The Scottish Milk Marketing Scheme (Consolidation) Approval Order 1989

• (a) There shall be a committee of the Board to be known as the Disciplinary Committee, constituted, at each sitting thereof, of not less than 4 nor more than 6 members of the Board and a chairman who is not a member of the Board but is an independent person who is an advocate of not less than 7 years' standing, or a solicitor of not less than 7 years' standing, and is approved by the Minister.

• (b) No penalty shall be imposed on a registered producer under this section except after a hearing by the said Committee and by the decision thereof, taken in accordance with the opinion of all or the majority of the members thereof, provided that, if there is an equal division of opinion, the opinion of the chairman shall prevail. At any such hearing the producer shall be entitled to appear and be heard in person or by counsel or solicitor or by any other person authorised by him.

• (c) Notice of the time and place of every such hearing and a written statement of the charge against the producer in question shall be served personally or by registered post on that producer at least 14 days before the hearing.

• (d) No penalty shall be imposed for any contravention which occurred more than 6 years before the service of the said written statement of the charge.

• (e) Where such a written statement of a charge against a producer has been sent to or served on him as aforesaid and the charge is withdrawn or is not substantiated before the said Committee, the Board shall have the power, and, to such extent as the said Committee may decide, the duty, to make payments to the producer in respect of his expenses in connection with the charge.

• (f) The said Committee, if they find that a contravention has occurred, may postpone the imposition of a penalty for a period not exceeding 12 months.

• (3) As soon as may be after the Disciplinary Committee have concluded the hearing of a case written notice of their decision shall be sent to the registered producer in question and he may, on or before the 14th day after the date on which the notice was so sent to him, give notice to the Board referring the matter to arbitration under the provisions of the Scheme, and, if the matter is so referred, no proceedings shall be taken by the Board otherwise than for the purposes of the arbitration or to enforce the award of the arbiter; and the arbiter may award payment by the producer of such penalty or other sums as he thinks just but not exceeding the maximum penalty or other sums respectively which could have been imposed or required by the Disciplinary Committee.

• (4) The said Committee shall have the power to reconsider their decision in relation to the case of any such producer if, upon considering any written application in that behalf by the registered producer in question made within 3 months after the date of the original hearing by the said Committee, they are satisfied that—

• (a) there may be facts relevant to the case other than the facts which were before the Committee at the original hearing, and

• (b) if such other facts had been previously known to the Committee, their decision would have been influenced thereby, and

• (c) the matter has not been referred to arbitration under subsection (3).

• (5)

• (a) If under subsection (4) the said Committee decide to reconsider any case it shall be their duty to rehear the case, and, if as a result they are of opinion that a substantial miscarriage of justice has occurred, they shall vary the previous decision of the Committee, and the Board shall thereupon give effect to such variation.

• (b) The provisions of paragraph (b) of subsection (2) and subsection (3) shall apply to every such rehearing.

• (6) Subject as aforesaid every penalty imposed and every sum required to be paid by a decision of the Disciplinary Committee shall be a debt due to the Board and recoverable accordingly.

• (7) Where a contravention of a provision of the Scheme or of a determination of the Board (being a contravention in respect of which the Board have the duty to recover a penalty) causes loss to the Board, the provisions of section 10 of the Act shall apply.

• (8) A person whose name appeared upon the register of producers at the date when he contravened any provision of the Scheme shall, notwithstanding that his name has since been removed from the register, be deemed to remain a registered producer for the purpose only of this section.

Arbitration in cases where producers are aggrieved

35

• (1) In the event of any producer being aggrieved by any act or omission of the Board he may make application to the Board demanding that the matter be referred to an arbiter appointed by the Minister, and the Board shall, within 14 days of the receipt of any such application, apply to the Minister for the appointment of an arbiter. If a person appointed dies or is incapable of acting, or for 7 days after written notice from either party to the dispute requiring him to act, fails to act, a new arbiter may be appointed by the Minister, as if no arbiter had been appointed.

• (2) Time for award. The arbiter shall make and sign his award within 28 days of his appointment.

