Official Report 338KB pdf
Item 4 on the agenda is consideration of the Scottish Register of Tartans Bill. I invite Jamie McGrigor and his team to join us at the table. We have received apologies from Mike McElhinney of the Scottish Executive, who is unable to join us today, although we are not entirely sure of the reason for that.
Can you explain that again, convener?
Previously we agreed to invite the Scottish Executive to give us its view on the bill. There is no representative of the Executive here because the Executive has not yet finalised its memorandum on the subject.
It is difficult for the committee to consider a draft stage 1 report and deal with matters conclusively until we have heard what the Executive has to say.
I was going to suggest that in order to finalise our position, we will have to hear what the Executive's position is after we have heard oral evidence from Jamie McGrigor and his team.
When was the committee advised that a representative of the Executive would not attend the meeting? I apologise if you said when that was and I missed it.
This morning.
We must complain in the strongest possible terms. There has been a pattern of very late Executive engagement in the consideration of members' bills in general—the Enterprise and Culture Committee has been at the receiving end of that. Such late engagement has caused significant difficulties and has led to debates not being sufficiently informed at an early enough stage. The Executive has, at best, been extremely discourteous in telling a parliamentary committee on the day that it is to hold a meeting that it will not be possible to hear the Executive's views in that meeting.
As you said, this is not the first time that this has happened to the committee; members may remember that something similar happened with the St Andrew's Day Bank Holiday (Scotland) Bill, which was not helpful.
You have put words into my mouth, convener. However, I am uncomfortable with what has happened. A procedural point should be raised in the appropriate procedural terms. We do not have to use flowery language. We should say that the committee does not regard it as acceptable that it should be notified on the day that a meeting is to take place that an Executive representative will not attend to give the Executive's views. More generally, we should say that it would be good practice and in the best interests of the Parliament if the Executive engaged earlier in debates on members' bills. We have said that before.
Do members agree that a letter to that effect should be sent to the Executive?
Susan Deacon can check the letter so that, being the old fossil that I am, I do not include in it language that is too flowery.
Thank you very much, convener. I have brought with me David Cullum from the non-Executive bills unit to answer any technical questions that members may have.
I thank Jamie McGrigor for that comprehensive and stimulating introduction. I will let Murdo Fraser ask questions first so that we can see whether he supports public ownership and control.
Or even nationalisation.
Thank you for that, convener. I had better think of some questions.
Funnily enough, that is one of the original reasons why the steering committee asked me to introduce a bill. In his letter to this committee's convener, Brian Wilton of the Scottish Tartans Authority said:
I want to try to address the point that Karen Gillon made about nationalisation. It seems to me that the proposed function would not be very different from that of the Patent Office, which exists to regulate intellectual property rights and acts as a policeman for intellectual property. I suppose that my concern about the proposal is that an additional cost—albeit modest in comparison with a great many other costs that have been approved by the Parliament—would be placed on the public purse. Therefore, I was interested to hear about the possibility that the Lord Lyon could perform the duty of keeper at substantially lower cost. Has Jamie McGrigor been in communication with the Lord Lyon's office about that? What is the Lord Lyon's view on the proposal?
I will ask David Cullum to explain the technical points about how easy it would be to do that.
Rob Marr, who is on my left, should really answer. The advice that we have received is that it would be within the Parliament's legislative competence to give the Lord Lyon the function. We have examined the statutes that create the Lord Lyon's position. Several amendments to the bill would be required to achieve that, but it would not be technically difficult.
What is the point of the bill, Jamie? What would it protect? According to the evidence that we have received, it would not protect tartan. People would still be able to make a tartan and call it a tartan.
The point is to elevate the status of tartan, which has for some reason been thought of as cheap and perhaps tacky. The point is to make more of the fact that tartan is one of our main symbols and emblems.
Do you suggest that the bill would take tartan out of the hands of ordinary people by making it expensive?
