Fraserburgh Harbour Commissioners holding office under the authority of the Fraserburgh Harbour Order 1990 or the Fraserburgh Harbour Revision (Constitution) Order 2001.”.

Repeals

19.  On the new constitution date the enactments mentioned in the first and second columns of Schedule 3 to this Order (which include spent enactments) shall be repealed to the extent specified in the third column of that Schedule.

A member of the Staff of the Scottish Ministers

Victoria Quay,

Edinburgh

11th December 2001

Article 4

SCHEDULE 1 DECLARATION OF INTERESTS

Article 14

SCHEDULE 2 INCIDENTAL PROVISIIONS RELATIING TO COMMISSIONERS

Appointment of convenor and vice-convenor of Commissioners

1.  There shall be a convenor of the Commissioners who shall be appointed by the Commissioners from among their number.

2.  The first convenor taking office after the new constitution date shall be appointed at the first meeting of the Commissioners referred to in paragraph 9 below.

3.  Subject to paragraph 7 below, every convenor appointed under paragraph 1 above shall, unless resigning office as convenor or ceasing to be Commissioner, hold office for a period of one year.

4.  There shall be a vice-convenor of the Commissioners who shall be appointed by the Commissioners from among their number.

5.  The first vice-convenor holding office after the new constitution date shall be appointed as soon as practicable after that date.

6.  Subject to paragraph 7 below, every vice-convenor appointed under paragraph 4 above shall, unless resigning office as vice-convenor or ceasing to be a Commissioner, hold office for a period of one year.

7.  If the Commissioners are satisfied that the convenor or vice-convenor should cease to hold office as such, they may terminate the appointment and appoint another member to be convenor or vice-convenor during the remainder of the term for which the former convenor or vice-convenor was appointed.

8.—(1) On a casual vacancy occurring in the office of convenor or vice-convenor of the Commissioners, the vacancy shall be filled by the Commissioners at a meeting held as soon as practicable after the vacancy occurs.

(2) A Commissioner appointed under this paragraph to fill a casual vacancy in the office of convenor or vice-convenor shall, unless resigning that office or ceasing to be a Commissioner, hold that office during the remainder of the term for which the convenor or vice-convenor who is replaced was appointed.

Meetings of Commissioners

9.—(1) The first meeting of the Commissioners after the new constitution date shall be convened as soon as practicable after that date, and arrangements shall be made for notice of that meeting to be sent by post to each of the Commissioners.

(2) The Commissioners shall meet at least six times in every year.

Reappointment of Commissioners

10.—(1) Subject to the provisions of this Schedule, a vacating Commissioner shall be eligible for reappointment or re-election as a Commissioner unless that Commissioner has been disqualified from office under Article 12 above.

(2) A vacating Commissioner shall not be eligible for reappointment or re-election as a Commissioner where, immediately before appointment, the Commissioner has held office for three consecutive terms.

(3) For the purposes of this paragraph, “term” does not include—

(a) the remainder of a term during which the Commissioner was appointed to fill a casual vacancy under article 9 above; or

(b) any term served by the Commissioner prior to the new constitution date.

Committees

11.  The Commissioners may, consistently with their duties and subject to such conditions as they think fit, delegate any of their functions to a committee of the Commissioners.

Proceedings of Commissioners and committees

12.  The acts and proceedings of the Commissioners, or any committee of the Commissioners, shall not be invalidated by any vacancy in their number or by any defect in the appointment, or the qualification for appointment, of any person as a Commissioner, or as convenor or vice-convenor, of the Commissioners or committee.

13.  The quorum required for a meeting of the Commissioners or any committee of the Commissioners shall be four.

14.  If a Commissioner is in any way directly or indirectly interested in any contract or proposed contract to which the Commissioners are, or would be, a party and is present at a meeting of the Commissioners or of any committee of the Commissioners at which that contract is the subject of consideration, that Commissioner shall as soon as practicable after the commencement of the meeting disclose that fact at the meeting and shall leave the meeting and not take part in any deliberation or decision of the Commissioners or committee with respect to that contract.

15.  The person for the time being holding office as vice-convenor shall have and may exercise in the absence of the convenor all the powers of the convenor.

16.  If at any meeting of the Commissioners neither the convenor nor the vice-convenor are present the Commissioners present at the meeting shall choose one of their number to be the convenor of the meeting.

17.—(1) Every question at a meeting of the Commissioners or of a committee of the Commissioners shall be decided by a majority vote of the Commissioners present and voting.

(2) If at any meeting of the Commissioners or of a committee of the Commissioners there is an equality of votes on any question the convenor of the meeting shall have a second or casting vote.

Authentication of seal

18.—(1) The application of the seal of the Commissioners shall be authenticated by the signature of the convenor of the Commissioners or some other Commissioner authorised by the Commissioners to authenticate the application of the seal, and of the Harbour Master/Harbour Clerk of the Commissioners or some person authorised by the Commissioners to act in the place of the Harbour Master/Harbour Clerk in that behalf.

(2) The Commissioners may authorise a person to act instead of the Harbour Master/Harbour Clerk under this paragraph whether or not the Harbour Master/Harbour Clerk is absent or incapable of acting.

(3) Any notice, licence or other document given or issued by the Commissioners shall, unless the contrary intention is expressed, be sufficiently authorised if signed by the Harbour Master/Harbour Clerk or a duly authorised officer of the Commissioners.

Remuneration of Commissioners

19.  The Commissioners may pay to the convenor and other Commissioners such salary, allowances and expenses as the Commissioners from time to time determine.

General

20.  Subject to the provisions of this Schedule, the procedure and business of the Commissioners and of any committee of the Commissioners shall be regulated in such manner as the Commissioners from time to time determine.

Article 20

SCHEDULE 3 REPEALS

Chapter	Short Title	Extent of repeal
1975 c. xiii.	Fraserburgh Harbour Order Confirmation Act 1975	The whole Act.
1985 c. xlv.	Fraserburgh Harbour Order Confirmation Act 1985	Sections 16, 25, 26, 80 and Schedule 1.
1985 c. xlvi.	Fraserburgh Harbour (No.2) Order Confirmation Act 1985	The whole Act.
1990 c. xxxii.	Fraserburgh Harbour Order Confirmation Act 1990	Sections 4 to 14 of the Schedule.

Explanatory Note

(This note is not part of the Order)

This Order re-constitutes the Fraserburgh Harbour Commissioners in line with the recommendations of the Trust Ports Review, published by the Department of the Environment, Transport and the Regions in January 2000 and endorsed by the Scottish Ministers.

The Order increases the Commissioners' borrowing limit from £6,000,000 to £8,000,000.

(1)

1964 c. 40; section 14 was amended by the Transport Act 1981 (c. 56), section 18 and Schedule 6, paragraphs 2 to 4 and 14, and by the Transport and Works Act 1992 (c. 42), section 63(1) and Schedule 3, paragraph 1.

(2)

The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46).

(3)

1985 c. xlv.

(4)

1990 c. xxxii.

(5)

S.S.I. 1995/1527.

(6)

S.S.I. 1999/40.