Harris Tweed Act 1993

Harris Tweed Act 1993 An Act to make provision for the establishment of a Harris Tweed Authority to promote and maintain the authenticity, standard and reputation of Harris Tweed; for the definition of Harris Tweed; for preventing the sale as Harris Tweed of material which does not fall within the definition; for the Authority to become the successor to The Harris Tweed Association Limited; and for other purposes incidental thereto. WHEREAS— The production of the handwoven tweed known as Harris Tweed provides the main source of work within the private sector in the Outer Hebrides and it is vital to the economy of those islands that the integrity, distinctive character and worldwide renown of Harris Tweed should be maintained: Tweed had been woven in the Outer Hebrides for centuries, but it was not until the nineteenth century that it became available to a wider market, and in 1909 The Harris Tweed Association Limited (hereinaftercalled “the Company”) was formed as a company limited by guarantee in order to promote, maintain and advertise the reputation and standard of quality of Harris Tweed: In the same year the Company registered the trade mark incorporating an orb surmounted by a Maltese cross which has come to symbolise Harris Tweed and one of its functions is to ensure that this mark is borne only by material which can genuinely be described, and which the Company has authenticated, as such: Changes were made in 1978 to the constitution of the Company but it has become clear that a private company is no longer a satisfactory body fully to safeguard the Harris Tweed industry and to secure for the future its goodwill and enterprise, and that the achievement of those objects requires the establishment of a statutory authority as successor to the Company, the enactment of provisions for the definition of Harris Tweed and the enactment of provisions which allow proceedings to be taken by the Authority and others against those who falsely represent material as being Harris Tweed: The Western Isles Islands Council (hereinafter called “the Council”) shares the desire of the Company that those objects should be achieved because, as the council for the local government area which comprises the Outer Hebrides, it has an interest in preserving and furthering the welfare and prospects of employment of the inhabitants: In relation to the promotion of the Bill for this Act the Western Isles Islands Council have complied with the requirements of section 82 of the Local Government (Scotland) Act 1973: It is expedient that such provisions should be enacted as are contained in this Act: The objects of this Act cannot be attained without the authority of Parliament: May it therefore please Your Majesty that it may be enacted, and be it enacted, by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— This Act may be cited as the Harris Tweed Act 1993. The provisions of this Act, other than those contained in this section, shall come into force at the end of the period of three months beginning with the date on which the Act is passed. This Act except section 10 thereof does not extend to Northern Ireland. In this Act unless the subject or the context otherwise requires— “the Act of 1938” means the Trade Marks Act 1938; “the Authority” means the Harris Tweed Authority constituted by Part II of this Act; “the Company” means The Harris Tweed Association Limited; “the Council” means the Western Isles Islands Council; “Harris Tweed” has the meaning assigned to it by section 7 of this Act; “Harris Tweed trade mark” means a mark registered, or deemed to have been registered, under any enactment for the purpose of distinguishing goods certified as being Harris Tweed from goods not so certified; “the Outer Hebrides” means the islands of Harris, Lewis, North Uist, Benbecula, South Uist and Barra and their several purtenances; “Registrar” means the Comptroller-General of Patents, Designs and Trade Marks; “the sheriff principal” means the sheriff principal for the time being of the sheriffdom of Grampian, Highland and Islands, or other the sheriffdom which for the time being includes the Outer Hebrides; references to the definition of Harris Tweed are to the definition which, for the purposes of this Act, has effect for the time being by virtue of sections 7 and 8 of this Act; references to a person involved in the Harris Tweed industry are references to any person who is engaged, or has any financial interest (other than merely as an investor holding not more than three per centum of the issued investments of any class in a public company), in— the supplying of wool to be used in the production of material falling within the definition of Harris Tweed; any of the processes (from dyeing and spinning onwards) involved in such production; the submission of material for authentication as Harris Tweed; any of the processes involved in the production of garments or other articles made wholly or partly from material falling within the definition of Harris Tweed; or the sale of such material or such articles. There shall be a body, having its seat in the Outer Hebrides in Scotland and known as the Harris Tweed Authority, charged with the general duty of furthering the Harris Tweed industry as