On the contrary. The bill would put tartan into the hands of ordinary people. It would give tartan to the people of Scotland instead of keeping it in the hands of a private group.
How would the bill give tartan to Scottish people? People in Scotland wear tartan all the time. You were right to mention the tartan army, which often wears what you describe as cheap and tacky tartan. Do you suggest that those people should not be able to wear that cheap and tacky tartan and that they should have to go to one of your friends in the weaving industry to buy expensive tartan?
No—absolutely not.
So what is the point of the bill? I do not get it.
If you do not mind my saying so, you are deliberately not getting it.
I am not deliberately not getting it.
If you read my submission—
I have read it.
If you read my submission, you would know why the bill is important. VisitScotland's evidence says that it is extremely valuable to the tourism industry. Did you read that?
The submission does not say that. It says that there is no evidence to suggest that it
The submission talks about helping tourism, and tourism that relates to genealogy and preserving our culture and history.
The submission says:
VisitScotland says that because it has not conducted a survey. If it did so, it would almost undoubtedly find evidence. Surveys that have been done abroad have found that people from foreign countries buy large quantities of tartan when they come to Scotland. It is one of the highest-value goods that they purchase.
I am trying to get at what the bill would add. People who come to Scotland already buy large quantities of tartan. Scottish football fans already wear it and people already use it for weddings. We already get tartans for every special occasion or tartans being commissioned by football teams. What would the bill do?
It would show that Scotland, which has been able to look after some of its own icons properly since devolution, cares about this incredible calling card. VisitScotland declares that there is merit in the bill; so do all the councils, Andrew Cubie and Keith Lumsden.
Where is the evidence that Scotland could not care less about tartan and needs to spend £140,000 in year 1 and £100,000 in every other year to safeguard the rights of particular private individuals?
It is not to safeguard any private individuals at all; it is to safeguard the value of what the majority of Scots regard as their greatest emblem.
I do not understand how having a register would safeguard tartan. Tartan has been around for hundreds of years, is used throughout the world and is thought of as an iconic emblem of Scotland. I do not understand how creating a register would do more than that.
It would, because it would put tartan in the public domain instead of the private domain. It is unusual for a Conservative to want to do that, but tartan is Scotland's most vital emblem. People abroad see tartan and think of Scotland and Scots. Most nations would give their eye teeth to have that kind of brand. Without the bill, we are leaving tartan in the hands of one or two private individuals who run registers, who told me that they could not agree and that they wanted a statutory register. They asked me to make a register in the public domain, which is all that I am doing, and to give it back to the people.
They cannot agree so we have to pay for it.
No.
Yes.
They cannot agree, so they might wither on the vine and we might end up with no register of something that is priceless to Scotland's heritage.
I need to give other members a chance, Karen.
My understanding is that the main issue is having a register. The bill is about registering tartans and keeping the register in the national domain so that it is not held by two private companies. It is about maintaining a well-documented database of all the tartans. As a MacKenzie—now a Baird—I can see the need for that from how our tartans have changed. We have ancient, hunting and modern tartans; it gets extremely confusing.
It does get confusing.
The essence of what you are trying to do in the bill is to establish one register in the public domain to which everybody can refer—the definitive register.
You could not have put it better. It would not be compulsory to register anything, but the register would be authoritative and definitive. People would be able to say, "This is the Scottish register," instead of having to go to two or three different registers, all of which have different ideas about what is what. That is why the organisations came to me in the first place. They know that they cannot agree, but tartan is too valuable to Scotland to be allowed to wither on the vine. We need it kept in history for Scotland.
My concern, which is based on evidence that we have received, including what you have said today, is about the divisions between the two holders of the current registers.
There are four, actually.
There seem to be two main ones.
The Scottish Tartans Authority and the Scottish Tartans World Register.
My concern is that those two organisations hold a huge historical information base that they would not be willing to divulge for use in the proposed new national register. If we could get those organisations to buy into the idea of establishing a national register, I would be more confident in supporting your bill. It concerns me that you might establish a register but not have the historical information base that would be vital to it.
