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Provisional Order to continue in being the Company of Merchants of the City of Edinburgh and to consolidate with amendments the Acts relating to the Company and to the widows' fund and endowments trust of the Company; to reconstitute and confer powers on the Master’s court of the Company and to vest in the Master’s court the Alexander Darling Silk Mercer’s fund and to make provision as to the management and administration thereof; to make provision for the dissolution of the widows' fund; to make provision as to the vesting in the said endowments trust of the Russell and Foster Endowment and to confer powers on the endowments trust; and for other purposes.
18-12-1996
WHEREAS—
(1) The Company of Merchants of the City of Edinburgh (hereinafter referred to as “the Company”) was incorporated by royal charter in 1681, ratified by an Act of the Parliament of Scotland in 1693 and further provision was made as to the regulation of the affairs of the Company by a royal charter granted in 1777:
(2) By the [1898 c.xxii.] Edinburgh Merchant Company Act 1898 (hereinafter referred to as “the Act of 1898”) the Company was reincorporated and the powers of the Company were amended and enlarged and further provision was made for the regulation, management and administration of its affairs and of the widows' fund established by the Company (hereinafter referred to as “the widows' fund”) and of certain charitable endowments administered by the Company:
(3) By the Edinburgh Merchant Company Endowments Orders 1909 and 1952 further provision was made as to the charitable endowments administered by the Company:
(4) By the [1947 c.ii.] Edinburgh Merchant Company Widows' Fund (Amendment) Order 1947 the provisions of the Act of 1898 relative to the said widows' fund were amended:
(5) By the [1960 c.xix.] Edinburgh Merchant Company Order Confirmation Act 1960 (hereinafter referred to as “the Act of 1960”) the Company was reincorporated as a body corporate under the same name and provisions of the Act of 1898; the said Orders of 1909, 1947 and 1952 were consolidated with certain amendments, modifications and additions; further provisions were made with respect to the constituting of the Master, treasurer and assistants of the Company as the Master’s court of the Company and as to the functions of the said Master’s court and with respect to the regulation, management and administration of the affairs of the Company and of the widows' fund and charitable endowments and provision was made whereby the benefits of the widows' fund were extended to new classes of beneficiaries including the orphans of contributors to the widows' fund:
(6) The Alexander Darling Silk Mercer’s Fund was vested by the Act of 1960 in the Master’s court of the Company and powers contained in the Act of 1960 were conferred on the said Master’s court:
(7) The Merchant Company Charities Board, as incorporated by the said Order of 1909, was reincorporated by the Act of 1960 as a corporate body under the name of “The Merchant Company Endowments Trust” (hereinafter referred to as “the endowments trust”):
(8) The property known as the Sir William Fraser Homes was by the Act of 1960 transferred to and vested in the endowments trust and is held and administered by the endowments trust as part of the endowments trust fund vested in the endowments trust:
(9) By his will and relative codicil the late Henry Walker Russell bequeathed property to be held and administered by the Merchant Company Charities Board as a separate fund to be known as “The Russell and Foster Endowment” for the purpose of paying annuities or pensions in accordance with the provisions of his said will:
(10) By the Act of 1960 “The Russell and Foster Endowment” was transferred to the endowments trust:
(11) It is expedient that the Company continue in being as a body corporate under the same name; that the provisions of the Act of 1960 be re-enacted with certain amendments, modifications and additions; that further provisions with respect to the categories of membership and the regulation, management and administration of the affairs of the Company should be enacted; that provision should be made to close the widows' fund and to dissolve the widows' fund:
(12) It is expedient to permit a variation of the terms of the Fraser Trust, the endowment trust and the Russell and Foster Endowment by means of a Petition to the Court of Session in Edinburgh:
(13) It is expedient that the other provisions of this Order shall be enacted:
(14) The purposes aforesaid cannot be effected without an Order confirmed by Parliament under the provisions of the [1936 c. 52.] Private Legislation Procedure (Scotland) Act 1936:
Now, therefore, in pursuance of the powers contained in the said Act of 1936, the Secretary of State orders as follows:—