a means of livelihood for those who live in the Outer Hebrides by safeguarding the standard and reputation of, promoting awareness in all parts of the world of, and disseminating information about, material falling within the definition of Harris Tweed and articles made from it; and charged to that end with particular duties, namely— a duty to consider and keep under review in respect of any Harris Tweed trade mark the desirability of applying for the alteration of regulations approved under the provisions of Schedule 1 to the Act of 1938 (or for the approval or alteration of any regulations replacing such regulations under any enactment replacing those provisions) so as to specify characteristics to be possessed by a tweed in addition to those set out in paragraph (a) of section 7 below for it to qualify as Harris Tweed; and a duty by means of proceedings taken under the provisions of Part IV of this Act and in any other appropriate ways, to take such steps as are practicable to ensure that material which does not comply with the definition of Harris Tweed is not represented as being Harris Tweed. The Schedule to this Act shall have effect with respect to the constitution and proceedings of, and other matters relating to, the Authority. The requirement in subsection (1) above that the Authority shall have its seat in the Outer Hebrides in Scotland is a requirement— that it shall maintain its official address there for the purpose of receiving notices or other communications; and that its central management and control shall be exercised there. The Authority may, subject to and in accordance with the provisions of this section, make charges for the use of a Harris Tweed trade mark. Charges made under this section shall be of such amounts as appear to the Authority to be necessary for meeting, or for establishing or maintaining a reserve fund to meet, the expenses of the Authority (outwith as well as within the United Kingdom) in authenticating material as Harris Tweed and in carrying out its other functions. The Authority shall notify the Registrar in writing of the amounts of charges it intends to make and the Registrar may, within one month of being so notified, reduce or disallow any such amounts if in his opinion they would be excessive. Upon the expiration of one month from the notification to the Registrar under subsection (3) above of the amounts of charges intended to be made, they shall, if not disallowed and subject to any reduction by the Registrar, come into force. If the Authority, in order to facilitate the use by any person of a Harris Tweed trade mark or other mark of which the Authority is the proprietor, supplies labels which incorporate the mark, it may make a charge (additional to those authorised under subsection (1) above) to cover the cost of the production and supply of the labels. The Authority shall keep available, for inspection and copying, at the premises which constitute its official address and at any other premises in the Outer Hebrides which are under its control, a notice of the amounts of charges in force for the time being under this section. In addition to any powers conferred elsewhere in this Act and without prejudice to any limitations imposed on those powers, the Authority may do anything, whether in the United Kingdom or in any other part of the world, which is calculated to facilitate or is incidental or conducive to the performance of the duties set out in section 3 of this Act and (without prejudice to the generality of the foregoing words) shall in particular have power— to publicise or join in publicising, through advertisements or otherwise, the nature, origin and qualities of material falling within the definition of Harris Tweed; to instigate or join in instigating, and to meet or contribute to the cost of, research into, and the provision and development of technology for use in or in connection with, the production of such material; to register and maintain in any part of the world intellectual property rights including patents, trade marks and other marks and designs, and to authorise the user of such intellectual property on such lawful terms and conditions as the Authority may think fit; to take or join in taking such steps, including legal proceedings, as may lawfully be taken in any jurisdiction in the world in order— to defend against infringement or likely infringement any intellectual property rights so registered and any other intellectual property; and to prevent, or put a stop to, any person selling, exposing or offering for sale or having in his possession for the purposes of sale— any material which is represented as Harris Tweed but is not Harris Tweed; or any garment or other article which is represented as made (wholly or partly) from material which is Harris Tweed when it has not been so made; to promote or establish, or to join in promoting or establishing, bodies corporate or unincorporate in any part of the world; to receive grants and to accept gifts of money or other property to be used in meeting its expenses or in furthering its objects or some one or more of them; to hold, acquire, take on lease, feu, sell, hire out, lease or otherwise dispose of immoveable or moveable property or any interest therein; to