• (3) Evidence

• (a) The parties to the arbitration, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbiter on oath or affirmation in relation to the matters in dispute and shall, subject as aforesaid, produce before the arbiter all samples, books, deeds, papers, accounts, writings and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings the arbiter may require.

• (b) The arbiter shall have power to administer oaths and to take the affirmation of parties and witnesses appearing, and witnesses shall, if the arbiter thinks fit, be examined on oath or affirmation.

• (4) The award

• (a) If the arbiter finds that the Board shall be required to rectify any matter, the subject of the reference, the award shall state the manner in which, and the date as and from which the matter shall be rectified by the Board.

• (b) The award of the arbiter shall be final and binding on the parties.

• (c) The arbiter may correct in an award any clerical mistake or error arising from an accidental slip or omission.

• (5) Expenses

• (a) The expenses of and incidental to the arbitration and award shall be in the discretion of the arbiter, who may direct to and by whom and in what manner and within what time those expenses or any part thereof are to be paid, and the expenses shall be subject to taxation by the auditor of the Sheriff Court on the application of either party, but that taxation shall be subject to review by the Sheriff.

• (b) The arbiter shall, in awarding expenses, take into account the reasonableness or unreasonableness of the claim of the producer concerned either in respect of amount or otherwise and any unreasonable demand for particulars or refusal to supply particulars by either party, and generally all the circumstances of the case, and may disallow the expenses of any witness whom he considers to have been called unnecessarily, and any other expense which he considers to have been incurred unnecessarily.

Statutory polls

36

• (1) A statutory poll shall be taken in accordance with the provisions of this section.

• (2) The returning officer shall be such person as the Minister may, on the application of the Board, appoint. The remuneration and expenses of the returning officer shall be defrayed by the Board.

• (3) The returning officer may by writing under his hand appoint any fit person or persons to be his deputy or deputies for all or any of the purposes of the poll. A deputy returning officer shall have the powers and duties of the returning officer in relation to the matters in respect of which he is appointed to act as a deputy.

• (4) The Board shall furnish to the returning officer a list of the names and addresses of the registered producers who are entitled to vote on the poll.

• (5) The producers who are entitled to vote shall be the producers who are registered on such day as may be determined by the Board (hereinafter referred to as the “qualifying date”).

• (6) The poll shall be conducted by post and the returning officer shall, not later than the 14th day after the qualifying date, send a voting paper to every producer entitled to vote. In the event of the loss of a voting paper so sent the returning officer may supply a duplicate voting paper.

• (7) The voting paper shall be substantially in the form set out in Schedule (2) hereto, and only voting papers which are properly completed and which reach the office of the returning officer at or before 18.00 hours on the 28th day after the qualifying date shall be taken into account. Any person who knowingly makes any false statement in a voting paper shall be liable, on summary conviction, to imprisonment for a period not exceeding 3 months or to a fine not exceeding £100, or to both such imprisonment and fine.

• (8) For the purpose of any statutory poll the basis of determining the capacity of a registered producer to produce milk shall be the number of cows in his possession in the area of the Scheme at 12.00 hours on the qualifying date.

• (9) The votes given on any poll shall be counted by the returning officer and his decision on any question arising with respect to any vote shall be final and conclusive.

• (10) The returning officer shall draw up and deliver to the Minister and the Board a certificate showing the result of the poll, and including particulars of the number of voting papers sent out by the returning officer, the number of voting papers received by him timeously, the number of such papers which were rejected because they were not properly completed, and the number of registered producers who voted in favour of the amendment or revocation, as the case may be, of the Scheme and against it respectively, and the number of cows in their possession respectively in the area of the Scheme at 12.00 hours on the qualifying date.

• (11) The result of the poll as shown in the certificate given by the returning officer shall be published inThe Glasgow Herald, The Scotsman, The Courier and Advertiser, and such other newspapers as the Board may think fit.