1 This Order may be cited as the Edinburgh Merchant Company Order 1996.
2 In this Order, except where the context otherwise requires—
“Act of 1960” means the [1960 c.xix.] Edinburgh Merchant Company Order Confirmation Act 1960;
“actuary” means the person holding the appointment of actuary of the Company for the time being;
“annual meeting” means the stated general meeting of the Company to be held annually on the second Thursday of November or such other date as the Company may prescribe pursuant to section 22 (Stated general meetings of Company) of this Order;
“annual meeting of the contributors” means the stated general meeting of the contributors to be held annually on the first Tuesday of October or such other date as the contributors may prescribe pursuant to section 43 (Stated general meetings of contributors) of this Order;
“assistant” means a person elected as an assistant pursuant to section 10 (Election of Master, treasurer and assistants) of this Order and for the time being holding the office of assistant and “senior assistant” means the assistant whose name stands highest in the list of assistants;
“commencement of this Order” means the date of the passing of the Act confirming this Order;
“Company” means the Company of Merchants of the City of Edinburgh;
“contributors” means the contributors to the widows' fund;
“Darling fund” means the fund constituted by the Darling trust disposition and settlement;
“Darling trust disposition and settlement” means the trust disposition and settlement of Alexander Darling LL.D. dated 31st August 1934, together with codicils dated 3rd June and 9th September 1936;
“Darling trustees” means the trustees for the time being of the Darling trust disposition and settlement;
“education board” means the Merchant Company Education Board constituted by the Edinburgh Merchant Company Educational Endowments Scheme 1960;
“endowments trust” means the Merchant Company Endowments Trust;
“endowments trust fund” means the fund vested in the endowments trust;
“existing” means existing immediately before the commencement of this Order;
“existing charters” means the royal charter of 1681 incorporating the Company and ratified by an Act of the Parliament of Scotland in 1693 and the royal charter of 1777;
“general fund” means the accumulated funds of the Company for the time being;
“joint committee” means the Merchant Company Joint Committee;
“Master’s court” means the Master’s court constituted by this Order;
“Master” means the Master of the Company for the time being;
“members” means the members of the Company for the time being and includes honorary members;
“old Master” means the person who last retired from the office of Master;
“registered auditor” means any person authorised by Part II of the [1989 c. 40.] Companies Act 1989 (which deals with the eligibility of persons for appointment as company auditors) to act as a company auditor;
“repealed Acts” means the Acts repealed by this Order;
“rules” means rules made by the Company or the contributors pursuant to the provisions of this Order;
“secretary” means the secretary of the Company for the time being;
“treasurer” means the treasurer of the Company for the time being;
“trustees” means the trustees of the widows' fund for the time being and “senior elected trustee” means the trustee whose name stands highest in the list of trustees elected in pursuance of section 53 (Constitution of trustees of widows' fund) of this Order;
“widow” includes widower;
“widows' fund” means the fund referred to in section 41 (Maintenance of widows' fund) of this Order.
3 (1) The existing charters, as amended by the provisions of this Order, are hereby ratified and confirmed.
(2) The following Acts are hereby repealed:—
(a) the [1960 c.xix.] Edinburgh Merchant Company Order Confirmation Act 1960; and
(b) the [1976 c.x.] Edinburgh Merchant Company Order Confirmation Act 1976.
4 The members shall continue in being under the name of “The Company of Merchants of the City of Edinburgh”, as a body corporate with perpetual succession and a common seal; and with power to purchase, acquire, hold, sell, lease and dispose of lands and other property heritable, moveable, real and personal, and to sue and be sued, and with all other rights, powers and privileges of a body corporate.