Those are good points. Keith Lumsden of the STWR and James Scarlett—who owns the official Scottish Tartan Society register, which is the basis of the STA one—have both said that they would be more than happy to make the information available for a new register. The third register that I know of is held by the Lord Lyon King of Arms. It contains only about 100 tartans, but he would be perfectly happy to make the register available to the public. The only register outstanding, therefore, is that of the Scottish Tartans Authority.
Can you not just nationalise the authority?
The STA has obviously put a lot of revenue into devising its register, and it has a huge interest in the work that it has already done. It is a private company, so you can understand that it will not be willing to hand over its work without there being some sort of compensation. Can we offer the STA anything to encourage it to buy into the national register?
The STA has come to me to say that we need a national register, but the point that it makes is that it wants to be that national register. We cannot legislate for that. We can legislate for a register and a keeper, but we cannot legislate for the STA to be those things.
Yes, you have.
Much of the STA's knowledge is already contained in the other registers. It is important to note that the proposed national register would enhance the STA's work in promoting tartan and in promoting the work of the weavers who are the STA's sponsors. The register would increase people's turnover and be good for Scottish business. I think that everybody accepts that.
You just said that the register would be good for Scottish business. I am thinking of a point that Karen Gillon made earlier and I am struggling to understand how you can make such a statement. What is your evidence? I can understand why we would want to have such a register but, if it is not compulsory to register a tartan, the register will inevitably be incomplete. We are not talking about copyrighting tartans, so there will be no protection and people will be able to do whatever they like—here, in Canada, or anywhere else. How would the register help Scottish business?
As I have said, the register would elevate the status of tartan. We are not trying to rewrite history. The tartans that are there already will be held in an archive. We are not going to prevent anyone from producing what Karen Gillon referred to as cheap and tacky tartans. They are welcome to do that if they want.
You suggested that they were cheap and tacky.
I did not suggest that. I said that I had heard that there are some elements within tartan that some people seem to make cheap and tacky. I think that that is wrong for Scotland. Tartan is our chief emblem, and it is held up as such.
I accept that, but—
I am coming back to your point about business. I think that the bill will encourage business and will encourage people to have more kilts made. It will encourage people's interest in tartan, and we might well end up having a proper museum of tartan as a spin-off, which would be very useful for the capital, the Highlands or wherever such a museum might be put. I can envisage all sorts of business emanating from this tiny bill, and I think that people in other countries can, too. They are wondering why Scotland does not go ahead and admit that it has something really good and make the best of it.
I accept most of what you say about tartan being an emblem of Scotland and it being the sort of thing that we should promote and use to promote Scottish business. I struggle, however, when it comes to how the establishment of a register would grow Scottish business. If a register was established, that would not stop Canadian or Chinese manufacturers of tartan scarves making them, for example. Nothing would change for business, I would say.
You suggest that nothing would change if we had a register, but it would. With respect, it would have to. If the register was in the public domain, it would keep the cultural element and history of tartan for our nation in a way that private registers may not do—and there is a lot of danger that they will not do. I do not know whether anybody in this room feels that tartan is not important to Scotland; 95 per cent of the people to whom I have spoken about my bill have said that tartan is a very important thing for Scotland. The Scottish Parliament can and should take these measures to elevate our greatest icon and enshrine it in statute.
I think that we are mixing up two things. I do not think that anybody would disagree—I certainly do not—about the importance of tartan. It is a fundamental thing, which is extremely useful. Most countries would give their proverbial right arm to have such a recognised national emblem.
Do you not think that most countries would have a register?
There is no disagreement about that. I absolutely agree. However, I do not see how the argument follows. If we were trying to set up a copyrighted register that protected tartans, and if it was compulsory for all tartans to be included on that register, I could see how that would protect tartans, which would have a status that they do not have now. If registration was compulsory, the register would be completely authoritative, with nothing missing. However, the proposed register would do none of those things, but would just be a big list of all the tartans that exist. I am not trying to underplay it, but that is what it seems to be. The tartans on the register would simply be those that had been registered by people who wished to register them. Tartans that had been made by those who did not wish to register them would not be included.