Polls taken in accordance with section 41A of the Act

37

• (1) A poll under section 41A of the Act[^f00013] shall be taken in accordance with the provisions of this section as read with paragraphs (4), (5) and (6) of Article 2 of Council Regulation (EEC) No. 1422/78

• (2) The returning officer shall be such person as the Minister may, on the application of the Board, appoint. The remuneration and expenses of the returning officer shall be defrayed by the Board.

• (3) The returning officer may by writing under his hand appoint any fit person or persons to be his deputy or deputies for all or any of the purposes of the poll. A deputy returning officer shall have the powers and duties of the returning officer in relation to the matters in respect of which he is appointed to act as a deputy.

• (4) No member or servant of the Board and no producer shall be appointed as a returning officer or be appointed to be a deputy of the returning officer.

• (5) The Board shall obtain and furnish to the returning officer a list of the names and addresses of the registered producers who are entitled to vote in the poll and such other information as he may require for the purposes of conducting the poll and drawing up the certificate referred to in subsection (10).

• (6) The producers who are entitled to vote shall be the producers who are registered on such day (hereinafter referred to as the “qualifying date”) as may be determined by the Minister, but excluding any producer who has sent to the Board the declaration referred to in section 32(11).

• (7) The poll shall be conducted by post and the returning officer shall, not later than the 14th day after the qualifying date, send a voting paper to every producer entitled to vote. In the event of the loss of a voting paper so sent the returning officer may supply a duplicate voting paper.

• (8) The voting paper shall be substantially in the form set out in Schedule (3) hereto, and only voting papers which are properly completed and which reach the office of the returning officer at or before 18. 00 hours on the 28th day after the qualifying date shall be taken into account.

• (9) The votes cast in any poll shall be counted by the returning officer and his decision on any question arising with respect to any vote shall be final and conclusive.

• (10) The returning officer shall draw up and deliver to the Board a certificate showing the result of the poll, and including particulars of—

• (a) the number of voting papers sent out by the returning officer and the number of producer and production votes represented by them;

• (b) the number of valid voting papers received by him and the number of producer and production votes represented by them;

• (c) the number of voting papers received by him and declared not valid and the number of producer and production votes represented by them;

• (d) the number of voting papers not returned and the number of producer and production votes represented by them; and

• (e) the number of producer votes and production votes cast in favour of the question and against it respectively.

• (11) The result of the poll as shown in the certificate given by the returning officer shall be published inThe Glasgow Herald, The Scotsman, The Courier and Advertiser, and such other newspaper as the Board may think fit.

• (12) “Producer vote” and “production vote” have the meanings which they have in Article 2(4) of Council Regulation (EEC) No. 1422/78 concerning the granting of certain rights to milk producers' organisations in the United Kingdom.

Corrupt and illegal practices at statutory polls and penalties therefor

38

For the purpose of the Scheme corrupt and illegal practices committed in connection with any statutory poll shall have the meanings assigned to them in the Representation of the People Act 1983[^f00014], and any person guilty of any such practices in connection with any such poll shall, on summary conviction, be liable to the appropriate penalty or penalties specified in the said Act.

Accounts

39

• (1) The Board shall cause to be kept proper accounting records with respect to—

• (a) all sums of money received and expended by the Board, and the matters in respect of which the receipt and expenditure takes place;

• (b) all sales and purchases by the Board;

• (c) the assets and liabilities of the Board;

and the accounting records with respect to the Board’s commercial activities shall be kept separate from the accounting records with respect to the Board’s other activities.

• (2) The Board shall charge to its commercial activities such proportion of its general administrative expenses as is fairly attributable to such commercial activities.

• (3) Preparation of accounts. Following the end of each accounting period, the Board shall prepare, in respect of the accounting period, an Income and Expenditure Account for the fund established in accordance with section 26(3), and a Profit and Loss Account in respect of the Board’s commercial activities. The Board shall also prepare a Balance Sheet as at the date at which these Accounts are made up. The Accounts shall make separate provision for the Board’s commercial activities and for the Board’s other activities, and shall be in a form approved by the Minister.