5 (1) Subject to the provisions of this Order, the persons eligible for election as members are the following:—
(a) merchants, bankers or traders who carry on or who have carried on business on their own account;
(b) persons who, as principals or agents, individually or in partnership with others, carry on or have carried on business on their own account in any department or description of commerce, trade, manufacture or handicraft, or as architects, engineers or surveyors;
(c) managing directors, managers and principal officers of banks (including managers of branch banks), insurance or other companies having their head office in the United Kingdom;
(d) such additional classes of persons as the Company may from time to time approve:
Provided that a person shall not be elected as a member of the Company (other than an honorary member) unless he is a guild brother of the City of Edinburgh and either—
(i) carries on or has carried on business on his own account or exercises or has exercised his office, within the City of Edinburgh or within 20 miles from Her Majesty’s General Register House, Edinburgh or such other distance therefrom as the Company may from time to time determine; or
(ii) resides at the time of his election within the said city or within the said distance or such other distance as the Company may from time to time determine.
(2) Notice of a proposal to include any additional class of persons who shall be eligible for election as members of the Company shall be given at one of the stated general meetings of the Company and such class of persons shall not be eligible unless the proposal has been sanctioned by a resolution passed by two-thirds of the members present and voting at the immediately following stated general meeting of the Company or at any adjournment thereof.
6 Every person desiring to be elected as a member shall lodge with the secretary an application in such form and with such information as may from time to time be required by the Company.
7 With respect to applications for election as members—
(1) Every application shall, in the first instance, be considered by the Master’s court, who shall make a report as to the qualification and suitability of the applicant;
(2) The application along with such report shall thereafter be circulated to every member;
(3) Any member who wishes to object to an application must do so in writing to the secretary within 21 days of the date on which the said application is circulated;
(4) The application shall be remitted, within 42 days of the date on which the said application is circulated, to the Master’s court;
(5) After considering any objections lodged as aforesaid, the Master’s court may elect the applicant by a ballot in which at least 8 of their number vote for his election;
(6) If the application is refused by the Master’s court, the applicant within 14 days of being notified of such refusal, may notify the secretary in writing that he wishes to appeal; and
(7) If the applicant does appeal as aforesaid, the application shall be submitted to a general meeting of the Company where the Company may elect the applicant by a ballot in which at least two-thirds of the members present and voting vote for his election.
8 The date of election of a member shall be the date of his election by the Master’s court or, in case of his election on appeal as provided for by the immediately preceding section of this Order, the date of his election by the Company.
9 The Company may elect as honorary members of the Company such persons, wheresoever resident or of whatsoever designation or calling, as may from their public eminence or public or private merits be deemed worthy to be elected.
10 (1) Subject to the provisions of this Order, the Company shall at every annual meeting elect the Master, the treasurer and 12 assistants.
(2) The Master and the treasurer shall be elected from amongst the members who at the time of election are, or who have been, assistants.
(3) The 12 assistants shall be elected from the members.
(4) The Master, the treasurer and the 12 assistants existing in office shall continue in their respective offices until the first annual meeting to be held after the commencement of this Order and shall, subject to the provisions of this Order, be eligible for election pursuant to the provisions of this Order.
11 (1) The Master and the treasurer or either of them may be re-elected by the Company at the annual meeting in any year.
(2) The assistants may be re-elected by the Company at any annual meeting:
Provided that four assistants shall not be eligible for re-election as assistants, such four assistants to be determined by the Company in accordance with the rules.
12 (1) In the event of any vacancy occurring at any time among the Master, treasurer and assistants, the Company shall fill such vacancy within four months of its occurrence either at a stated general meeting of the Company or at a special general meeting of the Company to be called for that purpose.
(2) In the case of a vacancy occurring among the assistants, the person elected to fill such vacancy shall be placed at the bottom of the list of assistants.
13 (1) The Company may appoint and employ all such officials (including a secretary) as the Company may deem necessary for the carrying on of its business:
Provided that—
(a) all existing officials of the Company shall, until the first annual meeting of the Company to be held after the commencement of this Order, hold their respective offices on their respective existing terms and conditions; and
(b) no person shall be qualified to be appointed as actuary unless he is either a Fellow of the Faculty of Actuaries in Scotland or a Fellow of the Institute of Actuaries.
(2) The secretary shall be elected annually at the annual meeting.
14 The Company may grant to its officials such pensions and life assurance cover as it may deem appropriate, and may join with any institution connected with the Company, for the purpose of contributing to a superannuation fund for such officials, or make payment to an insurance company for a like purpose.