build, alter, improve and equip premises for its own occupation or use or for any other purpose connected with its functions under this Act; to act directly or through an attorney or other agent, or itself to act as agent for another person and, without prejudice thereto, to arrange for the discharge of any of its functions, and prescribe duties to be performed, by a committee or an employee upon such terms as it thinks fit and with respect to any function so delegated or duty so prescribed to delegate to the committee or employee such of its powers as are requisite for discharging the function or performing the duty; to borrow money and grant security over or pledge, mortgage or charge any of its property for the purpose of meeting the expenses incurred or to be incurred in discharging its functions under this Act; to establish and maintain a reserve fund for meeting such expenses; to invest any money comprised in the reserve fund, and any other money not required for immediate use, in or upon such investments, securities or property as it thinks fit; and to promote or otherwise seek, or to oppose, legislation in the United Kingdom or any other part of the world. It shall be the duty of the Authority— to keep proper accounts and proper records in relation to the accounts; and to prepare a statement of accounts in respect of each financial year. The statement of accounts shall give a true and fair view of the state of the Authority’s affairs at the end of the financial year and of its income and expenditure in that year. The accounts shall be audited by a person to be appointed in respect of each financial year by the Authority and the auditor shall be provided by the Authority with copies of the statement of accounts. The provisions of Part II of the Companies Act 1989 (which deal with the eligibility of persons for appointment as company auditors) shall apply in relation to the Authority as if the Authority were a company within the meaning of those provisions and as if a person appointed as auditor of the Authority were, within their meaning, a company auditor. When it receives the auditor’s report on its accounts for any financial year, the Authority shall send the Council copies of the accounts and of the report. In this section “financial year” means the 12 months ending with 31st December; but without prejudice to the Authority’s power subsequently to alter, if it sees fit, the date to which its financial year runs. In this Act “Harris Tweed” means a tweed which— has been handwoven by the islanders at their homes in the Outer Hebrides, finished in the Outer Hebrides, and made from pure virgin wool dyed and spun in the Outer Hebrides; and possesses such further characteristics as a material is required to possess under regulations from time to time in force under the provisions of Schedule 1 to the Act of 1938 (or under regulations from time to time in force under any enactment replacing those provisions) for it to qualify for the application to it, and use with respect to it, of a Harris Tweed trade mark. Regulations which prescribe additional requirements for the purposes of section 7 (b) above may include such transitional or other provisions as the Registrar or other appropriate officer may think fit concerning the application of the regulations to material which is already in the course of production and additional requirements shall not apply to material the production of which has, at the time when the application for the regulations which prescribe the additional requirements is advertised, already passed the stage at which it would be reasonably practicable to comply with them. Without prejudice to any other obligation to which it is subject, the Authority shall— do its best to ensure that any additional requirements become known, as soon as is reasonably practicable, to all those who to the Authority’s knowledge play a part (as suppliers of wool, dyers, spinners, weavers or finishers) in the production of material which falls, or has fallen, within the definition of Harris Tweed and whose part is such that the additional requirements in question are of concern to them; and place copies of the regulations which prescribe the additional requirements, as soon as practicable after they are made in the premises which constitute its official address and in any other premises in the Outer Hebrides which are under its control, and from then onwards (until the regulations cease to be in force) keep such copies available, for inspection and for copying, at all such premises. If the court is satisfied, on the application of— the Authority; a person involved in the Harris Tweed industry; or any person or body appearing to the court to be representative of the persons (or of any group of the persons) involved in the Harris Tweed industry, that any person is engaging, has engaged, or is likely to engage, in any conduct within subsection (2) below, the court may grant an injunction restraining or, in Scotland, an interdict prohibiting such conduct, and may make such further orders as it considers appropriate. A person engages in conduct within this subsection by selling, exposing or offering for sale, or having in his possession for the purposes of sale— any material which is represented