• (4) Audit of accounts. The Board shall submit the accounts prepared under subsection (3) above for audit to the Auditor appointed under section 11. The Auditor shall examine the Accounts and shall verify the same with the accounting records relating thereto, and shall either sign the Accounts as found by him to show a true and fair view of the state of the Board’s affairs and of its results and to be in accordance with law, or shall report to the Board in what respect the Accounts do not show a true and fair view of the Board’s affairs and results and are not in accordance with law.

• (5) Submission of audited accounts to the Minister and to registered producers. Once in every year, the Board shall send to the Minister and to every registered producer, along with a notice calling the meeting at which the Accounts of the Board are to be submitted, the Accounts prepared in accordance with subsection (3) and the report of the Auditor thereon, together with a statement of the manner in which any moneys of the Board are invested in accordance with the provisions of subsection (12) of section 26, and such other information on the workings of the Scheme in the period covered by the Accounts as the Board may consider necessary for the information of registered producers.

• (6) Copy of Balance Sheet to be furnished to any person requiring it. The Board shall furnish a copy of the Balance Sheet to any person requiring it on payment of a fee to be determined by the Board which reasonably compensates the Board for the cost of furnishing such Balance Sheet.

• (7) The Board shall furnish the Minister with such information as he may from time to time require concerning the Board’s commercial activities and shall permit any person duly authorised in writing by the Minister, on production of his authority, to inspect such of the Board’s accounts and records as he may reasonably require to satisfy himself that the Board are complying with the requirements of sections 16 and 26(3) of the Scheme, of Council Regulation (EEC) No. 1422/78 and of Commission Regulation (EEC) No. 1565/79

Annual General Meeting

40

The Annual General Meeting shall be held at such place, date and hour as the Board or a General Meeting shall determine.

Special General Meetings

41

Special General Meetings may be held where and when the Board or a General Meeting may determine, and shall be held on the requisition in writing of not less than 100 registered producers and which shall state the proposed business.

Notice of General Meetings

42

Notice of the holding of every General Meeting specifying the place, date and hour of meeting and the business to be transacted shall, with the form of instrument appointing a proxy, be sent out by post to all registered producers at least 21 clear days before the date of the meeting. No business shall be transacted other than the business of which notice has been given as aforementioned. On the said notice, there shall appear with reasonable prominence a statement of the right conferred upon a registered producer by subsection (1) of section 43 to appoint a proxy.

Voting at General Meetings

43

• (1) Any registered producer shall be entitled to appoint a proxy to attend and vote instead of him. No person shall act as a proxy unless either he is entitled on his own behalf to be present and vote at the meeting, or he has been appointed to act as the proxy of a corporation or firm which is a registered producer.

• (2) Every question put to the vote at the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded—

• (a) by the Chairman, or

• (b) by at least 20 registered producers present in person or by proxy.

Quorum at General Meetings

44

Unless otherwise determined by a previous General Meeting, a quorum at General Meetings shall consist of 50 registered producers personally present.

Amendment of the Scheme

45

A copy of any proposed amendment of the Scheme shall be published by post to every registered producer. A poll on the question of whether or not an amendment shall be submitted to the Minister may, within 28 days of the publication thereof, be demanded in writing by not less than 500 registered producers.

Revocation of the Scheme

46

A poll on the question whether or not the Scheme is to be revoked may be demanded in writing by not less than 1,000 registered producers, but no poll shall, without the consent of the Board, be taken on that question within 2 years from the date of the declaration of the result of any previous poll on that question.

Winding-up of the Board

47

• (1) Part V of the Insolvency Act 1986[^f00015] (which relates to the winding-up of unregistered companies) shall apply in relation to the Board subject to the modifications set out in paragraph 4 of the Second Schedule to the Act[^f00016].

• (2) Contributions under paragraph 5 of the Second Schedule to the Act shall be assessed in relation to each contributor proportionately to the number of litres of milk produced and sold by him during the relevant period and shall not exceed 0.137p per litre, but declaring that the amount of the liability under this subsection of any registered producer, who during the whole of the relevant period was exempt from the provisions of the Scheme, shall not exceed 5 pence. Save as aforesaid, however, no person shall be liable to contribute to the assets of the Board in the winding-up by reason only of his being, or having been, a registered producer or a member of the Board.