15 Subject to the provisions of this Order, every person shall on his election pay to the Company such sum of entry money and age tax, if any, as may for the time being be fixed by the Company.
16 Subject to the provisions of this Order, the election of any person as a member shall be conditional on his paying to the Company the entry money and other sums due from him under this Order and the rules, and a person who has been elected as a member shall not be deemed to be a member or be entitled to any rights or privileges in virtue of his election until such entry money and other sums due have been paid and if these are not so paid within 12 months of the date of his election, his election and all that has followed thereon shall be null and void.
17 The Company may after investigation into the state of the general fund increase or reduce the amount of the entry money and age tax or either of them payable by persons on election as members, provided that such increase or reduction is sanctioned by a resolution passed by a majority of the members present and voting at a stated general meeting of the Company.
18 The Company may impose an annual subscription or special levy on members, provided that such imposition and the amount thereof and any variations to them are sanctioned by a resolution passed by a majority of the members present and voting at a stated general meeting of the Company.
19 The general fund shall be held by the Company and managed, administered and applied by the Master’s court in the following manner:—
(1) for payment of the expenses of management of the Company (including payments authorised under section 14 (Company may provide pensions, etc., for officials) of this Order);
(2) for payment of allowances or annuities to indigent members;
(3) for the good and utility of the Company;
(4) for any other purpose to which the general fund may be lawfully applied in terms of the existing charters and this Order and the customs and usages of the Company; and
(5) for payment of any sums of money to be transferred to the widows' fund pursuant to section 21 (Power to contribute to widows' fund from general fund) of this Order.
20 The title to the area of ground on which are erected the buildings including the hall and offices of the Company known as 20 and 22 Hanover Street, Edinburgh together with the officer’s house at 18 Hanover Street, Edinburgh shall continue to be vested in and held by the Company, subject to the interests in the said property of the institutions connected with the Company, and the Company may at any time, by the Master’s court, sell, burden or let or otherwise dispose of the said property or any part thereof in such manner and at such times as the Company may think fit and direct.
21 The Company may, from time to time after an investigation into the state of the general fund and having regard to the state of the widows' fund, transfer from the general fund to the widows' fund such sums of money as the Company may fix to be applied for any of the following purposes:—
(1) in meeting any deficiency reported as a result of a periodical actuarial investigation into the state of the widows' fund;
(2) in providing for an increase of the annuities payable to the beneficiaries of the widows' fund; or
(3) generally in aiding or benefiting the widows' fund:
Provided that—
(a) any such transfer shall be sanctioned by a resolution passed by a majority of the members present and voting at a special general meeting of the Company called for that purpose; and
(b) there shall remain in the general fund after any such transfer such funds as shall, in the opinion of the actuary and of the Company, be sufficient to meet the claims against the Company then existing or that may arise, including the ordinary expenses of the Company.
22 (1) The Company shall hold stated general meetings each year on—
(a) the first Thursday of October; and
(b) the second Thursday of November;
or such other dates as the Company may prescribe.
(2) The Company may hold additional general meetings on such dates as the Company may prescribe.
23 (1) The Master or in his absence the treasurer may convene a special general meeting of the Company at any time when he deems it necessary.
(2) If a requisition for a special general meeting of the Company signed by not less than 9 of the members is addressed to the Master he shall upon receiving such requisition convene a special general meeting which shall be held within two weeks of such requisition being received:
Provided that in the absence of the Master the treasurer shall act, or in his absence any of the assistants shall act, in his place for the purposes of this subsection.
24 (1) All meetings of the Company shall be called by notice issued by the secretary and posted at least 7 days before the date of the meeting.
(2) The Company may adjourn any meeting as it sees fit.
25 The Master, or in his absence the treasurer, or in his absence the senior assistant present, shall preside as chairman at all meetings of the Company:
Provided that in the absence of the Master, the treasurer and all the assistants a chairman shall be chosen for the meeting from among the members present.
26 At all meetings of the Company not less than 30 of the members shall constitute a quorum.
27 (1) When a vote is required to be taken at any meeting of the Company such vote shall, unless otherwise provided in this Order or by any rules, be taken by a show of hands.
