1.—(1) This Order may be cited as the Lerwick Harbour Revision (Constitution) Order 2019 and comes into force on the day after the day on which it was made.
(2) This Order and the Lerwick Harbour Acts and Orders 1877 to 2015 (as hereinafter defined) may be cited together as the Lerwick Harbour Acts and Orders 1877 to 2019 (hereinafter referred to as “the Lerwick Harbour Acts and Orders”.)
2. Section 60 of the Commissioners Clauses Act 1847(1) shall be incorporated with this Order.
3. In this Order—
“the 1877 Act” means the Lerwick Harbour Improvements Act 1877(2),
“the 1999 Order” means the Lerwick Harbour Revision Order 1999(3),
“the 2003 Order” means the Lerwick Harbour Revision (Constitution) Order 2003(4),
“the 2015 Order” means the Lerwick Harbour Revision Order 2015(5),
“the application date” means the last Friday of May in each year,
“the appointment date” means the second Tuesday in July of each year,
“the Authority” means Lerwick Port Authority,
“the Board” means the Board of Lerwick Port Authority,
“Existing Member” means a Member of the Board holding office under the 2003 Order,
“harbour” means the Port and Harbour of Lerwick as defined by the Lerwick Harbour Acts and Orders,
“the Lerwick Harbour Acts and Orders 1877 to 2015” means the 1877 Act, the Lerwick Harbour Improvements Act 1877 Amendment Order Confirmation Act 1903(6), the Lerwick Harbour Order Confirmation Act 1911(7), Lerwick Harbour Order Confirmation Act 1927(8), the Lerwick Harbour Order Confirmation Act 1952(9), the Lerwick Harbour Order Confirmation Act 1971(10), the Lerwick Harbour Order Confirmation Act 1973(11), the Lerwick Harbour Order Confirmation Act 1974(12), the Lerwick Harbour (Miscellaneous Provisions) Order Confirmation Act 1975(13), the Lerwick Harbour Order Confirmation Act 1976(14), the Lerwick Harbour Order Confirmation Act 1979(15), the Lerwick Harbour Order Confirmation Act 1982(16), the Lerwick Harbour Revision Order 1982(17), the Lerwick Harbour Order Confirmation Act 1985(18), the Lerwick Harbour Order Confirmation Act 1987(19), the Lerwick Harbour Revision Order 1989(20), the Lerwick Harbour Revision Order 1993(21), the Lerwick Harbour Order Confirmation Act 1994(22), the Lerwick Harbour Revision Order 1994(23), the Lerwick Harbour Revision Order 1997(24), the 1999 Order, the Lerwick Harbour Revision Order 2001(25), the 2003 Order, the Lerwick Harbour Revision Order 2007(26), the Lerwick Harbour Revision Order 2010(27) and the 2015 Order, and
“Member” means a Member of the Board holding office either under the 2003 Order or this Order as the case may require.
4.—(1) On and after the date on which this Order comes into force, in accordance with the provisions of this article 4, the Members of the Board shall be—
(a)such persons holding office as Members under the 2003 Order, whose terms of appointment are yet to expire,
(b)such persons appointed by the appointing body on or after the date on which this Order comes into force, in accordance with articles 5 and 6 of this Order,
(c)the Chief Executive of the Authority,
(d)one other senior officer of the Authority as may, from time to time, be specified by the Members holding office under subparagraphs (a) and (b) above, and
(e)the persons holding office in terms of subparagraphs (a) and (b) shall together never number more than nine in total.
(2) Any Members appointed under articles 4(1)(b), 5 and 6 shall, unless appointed to fill a casual vacancy and subject to articles 7, 8 and 9 of this Order, hold office for the period of three years from the relevant appointment date.
(3) After the date on which this Order comes into force, Members, with the exception of those members holding office under articles 4(1)(c) and (d), shall be appointed in accordance with the procedure set down in articles 5 and 6 of this Order.
5.—(1) All persons seeking appointment under article 4(1)(b) shall submit an application form to the Board by the application date in the year of the appointment date.
(2) The Board shall cause the application date and application procedure set out in paragraph (3) below and article 6 to be advertised in at least one newspaper published or circulating in the Shetland Islands not later than the second Friday of May.
(3) The application form shall contain the following information—
(a)the name and address of the applicant,
(b)a declaration of interests in such form as may be prescribed by the Board from time to time containing particulars of all sources of income, business interests, securities held interest in any land in the vicinity of the Harbour and any other matter which might reasonably be conceived as having the potential to lead to a conflict of interest with the duties of a Member,
(c)such other information as the Board may see fit to require, and
(d)such biographical information as the applicant sees fit to supply.
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 Chair unless the Chair has made an application under article 5, in which case another Member nominated by the Board,
(b)a person who is not a Member who shall be nominated by the Board and is considered by them to be representative of persons with an interest in the Harbour, and
(c)the Convener of Shetland Islands Council or the nominee of Shetland Islands Council.
(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 by the first Friday of July.
(3) The appointing body may interview such of the applicants as it sees fit.