• (3) Any surplus funds remaining on completion of the winding-up, after payment of all liabilities and expenses, shall be distributed among the registered producers who, if there had been a deficit on the winding-up, would have been liable to contribute in terms of subsection (2), and in the same proportions as such liability to contribute. Provided, however, that a registered producer who, during the whole of the relevant period, was exempt from the provisions of the Scheme shall not be entitled to any share of such surplus funds.

The common seal

48

• (1) The Use of the common seal. The common seal shall have the Board’s name engraven in legible characters thereon and shall not be affixed to any document without the express authorisation of the Board.

• (2) Custody of the common seal. The common seal shall be kept in the custody of the Secretary, or such other employee as the Board shall direct.

Deeds

49

• (1) All deeds and other writings to which the Board are a party shall be held to be validly executed on behalf of the Board by being sealed with the common seal of the Board and signed by two members of the Board and the Secretary, and such subscription on behalf of the Board shall be binding whether attested by witnesses or not.

• (2) All deeds and other writings executed in any place out of Great Britain or Northern Ireland shall be validly executed by being signed by such persons as may be duly authorised by the Board.

• (3) A document or proceedings requiring authentication by the Board may be signed by a member of the Board, Secretary or other person authorised by the Board, and need not be under the common seal of the Board.

Proof of posting

50

Any requirement of the Scheme (other than that contained in subsection (2) of section 34) that a notice or document shall be sent to a person by the Board shall be deemed to have been complied with if, within the period, if any, limited for the sending of the notice or document, the notice or document is despatched to him by post, properly addressed and with the postage prepaid.

Reprinting of Scheme

51

• (1) Where by an affirmative resolution of both Houses of Parliament any articles or words are resolved to be added to, or omitted from, the Scottish Milk Marketing Scheme 1989, or to be substituted for any other articles or words in that Scheme, then copies of that Scheme printed under the authority of Her Majesty’s Stationery Office, after such resolutions take effect, may be printed with the articles or words added, or omitted, or substituted for other articles or words as such resolutions require, and with the articles and paragraphs thereof numbered in accordance with such resolutions, and the Scheme shall be construed as if it had at the time when such resolutions take effect been made with such addition, omission or substitution.

• (2) A reference in any document to the Scottish Milk Marketing Scheme 1989, or to any provisions thereof, shall, unless the context otherwise requires, be construed as referring to that Scheme as amended.

SCHEDULE (1) — Members of Board

Name of Sub-Area	Extent of Sub-Area	Sitting Member
1. NORTH-EAST	Angus Dundee Perth & Kinross N.E. Fife Kirkcaldy Dunfermline Clackmannan Stirling	Mr. D. Yellowlees
2. CENTRAL & SOUTH-EAST	Falkirk Edinburgh East Lothian Mid Lothian West Lothian Berwickshire Clydebank Bearsden & Milngavie Strathkelvin Cumbernauld & Kilsyth Roxburgh Ettrick & Lauderdale Lauderdale Tweeddale	Mr. H. B. Christie
3. CLYDE & WEST	Argyll & Bute Dumbarton Glasgow Inverclyde Renfrew	Sir William J. Lithgow
4. LANARK	East Kilbride Hamilton Motherwell Monklands Clydesdale	Mr. J. A. Minto
5. NORTH AYR	Kilmarnock & Loudoun Cunninghame Eastwood	Mr. A. L. Howie
6. SOUTH AYR	Kyle & Carrick Cummnock & Doon Valley	Mr. W. Weir
7. GALLOWAY	Wigtown Stewartry	Mr. R. A. Lammie
8. DUMFRIES	Nithsdale Annandale & Eskdale	Mr. A. Gray

SCHEDULE (2)

Form of Voting Paper for Statutory Polls under section 36

SCHEDULE (3)

Form of Voting Paper for EEC Polls under section 37

SCHEDULE (4)

