How the Orb Act wove a way into statute

It is a study in how something that started life as a defensive measure to protect an ailing industry became critical to the positive narrative which underscores the uniqueness of Harris Tweed. Something that merits its own Act of Parliament, the subliminal message goes, must be really special!

The Stornoway Gazette of July 24th 1993 carried a brief communiqué: “The Queen has given her Assent to the Act establishing the Harris Tweed Authority, which means Britain’s oldest surviving Certification Mark will now have a statutory body to promote and protect it.

“Dr C. A. Macleod, chairman of the Harris Tweed Association, said it was gratifying to have secured an Act of Parliament with a strengthened legal protection of the definition of Harris Tweed. The Harris Tweed Authority will own the Orb trade mark which is registered in 33 countries”.

Behind that statement lay a century of legal cases relating to a definition of the product and the insistence it could belong only to the Outer Hebrides of Scotland. Even the immediate story behind the 1993 headline took years of hard work, and no little vision, to develop.

Ian Angus Mackenzie, first chief executive of the new Harris Tweed Authority and now chair of Harris Tweed Hebrides, is uniquely placed to recall the story: “The Harris Tweed Act was the culmination of years of work by the Harris Tweed Association and their legal advisers. It owes much to Donald John Mackay, then chief executive of the HTA, and James Maclean of Burness, its lawyers in Edinburgh.

“They knew that the existing protection of the Orb mark was not sufficient to repel attacks from competitors and any weakening could ruin the Industry on the Island. The Association in the late 80s set out on an ambitious task to draw up a Harris Tweed Bill which would give greatly enhanced legal status to the trademark and establish a Harris Tweed Authority to own, protect, promote and administer the Orb mark.

“Comhairle nan Eilean Siar and HIE were also involved in the process and were integral to its eventual success. It is fair to say that there was not a lot of optimism at the start that the Act would be achieved, and there were many obstacles along the way which had to be overcome”.

It was no coincidence that the same issue of the Gazette which reported Royal Assent for the Act gave prominence to a major announcement of £10 million funding from HIE, the European Commission and the industry itself to back a five year transition to double-width looms. At that time, Harris Tweed was on its knees, the American market having collapsed and pressure for a double-width fabric irresistible.

Ian Angus recalled this week: “The Harris Tweed Bill was part of a three-pronged strategy to revitalise the Industry after the major down-turn in the late ‘80s. It ran alongside development and introduction of the double-width loom and a new marketing initiative, which never really got going. But the other two succeeded and secured the industry for the island’s future.

“Progress on the Harris Tweed Bill was very much driven by the Association, as it then was. Along the way, many of the problems which arose were overcome because someone in a position to help knew about the industry or had a fondness for the cloth”.

When the possibility of legislation was first raised, civil servants in the Department of Trade and Industry were sceptical about why an Authority was needed to administer the trade mark rather than leaving it to the mills. They were duly educated in Harris Tweed history and why brand protection must be enshrined for posterity, rather than entrusted to the vagaries of commercial interests.

The precedent of the Scotch Whisky Act of 1988 was used as a template though the Harris Tweed Bill which emerged went much further by creating an independent regulator to enforce its conditions – a statutory role that the Scotch Whisky Association never acquired and the big companies probably would not have wanted.

By the time the Bill was lodged, civil servants and government lawyers were fully on-side. The inclusion of Comhairle nan Eilean as co-sponsors was persuasive evidence of community support.

As Calum Macdonald, MP for the Western Isles at that time recalls: “The work was done behind the scenes. Private legislation is a curious Parliamentary process and if anyone objects at any stage, it can come back time and again for years.

“I remember speaking to John Redwood, who was Secretary of State for Trade and Industry. Because he was such a quirky fellow, I just wanted to be sure he was ok with it. The last thing anyone wanted was for it to be debated or drawn attention to”.

On that basis, the Bill ghosted its way through both Houses of Parliament – though it remains remarkable that no other interest, perhaps from Yorkshire or the Borders, questioned it.

That would not happen now – which is why it is so important that nobody tries to amend the Act in any way, as has occasionally been suggested with regard to how the fabric must be produced in order to qualify for the Orb mark. Neither has there been any wish for it be devolved to Holyrood which would limit the extent of its jurisdiction.

Ian Angus recalls: “Even in the final stages it could have failed to get through Parliament, if there had been any objections raised. When the Bill became the Harris Tweed Act it was a moment of great satisfaction and achievement. The Orb had a legal standing that made the job of protecting Harris Tweed much easier and the Authority had a status the Association could never have aspired to.

“The Authority became island-based and developed a much closer relationship with all sides of the industry, which continues to pay dividends today. Much thanks is owed to the vision of Dr Calum Macleod and his fellow Harris Tweed Association directors and the support they gave Donald John Mackay and Jim Maclean”.

