Harbours, Docks, Piers And Ferries PART 1 PRELIMINARY Citation and commencement 1 1 This Order may be cited as the Whitehills Harbour and Marina (Constitution) Order 2013 and comes into force on the day after the day on which it was made. 2 The Whitehills Harbour Order 1895 and this Order may be together cited as the Whitehills Harbour Orders 1895 to 2013. Interpretation 2 In this Order— “the 1847 Act ” means the Harbours, Docks and Piers Clauses Act 1847 ; “the 1895 Order ” means the Whitehills Harbour Order 1895 confirmed by the Pier and Harbour Orders Confirmation ( No. 2) Act 1895, Session 2; “application date” means the third Tuesday in November; “appointing body” has the meaning given by article 6(1); “appointment date” means the third Tuesday in December; “the Commissioners” means the Whitehills Harbour Commissioners holding office under the 1895 Order or this Order as the case may require; “convenor” means the convenor of Commissioners elected according to paragraph 1 of Schedule 2; “the harbour” means the harbour of Whitehills under the management and control of the Commissioners and as defined in section 19 of the 1895 Order; “the new constitution date” means the appointment date in the year 2013. Incorporation of the 1847 Act 3 1 Sections 1 to 4, 34, 35, 37 to 39, 42, 51, 54, 55 and 63 to 65 of the 1847 Act are incorporated with this Order subject to the modifications stated in paragraphs (2) to (4). 2 Section 63 (penalty on vessels lying near the entrance of harbour or dock without permission) shall have effect subject to the modification that for the words from “be liable to” to the end of the section there are substituted the words “be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale”. 3 Section 65 (harbour master may remove vessel for purpose of repairing harbour or dock if the master neglects or refuses to do so) shall have effect subject to the omission of the words from “Provided always” to the end of the section. 4 In construing the provisions of the 1847 Act as incorporated with this Order— a the expression “the special Act ” means this Order, the expression “the undertakers” means the Commissioners and the expression “the harbour, dock, or pier” shall mean the harbour; and b for the definition of the word “vessel” in section 3 (interpretations in this and the special Act) there shall be substituted the definition of that word in paragraph (1) of article 2 (interpretation). PART 2 CONSTITUTION Constitution of Commissioners 4 1 On and after the new constitution date— a all Commissioners elected or appointed in accordance with the 1895 Order shall continue in office for the remainder of their elected or appointed term of office under that Order; and b subject to (a), the Commissioners shall consist of— i three persons appointed by the appointing body in 2013 and every third year thereafter; ii three persons appointed by the appointing body in 2014 and every third year thereafter; and iii three persons appointed by the appointing body in 2015 and every third year thereafter. 2 The term of office for all Commissioners shall be three years. 3 Subject to the provisions of paragraph 10(2) of Schedule 2 to this Order, a vacating Commissioner shall be eligible to apply for appointment or reappointment under this Order. 4 The Commissioners shall continue to be a body corporate under the name or style of “the Whitehills Harbour Commissioners”. Application procedure 5 1 All persons seeking appointment under article 4(1) shall submit an application form to the Commissioners by the application date. 2 The Commissioners shall cause the said application date and the information to be supplied by an applicant as set out in paragraph (3) to be advertised in at least one newspaper published or circulating in Whitehills not less than fourteen days beforehand. 3 A completed application form must contain the following information— a the name and address of the applicant; and b such other biographical information as the Commissioners may require. 4 The Commissioners shall be entitled to reject an incomplete application. Interviews and selections 6 1 There shall be an appointing body consisting of the following three persons, none of whom shall have made an application under article 5— a the Convenor of Commissioners unless the convenor has made an application under article 5, 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 by them to represent persons or one or more groups of persons with an interest in the harbour; and c an independent person appointed by the Commissioners. 2 The appointing body shall meet as soon as practicable after the application date to consider the applications made under article 5 and in any event within two weeks of the application date. 3 The appointing body shall interview applicants if and as it sees fit. 4 The appointing body shall decide which persons who have applied under article 5(1) shall be appointed as Commissioners and shall make those appointments accordingly. 5 The appointing body shall have particular regard to the following considerations when making decisions under paragraph (4)— a the knowledge, experience or ability of applicants to contribute to the efficient and economic discharge by the Commissioners of their functions; b the knowledge and experience of applicants of the harbour and the practicalities of attendance at meetings and participation in the running of the harbour; c the 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 tourism; vi local community interests; vii legal or accountancy services; viii navigation; ix industrial, commercial or financial matters; x administration; xi the law relating to Scotland; xii safety; xiii personnel management; xiv environmental matters affecting harbours; xv any other skills and matters considered relevant from time to time by the Commissioners to the discharge by them of their functions; and d where not inconsistent with this Order any guidance issued by the Scottish Ministers from time to time with respect to the exercise of functions such as those of the Commissioners. Failure of appointment 7 In the case of the failure or partial failure at any time of an appointment to fill a vacancy under the terms of this order, including the case where there are fewer applicants for a vacancy to be filled by the appointing body under paragraph (4) of article 6, the Commissioners may fill that vacancy by co-opting as a Commissioner any person whom they consider to be suitable having regard to 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 appointed on the appointment date immediately preceding the co-option. Casual vacancies 8 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 the following manner— 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 reappointment 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. Declaration to be made by Commissioner 9 No person shall be capable of acting as a Commissioner until the declaration set out in Schedule 1 to this Order has been made; and a person shall cease to be a Commissioner if that declaration has not been made within one month of the date of appointment. Termination of office 10 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, unsuitable (in the opinion of the Commissioners) 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 be 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 11 The Commissioners may 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. 12 On and after the new constitution date the provisions of Schedule 2 to this Order shall have effect with respect to the Commissioners. PART 3 MISCELLANEOUS Statement of accounts 13 As soon as reasonably practicable after their annual statement of accounts is prepared the Commissioners shall make available for inspection free of charge by members of the public a copy of the statement for a period of three months from the date of approval of the accounts at the offices of the Commissioners 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 14 The Commissioners may from time to time borrow, by any methods they see fit, such sums of money as they think necessary for the purposes of meeting their obligations in carrying out their functions; and where moneys are borrowed by the Commissioners under this article, the Commissioners may, if they see fit, borrow those moneys upon the security of their assets or of their revenues or of both their assets and their revenues. Repeals 15 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. JOHN NICHOLLS A member of the staff of the Scottish Ministers St Andrew’s House, Edinburgh 31st October 2013