Form of Proxy

SCHEDULE 2 — REVOCATIONS

(1)	(2)	(3)
Title	Reference	Extent of Revocation
The Scottish Milk Marketing Scheme (Approval) Order 1933	S.R. & O. 1933/479	The whole Order
The Scottish Milk Marketing Scheme (Co-opted Members) Order 1934	S.R. & ;O. 1934/645	The whole Order
The Scottish Milk Marketing Scheme (Amendment) Order 1935	S.R. & O. 1935/691	The whole Order
The Scottish Milk Marketing Scheme (Amendment No 2) Order 1935	S.R. & O. 1935/1246	The whole Order
The Scottish Milk Marketing Scheme (Amendment) Order 1937	S.R. & O. 1937/624	The whole Order
The Scottish Milk Marketing Scheme (Amendment) Order 1950	S.I. 1950/2057	The whole Order
The Scottish Milk Marketing Scheme Amendments (Approval) Order 1956	S.I. 1956/650	The whole Order
The Scottish Milk Marketing Scheme (Amendments) Approval Order 1965	S.I. 1965/644	The whole Order
The Scottish Milk Marketing Scheme (Amendment) (No 2) Approval Order 1965	S.I. 1965/2193	The whole Order
The Scottish Milk Marketing Scheme (Amendment) Approval Order 1968	S.I. 1968/391	The whole Order
The Scottish Milk Marketing Scheme Amendment Regulations 1978	S.I. 1978/583	Regulation 3(1)
The Scottish Milk Marketing Scheme (Amendment) Regulations 1979	S.I. 1979/319	Regulation 2(1)
The Scottish Milk Marketing Scheme (Amendment) Regulations 1981	S.I. 1981/445	The whole Regulations
The Agricultural Marketing Act 1958 and Milk Marketing Schemes (Amendment) Regulations 1981	S.I. 1981/864	Schedule 2
The Scottish Milk Marketing Scheme (Amendment) Approval Order 1982	S.I. 1982/616	The whole Order
The Scottish Milk Marketing Scheme (Amendment) Regulations 1988	S.I. 1988/182	Regulation 2

Signed

Sanderson of Bowden — Minister of State, Scottish Office — 28th September 1989

Explanatory note

(This note is not part of the Order)

This Order, which comes into force on 25th October 1989, approves a consolidated milk marketing scheme to replace the Scottish Milk Marketing Scheme 1933, as amended. The consolidated scheme is set out in Schedule 1 to the Order. The various Orders and Regulations approving the 1933 Scheme and subsequent amendments thereto are revoked by Schedule 2 to this Order.

Footnotes

[^f00001]: S.R. & O.1933/479, amended by S.R. & O. 1934/645, 1935/691, 1246, 1937/624; S.I. 1950/2057, 1956/650, 1965/644, 2193, 1968/391, 1978/583, 1979/319, 1981/445, 864, 1982/616, 1988/182

[^f00002]: 1958 c. 47; section 52(1) contains a definition of “the Minister” relevant to the exercise of the statutory powers under which this Order is made; paragraph 5A of Schedule 1 was inserted by the Agriculture Act 1986 (c. 49), section 11.

[^f00003]: 1958 c. 47

[^f00004]: S.I. 1981/322

[^f00005]: Section 47 was amended by the Fair Trading Act 1973 (c. 41), Schedule 12, and by the Competition Act 1980 (c. 21), section 19(4)(a).

[^f00006]: 1985 c. 6

[^f00007]: 1914 c. 46, 1922 c. 54, 1934 c. 51, 1949 c. 34

[^f00008]: O.J. No. L171, 28.6.78, p. 14.

[^f00009]: 1985 c. 72

[^f00010]: O.J. No. L188, 26.7.79, p.29.

[^f00011]: 1947 c. 48

[^f00012]: 1961 c. 62

[^f00013]: Section 41A was inserted by S.I. 1981/864

[^f00014]: 1983 c. 2

[^f00015]: 1986 c. 45

[^f00016]: Paragraph 4 was amended by the Insolvency Act 1986, Schedule 14.