Why Lord Hunter's ruling on Harris Tweed remains iconic

Indeed, there could be no better guide to the status of the judgment, as seen at that time, than the decision of the Stornoway Gazette to publish every word of it over a period of weeks, packed into pages of tiny print which must have tested the eyesight of even the most assiduous weaver or student of law.

Then, and for subsequent decades, it seemed to resolve the question which had haunted the industry since its inception – whether a fabric with characteristics of Harris Tweed which was not wholly produced in the Outer Hebrides could share its name and reputation. Lord Hunter decided, without ambiguity, that it could not.

He found that a declarator sought by mainland interests who were behind the action was “like their operations, a mere device designed to enable them, by attaching the name of Harris Tweed to their product, to use the reputation attaching to the genuine article”.

The action had been raised by three mainland companies who formed the Independent Harris Tweed Producers Ltd – Argyllshire Weavers, A&J Macnaughton and Macdonald’s Tweeds of Oban, who also had an operation in South Uist. On the other side were 14 “Orb producers” in Lewis and the Harris Tweed Association which represented the industry.

Not only mainland producers were adversely affected by Lord Hunter’s judgment. The cloth produced by Macdonald’s Tweeds under factory conditions in Uist fell even further short of the criteria which he upheld and there were interests within Lewis itself who thought the definition gave too much power to the mills.

The immediate sequence of events leading to the Harris Tweed case was prompted by one in England which established, in effect, the offence of “passing off” by stealing a geographic descriptor. That case involved the use of the term “Spanish Champagne” to describe a sparkling wine. The judge ruled that this threatened to reduce “champagne” to a mere generic name for sparkling wine.

Drawing on this precedent, Lord Hunter observed: “I should be sorry to think that the law of Scotland is unable to give protection to a class of producers … in a locality, such as was provided by the English court in J. Bollinger v Costa Brava Wine Co. Ltd”.

Thus the reputation of Harris Tweed as “the champagne of fabrics” is not only an advertising slogan but also has a foundation in law!

Lord Hunter’s judgment created massive media interest – ranging from the Stornoway Gazette’s decision that every word of it should be recorded in newsprint for posterity to a headline in the New York Times: “Harris Tweed Ruled Authentic Only if Spun of Hebrides Yarn” which alerted the crucial American market to the outcome and, in effect, told it: “Beware of imposters!|”.

The “mainland producers” immediately said they would appeal but soon dropped this intention. However, there was still unfinished business. A similar case to the Scottish one had been raised in England by the same interests and was put on hold until Lord Hunter issued his ruling.

This decision was given by Mr Justice Cross. Janet Hunter, in her book “Islanders and the Orb”, wrote: “Although the Scottish case is the one remembered, it would be fair to say that the English case was in fact just as important … because it had the effect of stopping anyone from selling as ‘Harris Tweed’ anything which did not conform to the Orb standards, i.e. it gave the Orb producers a positive weapon. The Harris Tweed case had, in a sense, been negative based on the Orb producers being the defendants”.

Lord Hunter’s judgment was the culmination of a long series of disputes around the definition of Harris Tweed and the crucial question of whether all stages in the process must be carried out in the Outer Hebrides.

The first recorded court case was back in 1906 when one, Henry Lyons, was convicted of selling a “Harris Tweed” suit made from fabric produced entirely in Huddersfield. The case was raised by the Scottish Home Industries Association, a charitable body which realised even then that the precious identity of the island industry was threatened.

In 1910, the Orb trade mark was registered by the recently-formed Harris Tweed Association. At that point, the definition was very simple – “a tweed handspun and hand-woven and dyed by the crofters and cottars in the Outer Hebrides”.

However, as the industry grew and evolved, the question of whether all stages of the process must be carried out in the islands become the subject of bitter disputes and challenges which occasionally took the industry into courts of law.

In 1942 – quite extraordinarily – Harris Tweed was at the centre of a dispute which reached the House of Lords and established the fundamental principle of working people having the right to withhold their labour; a ruling still quoted internationally in legal text-books.

The case which gave Harris Tweed this mighty place in the legal firmament was headed Crofter Hand Woven Harris Tweed Co v Veitch and Mackenzie – these gentlemen being officials of the Transport and General Workers Union which had membership among Harris Tweed millworkers, weavers and Stornoway dockers.

Controversy had raged in the 1930s over importation of mainland yarn to produce “unstamped” Harris Tweed. Believing this to be greatly against the interests of island mills and the union’s members, the TGWU called on dockers to “black” the imported yarn, leading to court action by its aggrieved producers.

The embargo lasted only weeks but the legal aftermath went on for years, funded by mainland interests which, having lost in the Scottish Courts, appealed to the House of Lords. It was indicative of their determination to break the Harris Tweed definition.

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 is good.

In the years that followed, Harris Tweed’s defences continued to rest on shaky legal ground. This was confirmed in the House Commons in 1958 when the MP for the Western Isles, Malcolm MacMillan, called for greater protection on grounds that “there are obvious signs of pirating and competition by imitations everywhere from Galashiels to Japan”.

The President of the Board of Trade, Sir David Eccles, then provoked Hebridean fury by likening Harris Tweed to “Bath buns … not all made in the place to which the name refers”. This was seized on by the mainland producers and renewed uncertainty led to the flurry of legal cases which culminated in the rulings by Lord Hunter and subsequently Mr Justice Cross.

It probably did no harm that Lord Hunter was a keen fisherman, well acquainted with the trout rivers and lochs of Lewis and Harris – and also, it is reasonable to assume, the crucial importance of Harris Tweed to the islands’ economy. He was at various times chairman of the Royal National Lifeboat Institution and the Scottish Council of the Salmon and Trout Association. Lord Hunter died in 2006 at the age of 93.

In the short term, the high level of publicity accorded to these cases contributed to a boom in demand for Harris Tweed. What is then astonishing is that, within a decade, the same Harris Tweed Association which had secured the definition of Harris Tweed in such celebrated terms was promoting plans which would have driven a coach and horses through that precious definition!

That scheme, supported by the HTA and also the Highlands and Islands Development Board, was to locate weavers in a small number of factory units operating power-driven double-width looms. It was cheerfully assumed that the definition of the fabric could then be amended accordingly – a dangerous piece of wishful thinking which was, mercifully, never put to the test.

This, incidentally, was where my own interest in the industry began in the 1970s, as an advocate of the weavers’ resistance – which eventually prevailed when they voted overwhelmingly to reject these plans. That is a 50th anniversary which will soon be worth marking!

In recent times, the industry has largely managed to stay out of the courts. There was a close call in the early 1990s when some wanted to challenge Vivienne Westwood’s adoption of her own Orb insignia. However, there were sufficient “points of difference” to make it unlikely an action would succeed. Ms Westwood continued to be a high profile user of Harris Tweed fabric and the two Orbs co-exist.

However, that episode led to the industry seeking another layer of protection by promoting legislation at Westminster which further enshrined the definition in law and created a new statutory body, the Harris Tweed Authority, to defend the Orb trade mark where necessary. Thus Harris Tweed became the only fabric in the world protected by its own Act of Parliament.

These days, the biggest problem is not “counterfeit” fabric but attaching the Orb label to products that contain little or no Harris Tweed, mainly through the internet. The HTA retains a company called Snapdragon to track down offers of fabric and products which contravene the definition and the law.

It’s all a far cry from Henry Lyons and his Huddersfield-made suit to Snapdragon but the principle is the same. Harris Tweed fabric has a name, a reputation and a trade mark that must be defended when the need arises.

For this reason, Lord Hunter’s judgment retains iconic status within the history of Harris Tweed.