This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
SCOTTISH REGISTER OF TARTANS BILL
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POLICY MEMORANDUM
INTRODUCTION
1. This document relates to the Scottish Register of Tartans Bill introduced in the S cottish Parliament on 27 September 2006 . It has been prepared by Jamie McGrigor MSP, the member in charge of the Bill with the assistance of the Parliament’s Non Executive Bills Unit to satisfy Rul e 9.3.3(c ) of the Parliament ’s Standing Orders. The contents are entirely the responsibility of the member and have not been endorsed by the Parliament. Explanatory Notes and other accompanying documents are published separately as SP Bill 76 –EN.
POLICY OBJECTIVES OF THE BILL
Overview
2. The Bill provides for the establishment of a Register of Tartans and for the appointment of a Keeper to administer and maintain the Register .
3. The stated purpose of the Bill is to create an archive of tartans for reference and information purposes. It is also hoped that the existence of the Register will help promote tartan generally by providing a central point of focus for those interested in tartan .
Key objective of the Bill 4. The object ive of the Bill is to create a not for profit Scottish Registe r. While registration is voluntary the Register will function as both a current record and a national archive and will be accessible to the public. Registration does not interfere with existing rights in tartan or create any additional rights and the purpose of registration is purely to create, over time, a central, authoritative source of information on tartan designs.
BACKGROUND
What is tartan
5. There is currently no legal or widely accepted defi nition of tartan. The re are various definitions of tartan in existence but there is little consensus on a definitive wording . Some of these include;
SP Bill 76 –PM 1 Session 2 ( 2006 ) This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
6. The Oxford English Dictionary: “A kind of woollen cloth woven in stripes of various colours crossing at rig ht angles so as to form a regular pattern; worn chiefly by the Scottish Highlanders, each clan having generally its distinctive pattern; often preceded by a clan -name, etc. denoting a particular tra ditional or authorized design….”
7. Encyclopaedia Britannica : “cross -checkered repeating pattern (or “sett” ) of different coloured bands, stripes, or lines of definite width and sequence, woven into woolen cloth (sometimes with silk added). Although such patterns have existed for centuries in many cultures, they hav e come to be regarded as peculiarly Scottish and a quasi -heraldic Scottish family or clan emblem” .
8. The definiti on of tartan contained in the Bill ( see paragraph 39 -40 below) is based on the special characteristics of tartan as a design as opposed to a type of textile. However to have the design included in the register a woven sample will have to be produced.
History and significance of tartan
Early history 9. Tartan is by no means entirely unique to Scotland . T here are tartans that can readily be identified a s such in Wales, Ireland, Cornwall, Northumberland, as well as regions of France, Holland and Spain. Tartan has also been found further afield than Europe and dating back to two millennia. The so called Mummies of Urcumchi discovered in Western China had o n their possession what is said to have been woven wool yarn of complex tartan patterns. Yet it is a design that has undoubtedly come to be most closely associated with Scotland.
10. The Scottish Tartans Museum suggests that the earliest piece of tartan dis covered in Scotland is thought to be the “Falkirk Tartan ”, dating from sometime between the 2nd and 3rd Centuries.
11. Tartan is strongly associated with Scottish clans and Highland culture . Various testimonies from the 16th Century appear to identify tartan a s a fighting uniform of that era, fo r example, Monsieur Jean de Beayque described in 1549 how “several wild Scots following them [the Scottish army] and they were naked except for stained shirts, and a certain light covering made of various colours .”
Tarta n in the 18th century 12. A key event in the narrative of tartan is probably the battle of Culloden (1745) the defeat of Bonnie Prince Charlie and the end of the Jacobite cause. It is disputed whether the Scots army were really distinguishable by clan by their respective tartans at this juncture but it is certainly evident that wearers of tartan were subsequently punitively targeted.
