The Royal Conservatoire of Scotland Order of Council 2014

Made: 14th October 2014

Laid before the Scottish Parliament: 16th October 2014

Coming into force: 1st December 2014

At the Council Chamber, Whitehall, the 14th day of October 2014By the Lords of Her Majesty’s Most Honourable Privy Council

Their Lordships make the following Order in exercise of the powers conferred by sections 45 and 60(3) of the Further and Higher Education (Scotland) Act 1992[^f00001] and all other powers enabling them to do so.

PART 1 — CITATION, COMMENCEMENT AND INTERPRETATION

Citation and commencement

1

This Order may be cited as the Royal Conservatoire of Scotland Order of Council 2014 and comes into force on 1st December 2014.

Interpretation

2

In this Order—

• “the 2006 Act” means the Companies Act 2006[^f00002];

• “the 2016 Act” means the Higher Education Governance (Scotland) Act 2016,

• “the 1995 Order” means the Royal Scottish Academy of Music and Drama (Scotland) Order of Council 1995[^f00003];

• “Academic Board” means the body of persons appointed in accordance with article 19;

• “the Articles” means the articles of association of the Company;

• “the Board” means the Board of Governors for the time being of the Company or the Governors present at a duly convened meeting of the Governors at which a quorum is present, and includes any validly constituted committee of the Governors;

• “the Chair” means the person referred to in article 3(a),

• “the Company” means Royal Conservatoire of Scotland, a company limited by guarantee (registered in Scotland with company number SC 004703);

• “Conflict” means a situation where a Governor has, or could have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company;

• ...

• “Governor” means a member of the Board referred to in article 3,

• “the Institution” means the Company, being an institution designated under section 44 of the Further and Higher Education (Scotland) Act 1992;

• “the nominated Vice-Chair” means the Vice-Chair nominated under article 5(4);

• ...

• “Principal” means the principal, or any person authorised, whether for the purposes of this Order or otherwise, for the time being to act as principal, of the Institution;

• “the Secretary” means the secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary; and

• “student” means a matriculated student of the Institution and includes all persons holding sabbatical office in a students’ association of the Institution (whether or not they remain as students of the Institution during their period of office),

• ...

PART 2 — BOARD OF GOVERNORS

Membership of the Board of Governors

3

The membership of the Board is to be composed of—

• (a) the Chair, being the person appointed by the Board to the position of senior lay member by virtue of section 8(1) (appointment and tenure) of the 2016 Act,

• (b) the Principal,

• (c) one Governor having the role of Assistant Principal or any other executive office as the Board considers to be of at least equivalent standing, however named, appointed by being nominated by the Principal,

• (d) two Governors appointed by being elected by the staff of the Institution from among their own number,

• (e) one Governor appointed by being nominated by a trade union from among the academic staff of the Institution who are members of a branch of a trade union that has a connection with the Institution, in accordance with section 10(2) (composition of governing body) of the 2016 Act,

• (f) one Governor appointed by being nominated by a trade union from among the support staff of the Institution who are members of a branch of a trade union that has a connection with the Institution, in accordance with section 10(2) of the 2016 Act,

• (g) two Governors appointed by being nominated by the students’ association of the Institution from among the students of the Institution,

• (h) one Governor appointed by being nominated by the Academic Board from among its members, and

• (i) 11 to 19 Governors appointed by the Board from time to time, in accordance with its rules and procedures, from among persons appearing to the Board to have experience in, and to have shown capacity in, industrial, commercial, employment or government matters, the performing arts or any other profession and who may not be members of staff or students of the Institution.

Election of certain Governors

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• (1) The Chair is to be appointed in accordance with sections 3 to 8 (senior lay member of governing body) of the 2016 Act and an appointment process prescribed by the Board.

• (2) Subject to article 6 (period of office of governors), the Board is to prescribe the duties, responsibilities and terms and conditions of the Chair, which may include such remuneration and allowances as the Board considers to be reasonable in accordance with section 9 (remuneration and conditions) of the 2016 Act.

Appointment of Chair and Vice-Chair

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• (1) The Board is to appoint ... such number of Vice-Chair as the Board may require from time to time, from among the Governors appointed under article 3(i).

• (2) The following provisions apply to any ... Vice-Chair appointed under paragraph (1)—

• (a) that person holds office for such period as may be determined by the Board;

• (b) the period of that person’s office does not extend beyond that person’s period of office as Governor;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) that person may be removed from office by resolution of the Board; and

• (e) that person ceases to hold office if that Governor has resigned or been removed from office as a Governor under article 8.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) In the absence of the Chair, a Vice-Chair appointed under paragraph (1) and nominated by the Chair by prior written notice to the Board presides at meetings of the Board.