as Harris Tweed; or any garment or other article which is represented as made (wholly or partly) from material which is Harris Tweed, if the material does not fall within the definition of Harris Tweed. The remedy made available by subsection (1) above in relation to conduct there mentioned is without prejudice to any other remedy which may be available, in the United Kingdom or any other part of the world, to any person by reason of such conduct. In this section “the court” means the Court of Session or a sheriff court in relation to Scotland and the High Court or a county court in relation to England and Wales. On the date on which this section comes into force (referred to in this section as the commencement date) all property, rights and liabilities to which the Company is entitled or subject immediately before that date shall vest in the Authority as the Company’s successor, and shall thenceforth be those of the Authority. References in this Act to property, rights and liabilities of the Company are references to all such property, rights and liabilities whether or not capable of being transferred or assigned by the Company. It is declared for the avoidance of doubt that— in subsection (1) above the reference to property is to property situated in the United Kingdom or in any other part of the world, and the references to rights and to liabilities are references to rights to which the Company is entitled, and to liabilities to which it is subject, under the law of the United Kingdom or of any part of it or under that of any other country or territory; and the rights and liabilities which become those of the Authority by virtue of subsection (1) above shall include rights and liabilities under contracts of employment with all those employed by the Company; and employment with the Company and the Authority under any such contract shall be deemed for all purposes to be a single continuing employment. On and after the commencement date the Authority shall be treated for all purposes of corporation tax, capital gains tax and value added tax as if it were the same person as the Company. Any agreement made, transaction effected or other thing done by, to or in relation to the Company which is in force or effective immediately before the commencement date shall have effect as if made, effected or done by, to or in relation to the Authority; and accordingly references to the Company— in any agreement (whether or not in writing) and in any deed, bond or instrument; in any process or document issued, prepared or employed for the purposes of any proceedings before any court or other tribunal or authority; and in any other document whatsoever relating to or affecting any property, right or liability of the Company which is transferred by this section, shall be taken as referring to the Authority. Any pension scheme maintained by the Company immediately before the commencement date shall be treated as a scheme established by the Authority under paragraph 11 (2) of the Schedule to this Act. The Company shall continue in existence notwithstanding the provisions of section 10 of this Act; and it shall be the duty of the Company and of the Authority to take, as and when the Authority considers appropriate, all such steps as may be requisite to secure that the vesting in the Authority as successor, by virtue of section 10 (1) of this Act or this section, of any foreign property, right or liability is effective under the relevant foreign law. Until such vesting as is mentioned in subsection (1) above is effective in foreign law, it shall be the duty of the Company to hold the property or right in question for the benefit of, or to discharge the liability on behalf of, the Authority. Nothing in subsections (1) and (2) above shall be taken as prejudicing the effect under the law of the United Kingdom or of any part of it of such vesting as is so mentioned. Any foreign property or right acquired, or any foreign liability incurred, by the Company after the coming into force of section 10 of this Act shall immediately become the property, right or liability of the Authority and the provisions of subsections (1) and (2) of this section shall apply to it as if it had been acquired or incurred by the Company before the coming into force of section 10 of this Act. The Company shall have all the powers it needs for the performance of its duties under this section, but it shall be the duty of the Authority to act on the Company’s behalf (so far as possible) in performing the duties imposed on the Company by this section. References in this section to any foreign property, right or liability are references to any property, right or liability as respects which any issue arising in any proceedings would have been determined (in accordance with the rules of private international law) by reference to the law of a country or territory outside the United Kingdom. Any expenses incurred by the Company under this section shall be met by the Authority. Nothing in this Act shall preclude the dissolution of the Company under the provisions of the Companies Act 1985. The Authority shall be a body corporate and shall be entitled but not bound to have a common seal. The Authority shall be a public body for the purposes