13. Passing a number of Acts between 1746 and 1747 dealing with the disarming of the Highlanders, the UK Parliament ’s 1747 Act of Pro scription contained a section that would become known as the Dress Act. This made “wearing the Highland dress ” including tartan illegal in the Highlands. It also outlawed the production of tartan in the Highlands.
2 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
14. The 1747 Act was eventually repealed in 17 82 but during that time it conferred an outlaw status and could only have encouraged much of the symbolism that is linked to tartan.
Tartan in the 19th Century 15. Tartan was an integral part of Highland uniform and clan culture; in the years of proscription i t was still popular with the Scottish military regiments and with those Scots living in North America and the Antipodes. It was not until the early and middle 19th Century however that it really began to impact on wider and mainstream Scottish society.
16. Rob ert Burns, the National Bard makes references to tartan in his work, for instance “Bonie Dunde e” and “The Jolly Beggars”.
17. Scots historian Tom Devine reflected on the connections between tartan, Highlanders and British Empire: “Highlandism as we know it - t he kilt and tartan and sporran - was a construct of the 1790 to 1840 period. A very powerful influence was the fame of the Highland regiments in th e service of the British state.”
18. Walter Scott, through his novels Heart Of Midlothian and Waverly, has also b een credited by many with making a major contribution to this powerful association of Scotland and Scottishness with tart an.
19. Tartan is one of Scotland ’s most instantly recognisable symbols.
Tartan today
20. Tartan continues to be regarded with much affection by countless Scots whether born here , of Scottish descent, naturalised citizens or children of immigrants, and even those of no direct connection with Caledonia who simply find the pattern aesthetically pleasing.
21. It is worn by those who follow the Scotland football team (the Tartan Army) but equally by those fans of the Scottish rugby team. It is of course always very much in evidence at weddings, ceilidhs, graduation ceremonies, receptions, galas, balls, openings, and Highland shows.
22. Tartan ’s popularity do es not end with formal wear . Neil Armstrong, the first man on the moon ( Apollo 11 ) was reported to have carried a swat ch of Armstrong Tartan with him. Alan Bean ( Apollo 12 ) was apparently accompanied by a piece of McBean Tartan the pieces of which he late r distributed to various McBean societies throughout the world.
23. Fashion designers such as Vivienne Westwood , Ralph Lauren and Jean Paul Gaultier have used traditional Scottish tartans for many years in their designs, suggesting tartan is popular with both designers and consumers.
24. Most recently there have been press reports covering the First Minister wearing a modern kilt at Tartan Week, the creation of a Capercaillie tartan to raise funds for the RSPB, the creation
3 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006 of a Chinese – Scots tartan and the redis covery of a Dubai tartan. Tartan is traditionally found at weddings, Madonna’s husband Guy Ritchie wore a Hunting Macintosh Tartan for their wedding at Skibo Castle. A recent press report indicated that a Scottish designer is now supplying wedding dresses and tartan accessories to clients in the Middle East.
25. Various organisations have claimed or commissioned their own tartan , perhaps to highlight a link to Scotland or possibly just to gain the kudos pe rceived to come from having their own tartan. Those wi th their own design outwith the more obvious clans, regions and bodies within Scotland include: American states, Canadian provinces, foreign military units, fire brigades, many corporations such as British Airways , Amnesty International, the French Bretons , the Spanish Galicians, numerous football clubs including both Celtic and Rangers, and a num ber of schools and universities.
26. Whatever the origins of tartan , the endurance of its popularity and its powerful association with Scotland are without dispute.
Current arrange ments for recording tartan
27. Pre -Culloden there was a loose and informal practice of recording tartan designs based on local custom and preferences . Thus it appears that tartans were not always accurately attributed to clan or district . Also th e same tartan might be produced for several customers who each may have understood their design to be unique, with the choice of some designs likely ow ing far more to the abilities of the local weaver than to any measure of tradition or authenticity of des ign .