There would be no element of compulsion to the register, as has rightly been noted. Registering a tartan would not create any new right on it that did not exist before, nor would it take away any right that existed prior to registration. It would simply record the fact that the tartan exists. In time, as the number of applications grew, the register would become a more comprehensive record of the tartans that exist. It certainly would not and could not create any new rights that did not exist previously.
I think that we are now clear on that, but it has been a point of some confusion. If someone in the street were to be asked whether a register was a good idea, they would say yes, but they would assume that there was some additional protection. That has been part of the problem.
The simple answer is no but, looking at the financial memorandum, it is clear that there would be an immediate reduction of £37,000.
Is that per year?
No, that is in the set-up costs. The recruitment costs, which are £17,000, would not apply, and we would not need separate rental costs, which are £20,000. There would be an instant saving of £37,000, and there might be other savings from sharing equipment, for example.
So would the intention be to pay the Lord Lyon the £20,000 annually?
That would have to be discussed.
Given that the Executive is not here to speak for itself, can I ask Jamie McGrigor to attempt to speak for it?
For whom?
The Executive. Well, perhaps not to speak for it, but can you give us any insight into the contact that you or those who have worked with you on the bill have had with the Executive? Either at the more advanced stage, or—this is my main interest—at earlier stages, were there discussions about how best to proceed?
I have spoken to various members of the Executive about it, including Margaret Curran and Allan Wilson, but the Executive comes and goes every three or four years.
Before I get ticked off, I should make it clear that it would not be fair to ask you about the views that the Executive has expressed—that is for the Executive to tell us directly. However, I am interested in any discussions that have taken place about vehicles to achieve the objective of a register of tartans. As an individual MSP, you have had discussions with individual ministers, but have any of the bodies that you have worked with had a meeting with the Executive to discuss the idea?
You mean formal meetings, as opposed to informal chats.
Yes—what communication has there been?
We have had many meetings with the committee that I told you about, and I believe that, after one of those meetings, the STA asked the Executive whether it could legislate for a register that would be controlled by the STA. It was told that that would not happen. I also believe that, at an earlier stage, the STA tried to introduce a bill of its own. Is that right, David?
My first involvement was when the STA sent me a draft bill, which was probably in the nature of a private rather than public bill. When it started up, the STA received Executive funding to help it establish its registers. My understanding—it is no more than that—is that it has made approaches for funding from time to time but is not currently in receipt of any.
What about national agencies? I am thinking, for example, about Scottish textiles and VisitScotland. What meetings have taken place with them to discuss ways of achieving progress?
I put out the usual consultation and went through all the steps that one has to go through to introduce a member's bill. A lot of the groups that have been mentioned were written to, and VisitScotland made a submission that was supportive of the idea.
VisitScotland's submission was discussed earlier in respect of Karen Gillon's questions. The submission from Scottish textiles states:
Which bodies?
The national bodies, such as Scottish textiles and VisitScotland. You told us today that the only way to resolve the matter—this is a key issue that several members of the committee raised when we discussed the bill at a previous meeting—is through an act of the Scottish Parliament.
Through a piece of legislation.
Yes—a piece of legislation. An act of the Scottish Parliament, ultimately. You also told us that the main reason why we need an act is that it has not been possible to reach a voluntary agreement. I am trying to establish what steps have been taken—by the Executive or agencies acting on its behalf, or by the STA or others acting at its behest—to broker a voluntary agreement and resolve the matter without the need for an act of the Scottish Parliament.