(2) In the event of any such vote being challenged by two or more members present the members present shall thereupon appoint tellers who shall ascertain the vote.
(3) The chairman of the meeting shall, in all cases of equality of votes, have a casting vote in addition to any other vote he may have.
28 The Company may at any general meeting make rules for the purpose of regulating the procedure to be followed in the nomination and election of the Master, treasurer and assistants:
Provided that such rules are not inconsistent with the provisions of this Order and that the nomination of the persons to be proposed for election to the office of Master, treasurer or assistants shall (subject to the provisions of section 10 (Election of Master, treasurer and assistants) of this Order) take place annually at the stated general meeting of the Company to be held on the first Thursday of October or such other date as the Company may prescribe in every year.
29 The Company may at any general meeting make such rules for the regulation of the affairs of the Company as it deems expedient and in particular the Company may make rules and prescribe terms and conditions on which any annual subscription or special levy imposed in pursuance of the provisions of this Order, shall be payable, and may impose penalties (including forfeiture of all interest and benefit in the Company and provision for possible reinstatement following such forfeiture) on members who allow the payment of such subscription or levy to fall into arrear for more than three years:
Provided that such rules, terms, conditions and penalties shall not be inconsistent with the provisions of this Order.
30 The Master, the treasurer and the assistants shall be and are hereby reconstituted as “The Master’s Court of the Company of Merchants of the City of Edinburgh” for the purpose of exercising the powers conferred and carrying out the duties imposed on the Master’s court by this Order, and performing the functions prescribed by this Order with respect to the Master’s court, and under the said name may exercise the said powers and shall carry out the said duties and perform the said functions accordingly and the provisions of this Order relating to the Master’s court shall apply to the Master’s court as constituted by this section.
31 (1) Meetings of the Master’s court shall be held as the Master’s court may direct or, in the absence of any direction, as the Master or, in his absence, the treasurer may direct and all such meetings shall be called by notice issued by the secretary and posted at least 7 days before the date of meeting.
(2) The Master’s court may adjourn any meeting as it may see fit.
32 (1) The Master, or in his absence the treasurer, or in his absence the senior assistant present, shall preside as chairman at all meetings of the Master’s court.
(2) The chairman of every meeting shall, in all cases of equality of votes, have a casting vote in addition to any other vote he may have.
33 At all meetings of the Master’s court not less than five members thereof shall constitute a quorum in all matters with the exception of the ballot for the admission of members in which case not less than 8 members of the Master’s court shall form a quorum.
34 The Master’s court may appoint committees of their number and convenors of such committees and may confer on such committees all such powers and give them such instructions as may appear to the Master’s court expedient and shall fix the quorum of each such committee.
35 Proceedings of the Master’s court or of any committee thereof shall not be invalidated or be illegal in consequence of there being any vacancy in the membership of the Master’s court at the time of such proceedings, or in respect of any informality in the election of any member thereof.
36 (1) The Master’s court shall manage and administer the general fund which shall be invested by and in the name of the Master’s court and applied by them in the manner provided in this Order.
(2) The Master’s court shall also bring before the Company such business as it considers proper, and dispose of or make reports and recommendations as to all business referred to it by the Company, and perform such acts and duties as the existing charters, this Order and the customs and usages of the Company may authorise or as the Company may prescribe.
37 (1) The Master’s court shall keep accounts of the general fund showing the income and expenditure and assets and liabilities thereof, to be made up each year to 1st September.
(2) The said accounts shall be audited by a registered auditor on behalf of the Company and approved by the Company at a general meeting.
(3) A copy of the abstract of the accounts of the Company shall be sent each year to each member resident in Great Britain.
38 The secretary and the other officials of the Company shall, after the commencement of this Order, also hold office in their several capacities as secretary and officials of the Master’s court.
39 The Darling fund shall continue to be vested in the Master’s court, and shall be held, managed and administered by the Master’s court as trustees, in accordance with the provisions of this Part of this Order.