28. The Act of Proscription only applied in the Highlands and meantime production of tartan continued in the central belt and lowlands in order to serve the demand initially by the military . In the first part of the 19 th Century the Highland Society of London strove to produce a level of standardisation for tartan designs by gathering specimens and also asking clan chiefs and heads of families to lodge what they considered to be “their ” tartan.
29. In 1963 the Scottish Tartans Society (STS) was formed to re search and preserve Scottish tartans. It created the Register of all Publicly Known Tartans containing names and other relevant information on tartan designs .
30. A former consultant to the STS formed a company under the name Scottish Tartans World Register a nd register s the name and details of tartan designs as and when asked.
31. In 1995 another body, the Scottish Tartans Authority (STA) was formed, comprising individuals with an interest in tartan, representatives of Scottish weavers and the Tartan Educational and Cultural Association (an American off -shoot of the STS). The STA membership and Board includes representatives from 75% of the Scottish tartan weaving businesses. The STA has over recent years created t he International Tartans Index which contains rec ords of over 3,700 tartan designs. 1
1 http://www.tartansau thority.com/Web/Site/Search/searchintroduction.asp, accessed 28 August 2006
4 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
Recording clan tartans 32. The only semi -official recognition of tartan that currently exists is where a clan chief requests to the Lord Lyon that a t artan design be recorded as a tartan of his clan. Currently about 100 tart ans are recorded in this way.
The need for a Register
33. There is no legislation covering the registration of tartans. There are currently thought to be between 3,000 and 4,000 tartan designs in existence and the number is increasing at the rate of about 135 per annum.
34. As outlined above there are now numerous worldwide organisations that have either claimed or commissioned their own design of tartan. In addition, t artans are now being designed and manufactured all over the world, and in various forms , and th ere is no single secure central authoritative source listing existing tartan designs. This could mean the same design of tartan being affiliated to several different sources, each believing the design is unique to them.
35. Most importantly, the existing Scot tish based organisations who currently register tartans are independently owned and managed and should they cease to operate then the information they hold could be lost to the nation.
36. The creation of a statutory Register would ensure this significant cul tural information could be safeguarded for the future. It would also provide reassurance to parties commissioning their own tartan that the design had not been previously registered by others.
Existing Registers 37. It is hoped that the existing privately own ed and maintained registers wherever located will migrate their records to the Keeper of the Register . T he Bill seeks to facilitate this by stipulating that no fee will be charged for registration of a tartan from an existing collection.
How the Bill will work
Establishment of the Register and Appointment of the Keeper 38. The Bill sets up the Register and provides for the appoint ment of a Keeper by the Queen on the nomination of the Parliament. The terms and conditions of the Keeper’s appointment are to be det ermined by the Parliamentary Corporation. This follows the recent legislative precedent for appointing Commissioners.
Definition of tartan 39. The Bill provides a definition of tartan: “a tartan is a design made with two or more alternating bands of colour w hich combine vertically and horizontally to form a chequered pattern or sett.”
5 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
40. The definition includes the pattern being designed and produced in a variety of forms, for example in printed form on paper or on a computer screen. It does not specify that t he pattern must be woven, however for the design to be included in the Register a woven sample of the design must accompany the application.
Registering tartan 41. The Bill allows any person to apply to register a tartan, however th at person must apply in wri ting and certify that they either have a right to register the tartan or that (in the case of a historical tartan) there appears to be no such person. All applicants must provide an indemnity to the Keeper from any liability to meet damages or expenses in connection with registration. This provision would apply if there is any claim against the Keeper for wrongful registration or breach of copyright. Registration itself does not affect any pre -existing intellectual property rights. The Bill requires that c ertain information and documentation must be provided including a textile sample, a coloured photograph or drawing and a description of the tartan. If the owner or designer is different from the applicant, their name can only be included in the application with their consent. The application must also be accompanied by the appropriate fee.