• (5) In the absence of both the Chair and the nominated Vice-Chair, the Board may nominate another Vice-Chair (if more than one Vice Chair has been appointed under paragraph (1)) to preside, whom failing they must appoint one of their own number who has been appointed under article 3(i) to preside at any meeting.

Period of office of Governors

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• (1) The Governor ex officio specified in article 3(b) holds office as Governor for the duration of tenure of the office by virtue of which that person is such a Governor.

• (2) Any Governor appointed to the Board under article 3(a) or (d) to (i) may be further appointed to the Board on expiry of that person’s term of office, if still eligible in accordance with this Order and provided that person’s appointment is not precluded by paragraph (3).

• (2A) The Governor appointed under article 3(c) may be further appointed to the Board on expiry of that person’s term of office, if still eligible in accordance with this Order.

• (3) A person may not be appointed to the Board where that person’s term of office, if aggregated with any previous terms of office, would cause that person to serve for more than 12 years as a Governor.

• (4) For the purposes of paragraph (3), a term of office includes any term of office as a Governor, whether served before or after the coming into force of this Order and whether taken by appointment under article 3(a) or (c) to (i), or otherwise, but not any term of office served ex officiounder article 3(b).

• (5) Subject to paragraphs (6) and (7), the Board is to make rules for the duration of the terms of office of Governors appointed under article 3(1)(a) or (c) to (i), which rules may be revoked and replaced, or varied, by further rules made by the Board.

• (6) No Governor may be appointed for a term of office of more than 4 years.

• (7) No variation or revocation of rules for the duration of the terms of office of Governors has effect so as to vary or terminate the period of office of any person who is a Governor at the time when that variation or revocation takes effect.

Ineligibility of staff to be Governors

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Vacation of office of Governor

8

The Board may make rules about the procedure for the resignation and removal of a Governor in accordance with section 13 (resignation or removal from body) of the 2016 Act.

Filling of vacancies

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of the Board

10

• (1) Subject to the provisions of the 2006 Act and the Articles and to any directions given by special resolution of the Company, the business of the Company is managed by the Board who may exercise all the powers of the Company.

• (2) No alteration of the Articles and no such direction invalidates any prior act of the Board which would have been valid if that alteration had not been made or that direction had not been given.

• (3) The powers given by this article are not limited by any special power given to the Board by this Order or by the Articles.

• (4) The Board may, by power of attorney or otherwise, appoint any person to be the agent of the Company for such purposes and on such conditions as they determine, including authority for the agent to delegate all or any of its powers.

Delegation of Board’s powers

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• (1) The Board may delegate any powers to any committee consisting of one or more Governors.

• (2) Without prejudice to articles 18 and 19(3), the Board may also delegate to the Principal or any Governor holding any other executive office such powers as it considers desirable to be exercised by that person.

• (3) Any delegation may be made subject to any conditions the Board may impose, and either collaterally with or to the exclusion of their own powers and may be revoked or altered.

• (4) Subject to any conditions imposed under paragraph (3), the proceedings of a committee with two or more members are governed by the Articles regulating the proceedings of the Board so far as they are capable of applying.

Reserved areas of business

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Validity of proceedings of the Board

13

No failure or defect in the appointment of any Governor and no vacancy in the office of Governor prevents the Board from acting in the execution of its functions, nor is any act or proceeding of the Board or of any committee appointed by the Board invalidated or illegal by reason of or in consequence of any such vacancy or of any such defect in the appointment of any one or more Governors.

Allowances to members of the Board

14

The Board may pay to any Governor appointed under article 3(b) to (i) such financial loss allowances and travelling and subsistence allowances as it thinks appropriate.

Staff

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• (1) Without prejudice to the general powers in article 10, the Board has power to employ staff on such terms and conditions as the Board may determine.

• (2) The Board has power to pay such sum or sums by way of pension, allowance or gratuity as it thinks fit to—

• (a) any member of the staff of the Institution, on retirement through age or permanent incapacity, from the employment of the Institution; or

• (b) the surviving spouse or any dependant of any member of the staff of the Institution in the event of the death of the staff member in the employment of the Institution,

in respect of any period of such staff member’s service in the employment of the Institution.

• (3) In paragraph (2), the reference to the permanent incapacity of a member of the staff of the Institution is a reference to a disability of mind or body of such a nature or to such an extent as, in the opinion of the Board, renders that staff member permanently incapable of continuing to serve efficiently in the Institution’s employment.

Governors’ interests

16

• (1) The Board may, in accordance with the requirements set out in this article, authorise any matter proposed to it by any Governor which would, if not authorised, involve a Governor breaching that Governor’s duty under article 17(12) to avoid a Conflict.