of the Prevention of Corruption Acts 1889 to 1916. Subject to the provisions of this paragraph the members of the Authority shall be— not less than five nor more than eight persons appointed under this sub-paragraph by the sheriff principal, after such consultations as he may consider to be appropriate, from persons who appear to him to have knowledge or experience relevant to the discharge of the functions of the Authority; and two members of the Council appointed under this sub-paragraph by the Council. Neither the sheriff principal nor the Council shall appoint a person under sub-paragraph (1) above whom he or it believes to be a person involved in the Harris Tweed industry or to have an interest (whether or not financial) likely to affect prejudicially his performance as a member of the Authority. A person whom the sheriff principal or the Council is considering whether to appoint as a member of the Authority under paragraph 3 above shall if requested to do so by the sheriff principal or (as the case may be) by the Council, furnish the sheriff principal or the Council with such information as he or it may regard as necessary for the purposes of that consideration and unreasonable failure to furnish the sheriff principal or the Council with the information requested shall render the person ineligible for appointment. Subject to the provisions of this paragraph and of paragraphs 6, 8 (3) and 9 below, each member of the Authority appointed by the sheriff principal under paragraph 3 (1) (a) above— shall hold office for such period and in accordance with such conditions as shall be specified in a notice of appointment issued by the sheriff principal to that member; may, by written notice to the sheriff principal, resign his membership; and shall be eligible for reappointment as a member of the Authority at the expiry of the period of his appointment. The sheriff principal may remove from office any member appointed by him under paragraph 3 (1) (a) above if satisfied that— his estate has been sequestrated, or he has been adjudged bankrupt, or he has granted a trust deed for his creditors or entered into a composition contract, or he has made an arrangement with his creditors; he is incapacitated by physical or mental illness; he has been absent from three consecutive meetings of the Authority without the Authority’s permission; he has become ineligible for appointment on either of the grounds mentioned in paragraph 3 (2) above; or he is otherwise unable or unfit to discharge his functions as a member or is unsuitable to continue as a member. Each member of the Authority appointed by the Council under paragraph 3 (1) (b) above— shall cease to hold office when he retires at the end of his term of office as a councillor under the provisions of section 4 (3) of the Local Government (Scotland) Act 1973 or otherwise ceases to be a councillor unless, in the case of a councillor retiring on the day of the ordinary election of councillors, he is re-elected as a councillor at that election; may, by written notice to the Council, resign his membership of the Authority; and shall cease to hold office if at any time the Council chooses under paragraph 3 (1) (b) above to appoint another of its members to be a member of the Authority in his stead. The members of the Authority shall elect from among their number a chairman and a vice chairman or vice chairmen who, subject to the provisions of sub-paragraph (3) below, shall hold office for such period or periods as the Authority shall determine when they are elected. Upon the expiration of his term of office every chairman and vice chairman of the Authority shall, subject to the provisions of sub-paragraph (3) below, be eligible for re-election. A member who holds the office of chairman or vice chairman may resign from it by written notice to the Authority and shall cease to hold such office upon his ceasing for any reason to be a member of the Authority. No member of the Authority, whether or not he also holds office as chairman or vice chairman, shall receive remuneration for acting as such, but any expenses reasonably incurred by a member in so acting (including any expenses reasonably incurred by a chairman or vice chairman in acting in that capacity) shall be met by the Authority. The Authority may appoint its first chief executive, and make subsequent appointments to that office, on such terms as it may determine. The Authority may appoint, on such terms as it may determine, such other employees (including, if it so desires, a secretary) as it thinks fit. The Authority may make such arrangements for the provision of pensions, allowances or gratuities for any one or more of its employees (including the chief executive) as it may determine; and such arrangements may include the establishment and administration, by the Authority or otherwise, of one or more pension schemes. The reference in sub-paragraph (2) above to the provision of pensions, allowances or gratuities includes a reference to their provision by way of compensation for loss of office or employment or loss or diminution of emoluments. The quorum for meetings of the Authority shall be such number not being less than three as the Authority may determine. If at any meeting the votes are