42. The Keeper’s role in determining whether a tartan design is to be registered is an objective one. He must accept the application unless the application does not comply w ith the requirements or where further information or documents have not been forthcoming or where the application relates to a tartan design that has already been registered. The Keeper is empowered to require further information to be submitted to him as a result of initial consideration of an application. He may also reject an application where it gives rise to matters which require to be determined by a court. While the Keeper may accept or reject an application he must in all cases notify any applican t of his decision and the reasons for it.
43. The Bill makes provision for reconsideration of rejected applications. There is also provision for amendment by the original applicant and by other parties. This could happen where the owner or designer has not giv en consent for their name to be included or for their tartan to be registered or where some inaccuracy is discovered.
Functions of the Keeper 44. The Bill places a general function on the Keeper to prepare, keep and publish the register. The Keeper must also publicise the existence of the Register and make it accessible to the public. The Keeper is also required to make arrangements for the care, preservation, cataloguing and indexing of the Register.
45. The Bill sets out certain other functions for the Keeper; these include carrying out research and providing information and other educational material in connection with the Register. The Keeper can also provide services to the public in connection with the register, these could include providing information on tartan to the public, by attending events, functions or conferences to promote or raise awareness of the Register. The Parliamentary Corporation is to pay any expenses reasonably incurred in the exercise of the Keepers function.
6 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
Publication of the Registe r 46. The Bill requires the Keeper to ensure the Register is open to inspection by the public on payment of the appropriate fee. The Bill gives powers to the Keeper to determine the arrangements for public access to the Register. The Keeper may wish for access to be by appointment or to have set hours for when the public may have access or for the access to be available via the website.
Fees for Registering 47. Registration of any tartan incurs a fee. The Bill provides that the Keeper must charge fees for such matt ers and for such amount as may be approved by the Parliamentary Corporation. So, fees may be incurred for services other than registration. The Bill provides that fees are not charged for regi stering tartans from existing collections which existed prior to the commencement of the Bill. This is to facilitate and encourage existing registers to migrate the data they have to the Register.
48. The Parliamentary Corporation may also approve different fees, including nil fees, for different purposes, for example t he Keeper may not wish to charge a fee for providing educational information to schools or colleges.
Annual reporting 49. The Bill requires that the Keeper must produce an annual report on the Register and his functions and that the report must be laid before Parliament. It is for the Parliamentary Corporation to determine the form and content of the Annual Report.
CONSULTATION
50. Consultation on the proposal was carried out between February and May 200 5, although late responses submitted after the closing date were accepted. The primary purpose of the consultation was to seek views and opinions, from those with an interest in the subject area, on the detail of the proposal in order to assist with the development of the policy and the drafting of the Bill.
51. Over 170 copies of the consultation paper were sent out to various g roups and individuals including manufacturers, designers, clan chiefs, museums, retailers and local councils. 62 parties responded to the consultation. Copies of the responses along with an analysis have been placed in the Scottish Parliament Informati on Centre (SPICe). The analysis is also available online at http://www.scottish.parliament.uk/business/bills/mem bersBills.htm
52. 77.4% of the responses were broadly supportive of the proposal to create a National Register of Tartan. Only 8.1% were against the proposal with 14.5% choosing either not to adopt a position or off er ing no comment.
7 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
Definition of tartan
53. The definition that appeared in the consultation document was “A woven textile design whereby the warp and the weft repeat the sequence and dimension of the various colours employed throughout so as to produce a distinctive rectangular pattern.”
54. 22.6% of res pondents agreed with the definition of tartan as provided in the consultation paper. Some of these respondents pointed out that the use of the term "woven" restricted designs in other media while others thought the definition was too wide ranging and neede d to be more prescriptive. Several industry respondents stated that it would be difficult to provide a definition without being criticised by someone. There was also a concern about the difficulty of defining "tartan" without unduly restricting the creati vity and innovation of designers and manufacturers .
55. After considering all responses the definition was amended to th at set out in paragraphs 39 - 40 above. The definition is primarily concerned with the design. However for a design to be entered in the Re gister it must be accompanied by a sample of woven cloth. This reflects the concerns of those who believe tartan to be more than the design.