• (2) Any authorisation under paragraph (1) will be effective only if—

• (a) the matter in question has been proposed by any Governor for consideration at a meeting of the Board in the same way that any other matter may be proposed to the Board under the provisions of this Order or in such other manner as the Board may determine;

• (b) any requirement as to the quorum at the meeting of the Board at which the matter is considered is met without counting the Governor in question; and

• (c) the matter was agreed to without the Governor in question voting or would have been agreed to if that Governor’s vote had not been counted.

• (3) Any authorisation of a Conflict under paragraph (1) may (whether at the time of giving the authorisation or subsequently)—

• (a) extend to any actual or potential Conflict which may reasonably be expected to arise out of the Conflict so authorised;

• (b) be subject to such terms and for such duration, or impose such limits or conditions as the Board may determine; and

• (c) be terminated or varied by the Board at any time.

• (4) An authorisation under paragraph (3) will not affect anything done by the Governor in question prior to such termination or variation in accordance with the terms of the authorisation.

• (5) In authorising a Conflict the Board may decide (whether at the time of giving the authorisation or subsequently) that if a Governor has obtained any information through involvement in the Conflict otherwise than as a Governor of the Company and in respect of which that Governor owes a duty of confidentiality to another person that Governor is under no obligation to—

• (a) disclose such information to the Board or to any Governor or other officer or employee of the Company; or

• (b) use or apply any such information in performing duties as a Governor,

where to do so would amount to a breach of that confidence.

• (6) Where the Board authorises a Conflict it may provide, without limitation (whether at the time of giving the authorisation or subsequently), that the Governor in question—

• (a) is to be excluded from discussions (whether at meetings of the Board or otherwise) related to the Conflict;

• (b) is not to be given any documents or other information relating to the Conflict; and

• (c) may or may not vote (or may or may not be counted in the quorum) at any future meeting of the Board in relation to any resolution relating to the Conflict.

• (7) Where the Board authorises a Conflict—

• (a) the Governor in question will be obliged to act in accordance with any terms imposed by the Board in relation to the Conflict; and

• (b) the Governor in question will not infringe any duty owed to the Company by virtue of sections 171 to 177 of the 2006 Act provided the Governor acts in accordance with such terms, limits and conditions, if any, as the Board imposes in respect of that authorisation.

• (8) A Governor is not required, by reason of being a Governor (or because of the fiduciary relationship established by reason of being a Governor), to account to the Company for any remuneration, profit or other benefit which that Governor derives from or in connection with a relationship involving a Conflict which has been authorised by the Board or by the Company in general meeting (subject in each case to any terms, limits or conditions attaching to that authorisation) and no contract is liable to be avoided on such grounds.

PART 3 — PROCEEDINGS OF THE BOARD

Proceedings of the Board

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• (1) Subject to the provisions of the Articles and this Order, the Board may regulate proceedings as it thinks fit.

• (2) A Governor may, and the Secretary at the request of a Governor must, call a meeting of the Board.

• (3) It is not necessary to give notice of a meeting to a Governor who is absent from the United Kingdom.

• (4) Questions arising at a meeting will be decided by a majority of votes.

• (5) In the case of an equality of votes, the Chair (or as the case may be, such person as has been nominated pursuant to article 5(4) or (5)) has a second or casting vote.

• (6) The Governors may conduct proceedings by telephone and any reference to a meeting of the Board in the Articles and this Order includes any such proceedings conducted by telephone.

• (7) Any proceedings must be minuted in accordance with the Articles.

• (8) The quorum for the transaction of the business of the Board may be fixed by the Board and, unless so fixed at any other number, is four.

• (9) The continuing Governors or a sole continuing Governor may act notwithstanding any vacancies in their number, but, if the number of Governors is less than the number fixed as the quorum, the continuing Governors or Governor may act only for the purpose of filling vacancies or of calling a general meeting.

• (10) As regards third parties dealing with the Company in good faith, all acts done by a meeting of the Board, or by a committee of the Board, or by a person acting as a Governor are, notwithstanding that it be afterwards discovered that there was a defect in the appointment of any Governor or that any of them were disqualified from holding office, or had vacated office, or were not entitled to vote, as valid as if every such person had been duly appointed and was qualified and had continued to be a Governor and had been entitled to vote.

• (11) A resolution in writing signed by all the Governors entitled to receive notice of a meeting of the Board or of a committee of the Board is as valid and effectual as if it had been passed at a meeting of the Board or (as the case may be) a committee of the Board duly convened and held and may consist of several documents in the like form each signed by one or more Governors.