I now understand what you are asking me. All that I can say is that the discussions have been going on since 2001. There are minutes of every single meeting. I was not called in until 2003, but the earlier meetings involved many members of the industry and all the people who have registers. They went down all sorts of routes to try to find a non-legislative route, but they could not agree. That is why, finally, they came to me and asked whether we could legislate to create a Scottish register of tartans in the public domain, so that the history of tartan and everything that it means to Scotland is kept for our history and for the Scottish people. The private registers might not wither on the vine, but generally, in the nature of things, private things do. That happened to the previous register 10 years ago.
In the interest of time, I will move on, but I note that, when we get information from the Executive, it would be useful to find out whether an impartial national body or arm of government has attempted to broker an agreement.
I have been in the middle of the later attempts to define tartan. The submissions to the committee and to Jamie McGrigor's consultation refer to hundreds of years of dispute over the definition of tartan. You are right to say that the definition in the consultation is different from the definition in the bill. That reflects some of the responses that Jamie received to his consultation, but it also reflects input from the legal team and draftsmen. The definition in the bill has the specific purpose of enabling a starting point for registration. The policy instructions that we were given were that the definition should be as open as it could be, so that there were no restrictions on who could design or register a tartan. The definition was to be as inclusive as it could be.
I apologise for interrupting you, but I would like you to clarify something that you said that seems to be counter to the process of legislation. You say that the bill will provide a vehicle for people to do this if they want it to happen. I am genuinely struggling with the idea of why we would need the force of legislation to facilitate voluntary agreement.
Because the very people who are divided have asked that there should be a register in the public domain.
Are there any international or United Kingdom examples—particularly if they involve legislation—of this type of approach to protecting something that, like tartan, is of national significance?
I would point you to the Registers of Scotland. The register of sasines and the land register, with which everyone is familiar, developed as voluntary registers. Way back in time, there was no requirement to register one's land. However, as the situation has developed, it has become normal custom and practice. There are registers of things such as testamentary documents, which are preserved as historical records for the nation. It is possible to go down to Meadowbank House and have all sorts of documents preserved. That resource has developed over time and the legal profession, in particular, uses it as a repository for safety. It has also become quite a well-used record for genealogists and other researchers. That brings in quite a lot of trade—certainly, the public annual reports of the Registers of Scotland refer to that. That is the best example that we can come up with at this stage.
Given that you are talking about creating a kind of archive, what discussions have taken place with the National Museums of Scotland or the National Library of Scotland, which I would think are places where we would store information that is relevant to the history of the country? You talked about a museum of tartan, which could, obviously, be part of the National Museums. I would be much more happy with that sort of suggestion than I would be with the idea of having a register that has been driven by private interests.
I agree with what you say. The museum is frightfully important. I do not know whether members have visited the Kelvingrove Art Gallery and Museum, which has the most beautiful new section on tartan. However, it does not have a register that says what the tartans are. We are talking about a possible 6,000 tartans out there. Given the complications, a museum must get the historical facts correct, but we cannot just expect a museum to do that on its own.
But I—
Sorry, Karen. I need to give Christine May a shot.
Jamie McGrigor has suggested that the keepers of the various registers recognise the importance of the records that they have for the history of Scotland. Is it fair to say, however, that they are not prepared to subdue their mutual loathing—or, indeed, their commercial self-interest—in order to bring the registers together voluntarily for the good of Scotland? That seems to be what we are talking about.
Two of them are prepared to do that and one is not.
So, two are prepared to do that voluntarily, without any legislation—is that correct?
It is not quite as straightforward as that. The two big registers will not hand their records over to each other. Mr Scarlett refers to having control of half of what is in the STA. He will not hand that over to the STWR either. Therefore, neither of them will ever have an authoritative record. They both keep records in a different way, as well. There is no consistency between them.
I suggest that this is in the nature of a playground squabble. I question these people's commitment to Scotland's history and heritage if that is the attitude that they continue to take towards their registers. I have problems with the idea of creating a law to solve what it should be possible to solve through negotiation and discussion.