The fate of existing registers
56. There was significant discussion concerning the fate of the existing registers. As these are privately owned it is not within the scope of a Member’s Bill to place any requirement on them to cease registering or to pass over the information contained in their register. The Bill however provides for the Keeper to accept information from the existing registers and seeks to encourage registration from them by exempting currently registered tartans in existing collections from the payment of fees.
57. It is hoped this will facilitate and encourage the amalgamation of the existing registers into a secure central source.
The information to be registered for each tartan
58. There was a wide range of views on what information should be included against individual entries in the register with some respondents favouring more detail than others. One respond ent pointed out that information on thread count should not be shown as this would enable rivals to manufacture the cloth. Two respondents pointed out that some designs have more than one name or that more than one tartan design shares the same name.
59. There were also diverse views on what information should be included in the register for each individual design .
60. The contents of each entry have been outlined in paragraph 41 above. As well as stating what the application must include the Bill also gives power to the Keeper to specify the form of the application and to specify different forms for different purposes. This will, for example assist the Keeper in receiving information gifted from other registers, especially where ancient tartans are involved and the owners or designers are either not recorded or are deceased.
8 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
Extra duties of the Keeper
61. It was generally agreed that the Keeper should do more than simply "keep" the Register of Tartans and that he should be working to preserve tartan as a Scottish asset and promoting it both at home and abroad.
62. The Bill specifies only the requirements placed on the Keeper with regard to duties in respect of the Register. It is hoped that the existence of the Register and its public accessibility will help to promote tar tan and Scotland.
63. The Bill enables the Keeper to carry out research, provide information and other educational material in connection with the Register on payment of any appropriate fee. The Keeper can also provide services to the public in connection w ith the register on payment of any appropriate fee. The level of fees is set by the Parliamentary Corporation and they have the power to determine that a nil fee is appropriate for certain activities. If it was felt that a particular service would promote the Register, tartan or Scotland. Promotion could include, for example, the Keeper attending events, functions or conferences to promote or raise awareness of the Register.
Registration fee for existing and new tartans
64. The questions on fees and costs pro vided a wide spectrum of answers . Estimated costs that could be incurred for establishing a Register and appointing a Keeper ranged from £10K to £270K . Some respondents highlighted the issue of costs should disputes arise between the Keeper and those wishi ng to register a tartan although no estimate of what those costs might be was given. The suggested registration fees also ranged widely from £50 to £1000. The issue of ownership of historic tartans was also raised in relation to fees with 3 respondents poi nting out that some tartans belong to towns; districts; families etc. and so have no direct sponsor to pay the fee.
65. The Bill sets out that a fee will not be charged for tartans from existing registers that wish to register.
66. The Keeper will set the level of fee for registering new tartans, which will be subject to approval by the Parliamentary Corporation. As the Register is intended to operate as a ‘not for profit’ organisation it is likely that the fee will be set at a level that covers any costs involv ed. Disputes are unlikely given the purely factual nature of the information required to register. Disputes over copyright or designs will continue to be covered by other forums including the courts.
Who should appoint the Keeper
67. On the subject of who shou ld appoint the Keeper , the Scottish Parliament or the Lord Lyon were suggested by the greatest number of respondents (11%). Several respondents also suggested that some form of advisory committee should be appointed to assist the Keeper with others suggest ing that an appeals body is required should disputes arise over designs eligible for registration.
9 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
68. It was decided that the Keeper should be a Crown appointee, that is they will be appointed by the Queen on the nomination of the Parliament. A Keeper will in itially be appointed for no more than 5 years, the period of appointment to be determined by the Parliamentary Corporation, and may be reappointed.