equally divided on any question, the person acting as chairman of the meeting shall have a second or casting vote. Minutes shall be kept of each meeting of the Authority and shall, if signed by any person purporting to have acted as chairman of the meeting, or of a subsequent meeting at which they were read or to which they were presented, be evidence of the proceedings at the first mentioned meeting; and a meeting to which any such minutes relate shall, unless the contrary is shown, be taken to have been regularly convened and constituted. A member of the Authority who is directly or indirectly interested in— a contract made or proposed to be made by it; or any other matter which falls to be considered by it, shall as soon as is practicable disclose the nature of his interest at a meeting of the Authority; and the disclosure shall be recorded in the minutes of the meeting. In a case falling within head (a) in sub-paragraph (1) above, the member shall not take part in any deliberation or decision of the Authority with respect to the contract; and in a case within head (b) the member shall not take part in any deliberation or decision of the Authority with respect to the matter if the Authority decides that the interest in question might prejudicially affect his consideration of it. For the purposes of this paragraph, a notice to the effect that a person— is a member of a specified body corporate or firm, or is in the employment of a specified body corporate, firm or individual; and is to be regarded as interested in any contract made with that body, firm or individual after the date of the notice, and in any other matter concerning that body, firm or individual which falls to be considered after that date, shall, if given at a meeting of the Authority, be a sufficient disclosure of his interest. For the purposes of sub-paragraph (1) above a member shall be treated as disclosing an interest at a meeting, and for those of sub-paragraph (3) above shall be treated as giving notice at a meeting, if, although he himself does not attend the meeting, he takes reasonable steps to ensure that the disclosure is made, or the notice given, at the meeting. The validity of any proceedings of the Authority shall not be affected by any vacancy among its members, by any defect in the appointment of a member or by any failure to comply with any requirement of paragraph 15 above. Subject to paragraphs 12 to 15 above, the Authority may make such arrangements for its meetings, and generally may regulate its own procedure, as it thinks fit. The Authority may appoint committees of its members and may determine the quorum and procedure of any such committees. This paragraph has effect in relation to the execution of any document by the Authority under the law of Scotland. For any purpose other than those mentioned in sub-paragraph (3) below, a document is validly executed by the Authority if it is signed on behalf of the Authority by a member or by the chief executive or by a person authorised to sign the document on its behalf. For the purposes of any enactment or rule of law relating to the authentication of documents under the law of Scotland, a document is validly executed by the Authority if it is subscribed on behalf of the Authority by two of its members, or by one of its members and the chief executive, notwithstanding that such subscription is not attested by witnesses and the document is not sealed with the Authority’s common seal (if it has a common seal). A document which bears to be executed by the Authority in accordance with sub-paragraph (3) above is, in relation to such execution, a probative document. Sub-paragraphs (2) and (3) above are without prejudice to any other method of execution of documents available to the Authority under any other enactment or rule of law. Under the law of England and Wales a contract may be made— by the Authority, if it has a common seal, by writing under that seal; or on behalf of the Authority, by any person acting under its authority, express or implied, and any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of the Authority. The remaining provisions of this paragraph have effect with respect to the execution of documents by the Authority under the law of England and Wales. A document is validly executed by the Authority if— the Authority has a common seal and that seal is affixed to the document; or whether or not the Authority has a common seal, the document is signed by two of its members, or by one of its members and the chief executive, and expressed (in whatever form of words) to be executed by the Authority. A document executed by the Authority which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed. In favour of a purchaser a document shall be deemed to have been duly executed by the Authority if (whether or not a seal purporting to be that of the Authority has been affixed to it) it purports to be signed by two members of the Authority, or by one member and the chief executive, and, where it makes it clear on its face that it is intended by the person or persons making it to be a deed, to have been delivered upon its being executed. A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property. 1973 c. 65. 1938 c. 22. 1989 c. 40. 1985 c. 6.