In the late 1980s, Ian Angus had represented weavers on the Development Working Party which was charged with finding a solution to the key challenge – a double-width loom that conformed to the “handwoven” status of Harris Tweed. He recalls: “As a member of the DWP I was well informed about progress with the Bill but I was much more involved in development and later weaver training for the double-width loom.

“Latterly, I knew that I was to going to head up the new Authority if and when it was established. The following years were turbulent within the Industry but less so externally because of the protection of the Act. So much has happened for Harris Tweed over the last 30 years, much of it positive, and much of it because of the difficult tasks that were committed to and undertaken back in the late ‘80s”.

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THE DEBATE ABOUT how and where Harris Tweed could be made was much older than that. In 1963, it gave rise to the longest Court of Session case in Scottish legal history when “mainland producers” challenged the doctrine that every stage of the process must be carried out in the Outer Hebrides.

As recalled on this week’s Archives page, when James Shaw Grant gave evidence to that hearing, he spoke of the “bitterness” that existed since the same questions surfaced in 1934. That dispute carried on through the 1930s over the right to import mainland yarn to produce “unstamped” Harris Tweed.

This in turn led to one of Harris Tweed’s more unexpected places in legal history. When the Transport and General Workers Union called on Stornoway dockers to “black” imported yarn, its producers went to court and the case ended up in the House of Lords.

And so it came to pass that the fundamental principle of working people having the right to withhold their labour became enshrined in a ruling by the House of Lords, handed down in 1942 with war at its height and Harris Tweed at the centre of the case.

In the celebrated words of Lord Wright, one of five Law Lords to hear the case: “Where the rights of labour are concerned, the rights of the employer are conditioned by the rights of the men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining”.

The same ruling effectively licensed secondary action by trade unions, until Mrs Thatcher thought otherwise. The words of Lord Simon, the Lord Chancellor, are still quoted in defence of the principle that action based on a shared interest need not amount to a conspiracy if the motivation was good – as it certainly was in the Harris Tweed case.

As the decades passed, the same challenges kept arising in different forms. In the mid-1950s, it did not help when the President of the Board of Trade, Sir David Eccles, provoked Hebridean fury by likening Harris Tweed to “Bath buns … not all made in the place to which the name refers”. This renewed uncertainty led to a flurry of legal cases.

The 1963 case in the Court of Session was supposed to bring all these arguments to a conclusion, for ever and a day, when Lord Hunter found comprehensively in favour of the entire Harris Tweed process being carried out in the Outer Hebrides, in order to qualify for the Orb trade mark.

It probably did no harm that Lord Hunter was a keen fisherman, well acquainted with Lewis and Harris – and also, it is reasonable to assume, the importance of Harris Tweed to their economy.

The following year, Lord Cross delivered a similar and equally important ruling in the English courts so the Orb definition became watertight in both jurisdictions.

For the next 20 years, that seemed to put the matter to rest but then doubts started to arise. In her book, “The Islanders and the Orb”, Janet Hunter wrote: “In the opinion of Judge David Edward, who was a member of the HTA when the status of the trade mark in relation to European law came to be re-examined in the mid-1980s, that precedent (the Hunter judgement) was not sufficiently strong to provide permanent protection to the trade mark”. It became essential “that it should be placed beyond doubt that the HTA was master of the Orb trade mark with the words ‘Harris Tweed’ subjoined”.

And so the hard work which led to the Harris Tweed Act began and the Harris Tweed Authority was brought into existence. Over three decades, its work has evolved. The historic battle within the United Kingdom with producers who coveted the Harris Tweed brand has receded while the need for brand protection has greatly increased.

The vast majority of Harris Tweed used to go into men’s jackets – 90 per cent as late as 2008 when Harris Tweed Hebrides began. As its use in accessories and interiors grew rapidly, so too did the prominence – and value – of the label as it was increasingly displayed as part of the finished product, not all of them composed entirely of Harris Tweed.

Lorna Macaulay, chief executive of the HTA since 2008, says: “Not only did this create equity in the label but there was also a tightrope to be walked in determining how it could be used in order to avoid exploitation of the brand. We became brand managers”.

The HTA now has a longstanding relationship with an Edinburgh-based company called Snapdragon which uses its own technology to trawl the internet in search of potentially offending products. This has proved effective in keeping the counterfeiters at bay, though they will never go away entirely.

Though times and challenges change, the abiding truths remain – if Harris Tweed could be made anywhere else, it would be and where its name and reputation can be exploited, they will be. It is the Harris Tweed Act of 1993 which guarantees in perpetuity that the name will remain the exclusive property of the Outer Hebrides, along with the duty to protect it.