69. As indicated above most disputes are unlikely to be for the Keeper to resolve.
Copyright and intellectual property
70. There were several views expressed throughout the responses on intellectual property matters. Some respondents suggested that the register should give protection to tartans that are under copyright by preventing use or that the Keeper should issue licenses for intellectual property. However the consultation document does make it clear that i ntellectual property is a matter reserved to Westminster under Part II Head C4 of Schedule 5 to the Scotland Act.
71. Intellectual property rights will exist over m any tartans that are registered under the Bill. Registration creates no right to the applicant to exploit the tar tan in any commercial way nor give s any special status to registered tartans. The Bill is drafted so that the Keeper plays no part in determi ning whether specific rights of intellectual property attach to a particular tartan. The Bill provides that any person may register a tartan. However it is for the applicant to request and authorise regist ration of the tartan. They must also certify that t hey have the right to authorise the Keeper to register the tartan and to provide an indemnity against incorrect registration. A right to register could be as an owner of a tartan but could involve registration with the consent of another person with rights in that tartan.
72. For some tartans there may be overlapping intellectual property rights. In considering an application or an amendment to an entry, the Keeper cannot determine whether the applicant has a right in a tartan. The Keeper will reject the appl ication where there is a question that requires to be clarified elsewhere including matters that fall to be determined by a court.
73. The application and entry must provide the name of the owner and designer if different from the applicant and requires thei r consent for their name to be included.
ALTERNATIVE APPROACH ES
74. There is only one alternative approach considered and that is to maintain the status quo.
75. There are two main disadvantages of this course of action. The first has been outlined in paragrap h 35 above regarding the privately owned status of the existing registers and the potential of the information being lost to the nation should they cease to exist for whatever reason. The second is that the existing sporadic system means that there would continue to be no single central register of tartan.
10 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
EFFECTS ON EQUAL OPP ORTUNITIES, HUMAN RI GHTS, ISLAND COMMUNITIES, LOCAL G OVERNMENT, SUSTAINAB LE DEVELOPMENT ETC.
Human rights
76. The Bill has been considered against the following provisions of the Human Ri ghts Act 1998.
77. Article 1 of Protocol 1 states that: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided f or by law and by the general principles of international law.
78. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general inter est or to secure the payment of taxes or other contributions or penalties.”
79. The Bill does not require the deprivation of anyone ’s possessions. The Keeper will only be authorised to register a tartan if the application process satisfies him that he has auth ority to do so from any person with rights to the tartan. Nor is any measure of control instructed. It is therefore not considered that Article 1 is engaged.
80. (b) Article 6(1) states, among other things, that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
81. No mechanism is provided in the Bill for rejected applications to be determined by a court or any other tribunal. It is , however explicit in the Bill that no new rights are to be created by the registration of a tartan and that a tartan does not require to be registered before any person can sell, weave or otherwise deal w ith it. The indemnity that every applicant has to provide will also ensure that a tartan is only registered by someone who has the right to do so The Keeper does not determin e civil rights and obligations and Article 6 is not engaged.
Article 10 82. Article 10(1) states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
83. Article 10(2) states that the exercise of these freedoms may be subject to such restrictions as are prescribed by law and are necessary for a number of legi timate aims.
84. Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed. Artistic design may therefore be considered as a form of expression.
11 This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
85. Regulation which limits an applicant ’s choice as to the fo rm in which it could present its designs may in certain circumstances constitute an interference. However, the system of registration proposed by the Bill is voluntary and specifically provides that the ability to exploit a tartan is unaffected by registra tion. There are therefore safeguards to ensure the ability of an applicant to find an audience for a tartan which the Keeper has refused to register.
86. Following a rejection, subject to copyright, the applicant could continue to publish and disseminate the ir design without r estriction. It is considered that Article 10 rights are unaffected.
EC Impact
87. It is not considered that there is any impact on European Community legislation.
12
This document relates to the Scottish Register of Tartans Bill (SP Bill 76 ) as introduced in the Scottish Parliament on 27 September 2006
SCOTTISH REGISTER OF TARTAN S BILL
POLICY MEMORANDUM
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