(4) The appointing body shall decide which persons who have applied under article 5 shall be appointed as Members.
(5) The appointing body shall have particular regard to the following considerations when making decisions under paragraphs (3) and (4)—
(a)the special knowledge, experience or ability of applicants to contribute to the efficient, effective and economic discharge by the Board of their functions, and
(b)the special knowledge, experience or ability of applicants in one or more of the following matters—
(i)management of harbours,
(ii)usage of port facilities,
(iii)commercial boating activities,
(iv)industrial, commercial and financial matters,
(v)administration,
(vi)the organisation of employees,
(vii)the fishing industry,
(viii)financial management,
(ix)the laws relating to Scotland,
(x)safety management,
(xi)commercial marketing,
(xii)environmental matters affecting harbours,
(xiii)civil engineering,
(xiv)local government and local community interests,
(xv)recreational, sporting and leisure activities including without prejudice to the generality, recreational and competitive boating activities, and
(xvi)any other skills and matters considered from time to time by the Board to be relevant to the discharge of its functions.
(c)the appointing body shall secure, so far as reasonably practicable, that the persons appointed by them will, between them, have special knowledge, experience and ability in a broad and complementary range of matters relevant to the efficient, effective and economic discharge by the Board of its functions, and
(d)any guidance issued by the Scottish Ministers from time to time with respect to the discharge of such functions.
7.—(1) The appointing body shall not appoint as a Member a person who, immediately before appointment, has served three consecutive terms of office unless that person is the Chair or Deputy Chair or falls subject to the terms of article 7(3) below.
(2) A Chair or Deputy Chair shall not be eligible for reappointment as a Member where, immediately before appointment, that person has held office as a Member for four consecutive terms.
(3) Where a person is an Existing Member, that person shall not be eligible for reappointment as a Member where, immediately before appointment, that person has held office as a Member for four consecutive terms.
(4) No employee of the Board shall be eligible for appointment as a Member except under articles 4(1)(c) and (d).
(5) No person shall be capable of acting as a Member without having signed and delivered to the Chief Executive a declaration in the terms set out in Schedule 3 to this Order.
8. A Member may resign his/her membership at any time by giving notice in writing to the Chair.
9.—(1) If the Board is satisfied that a Member appointed under this Order—
(a)has been absent from meetings of the Board for three consecutive months without the permission of the Board, or
(b)has his/her estate sequestrated, becomes bankrupt or makes a trust deed for his/her creditors or otherwise compounds with his/her creditors, or
(c)is incapacitated by physical or mental illness from discharging the functions of a Member, or
(d)is otherwise unable or unfit to discharge the functions of a Member,
the Board may declare his/her office as a Member to be vacant and thereupon his/her office as Member shall become vacant.
(2) In the event that a Member appointed under this Order—
(a)within the period of two months from the date of the first meeting of the Board following his/her appointment as a Member, neglects to sign the declaration required in terms of article 7(4), or
(b)is absent from all meetings of the Board for six consecutive months,
such Member shall cease to be a Member and thereupon his/her office as Member shall become vacant.
10. In the case of the failure or partial failure at any time of appointment to fill any vacancy under the terms of this Order, the Board may fill up such a vacancy in accordance with article 11.
11. If a Member fails or refuses to accept office, or dies, or resigns, or becomes disqualified or ceases for any reason to be a Member then at the discretion of the Board the resulting vacancy shall be filled in the manner following—
(a)the Board shall fill the vacancy by co-opting as a Member any qualified person in terms of articles 6(5) and 7, and the Member so substituted shall continue in office for the period that the person in whose place the co-opted Member is appointed would in the ordinary course have continued in office, and
(b)at the end of such period the co-opted Member shall go out of office but shall be eligible for re-appointment, if qualified.
12. On and after the appointment date in the year 2019 the provisions of schedule 2 of this Order shall have effect with respect to proceedings of the Board.
13.—(1) Deeds and other documents to which the Authority is a party shall be executed in accordance with the provisions of the Requirements of Writing (Scotland) Act 1995.
(2) Any notice, licence, or other document given or issued by the Authority shall, unless the contrary intention is expressed, be sufficiently authorised if signed by the Chief Executive or duly authorised officer of the Authority.
14. As soon as reasonably practicable after their annual statement of accounts is prepared, the Authority shall make a copy of it available, for a period of three months from the date of the preparation, at the offices of the Authority 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.
15. The Authority may enter into, and pay premiums for, a contract of insurance to indemnify the Members jointly or severally against personal liability arising from any act or omission of the Members or of any of them not being an act or omission which the Member or Members in question knew to be a breach of duty or, concerning which, was or were reckless as to whether it was such a breach.
16. The 1999 and 2003 Orders shall be repealed or revoked to the extent and at the times specified in the third column of Schedule 1 to this order.
17. Article 1(2) of the 2015 Order is amended by deleting “2014” and substituting “2015”.
CHRIS WILCOCK
A member of the staff of the Scottish Ministers
St Andrew’s House,
Edinburgh
11th April 2019