40 (1) The full income of the Darling fund shall after meeting the expenses of management, be applied by the Master’s court in the provision of pensions to be known as “Alexander Darling Silk Mercer’s Fund Pensions”, of not less than £15 per annum to women qualified as hereinafter provided in this section, who are in the opinion of the Master’s court in need.
(2) The women qualified to receive such pensions shall be women of 55 years of age and over, of good character, preferably unmarried or widowed and being—
(a)(i) gentlewomen born in the City of Edinburgh; or
(ii) gentlewomen who for the greater part of their lives have been resident in the City of Edinburgh; or
(iii) gentlewomen who are the widows of men born in the City of Edinburgh; or
(iv) gentlewomen who are the widows of men who for the greater part of their lives were resident in the City of Edinburgh:
Provided that the Master’s court shall be the sole judges of who are to be deemed gentlewomen for the purposes of this subsection; and
(b) women who have been employed at any time within the City of Edinburgh in the manufacture or sale of any textile garments for ladies and children or such articles of apparel including, without prejudice to the foregoing generalities, millinery, furs, laces and silks as are usually dealt in by a ladies' silk mercer:
Provided that women who have been wholly concerned in the manufacture or sale of garments for men’s wear shall not be so qualified.
(3) In so far as is possible, the number of pensions available shall be apportioned one-half to gentlewomen qualified as mentioned in paragraph (a) of subsection (2) of this section and one-half to women qualified as mentioned in paragraph (b) of subsection (2) of this section.
(4) In the allocation of pensions under this section preference shall be given to women bearing the surname Darling or Millar or Scott or Small and to women born in the town of Lanark:
Provided that all those so named or so born are to be given equal preference and that the order of narrating the qualifications for preference is not in any way indicative of any preference inter se.
(5) The Master’s court shall not pay a pension out of the Darling fund to any woman so qualified who is eligible for any national old age pension or allowance if such payment would cause the reduction of such national old age pension or allowance by an amount equal to or more than the amount of the pension payable out of the Darling fund and accordingly in any such case the amount of the pension payable out of the Darling fund shall from time to time be modified so that there shall be no such reduction of such national old age pension or allowance.
41 The Company shall, subject to the provisions of this Order, continue and maintain the widows' fund.
42 From the commencement of this Order no person shall be admitted as a contributor to the widows' fund.
43 (1) The contributors shall hold a stated general meeting each year on the first Thursday of October or such other date as the contributors may prescribe.
(2) The contributors shall also hold a general meeting immediately after any general meeting (other than a special general meeting) of the Company.
44 (1) The Master or in his absence the Treasurer may convene a special general meeting of the contributors at any time when he deems it necessary.
(2) If a requisition for a special general meeting of the contributors, signed by not less than 9 contributors is addressed to the Master he shall upon receiving such requisition convene a special general meeting which shall be held within two weeks of such requisition being received:
Provided that in the absence of the Master the treasurer shall act, or in his absence any of the assistants shall act, in his place for the purposes of this subsection.
45 (1) All meetings of the contributors shall be called by notice issued by the secretary and posted at least 7 days before the date of meeting.
(2) The contributors may adjourn any meeting as they see fit.
46 The Master, or in his absence the treasurer, or in his absence the old Master, or in his absence the senior elected trustee present, shall preside as chairman at all meetings of the contributors:
Provided that in the absence of the Master, the treasurer, the old Master and all the elected trustees a chairman shall be chosen from among the contributors present.
47 At all meetings of the contributors 25 contributors entitled to vote shall constitute a quorum provided that the quorum shall be reduced to not less than one-tenth of the contributors entitled to vote in the event of there being fewer than 240 contributors.
48 (1) When a vote is required to be taken at any meeting of the contributors, such vote shall, unless otherwise provided in this Order, be taken by a show of hands.
(2) In the event of any such vote being challenged by two or more contributors present, the contributors present at the meeting shall appoint tellers who shall ascertain the vote.
(3) A contributor whose contributions, or any part thereof, are at the date of the meeting in arrear shall not be entitled to vote.
(4) The chairman of the meeting shall, in all cases of equality of votes, have a casting vote in addition to any other vote he may have.
Edinburgh Merchant Company Order Confirmation