I absolutely take on board what you say. Since 2001, we have had negotiation and discussion. The longer I have been involved with the issue, the more I have realised that the best answer would be to have a public register. Preservation is the key—preservation of the cultural heritage element of tartan and the history of the different tartans. There are many different tartans and they are very important to Scotland's history but, unless we have a public register, the tartans will be lost.
Can I just clarify two or three things? Two of the three organisations would make their registers available to any register that was created by a bill. Is that correct?
It appears so.
Am I correct in saying that the third organisation would not make its information available?
It is worried about losing control of its register. I would have thought that, if a bill was passed, it would make its information available. An enormous amount of what is in its register is in the other registers anyway.
But there is no commitment or guarantee that it would make that information available.
No.
And there is no compulsion in the bill to make it do so.
No. There is no compulsion to make anyone hand anything over.
Okay. Are the two—possibly, three—organisations that would hand over their information to the register that would be created by the bill looking for financial compensation?
Financial compensation was mentioned but not, funnily enough, by them. It was mentioned in Falkirk Council's very supportive submission. Falkirk Council said that it would be more than happy to give a home to the register, but it also said that, if there was some difficulty, the matter could perhaps be sorted out by compensation. That is the only time that I have heard compensation mentioned.
To rephrase the question, have the two organisations that have said that they would make their information available to a register that was set up as a result of a bill definitely given a commitment that they would do so free of charge?
No, they have not given such a commitment, but James Scarlett said at the end of his submission that he could make available the information that he holds "under suitable conditions", although he has not yet been asked to do so. Keith Lumsden has made it clear that the STWR would be prepared to hand over its information, as well. Quite apart from that, there are certain valuable pieces of tartan memorabilia that they are longing to give to some kind of Scottish heritage register.
Is there a definition of "under suitable conditions"?
What do you mean?
You just said that one of the organisations would be prepared to hand over its information free of charge "under suitable conditions".
There is no such definition. You have got James Scarlett's submission, in which he talks about making available the information that he holds "under suitable conditions".
But there is no definition of what that means. It could mean that James Scarlett would not provide his information unless all three organisations handed over their information.
No. I do not think that he would be at all concerned about whether all three of them had to hand over their information. That is not a big worry as regards the creation of a national register.
Karen Gillon can ask a final question, if it is quick.
It is a technical question. Could the bill be amended to say that an archive should be held in the National Museums of Scotland?
I do not think that there would be any difficulty with incorporating that as part of the bill. Interestingly, the STA used to send a copy of its records to the National Museums every year, but it stopped doing that a number of years ago.
Our time has been exhausted. I thank Jamie McGrigor and his team for giving us additional evidence today, which has been illuminating.
Thank you. I thank members for their questions, which were useful.
No, today's meeting is your opportunity to have the last word. If we allowed that, the committee would have to meet in perpetuity because the Executive might want to respond to your response to its response. The answer to that is a very firm no. The system does not work like that.
I am told that the member in charge of a bill always goes last.
It was intended that that would happen today, but the Executive has not taken up its opportunity to appear before us, so the committee is free to conclude its report, if it so decides. That is what we will consider under item 5. If the committee decides to postpone consideration of its report so that we can take oral evidence from the Executive—which we had hoped to do today—as a member of the Parliament, you will have the opportunity to question the Executive. If you wanted to add—
I have to agree with Jamie McGrigor.
I have not finished. As a member, Jamie McGrigor would have the right to question the Executive and I would then give him the opportunity to respond to the Executive's evidence.
Thank you for that.
I clarify that it is up to the committee—not me—to decide whether it wants to give the Executive another opportunity to come in front of us. I understand that, given that it has already had such an opportunity, we are not obliged to do so. If the committee does not give the Executive another chance, or it does and the Executive decides not to take up the offer, as far as I am concerned, in such circumstances you would have had the last word.
I do not know what the rules are, but I am sure that that is right.
I think that it is fair.
Meeting continued in private until 17:11.
Previous
Petition