McGILL LAW JOURNAL
[Vol. 24
Cultural Sovereignty in the U.K.
A Glance Ahead
As many will have heard, the United Kingdom, after experiment-
ing with unitary government for 200 years or thereabout, is on
the verge of adopting a system of divided powers of the kind with
which Canadians are familiar. A bill to confer legislative powers
on Scotland has been passed but it will clearly not satisfy the
aspirations of the separatist movement. The radical wing deny
that they wish to repeal the Act of Union or to break up the United
Kingdom. But they are for a new constitutional relationship with
Westminster for which there is no exact name. Some call it “Sover-
eign Dependency” –
others say “Conjoint Non-Association”. The
Party’s constitutional experts are said by some usually reliable
sources to have been taking a look at federal government in the
Commonwealth countries and to have come up with a plan for a
more effective division of power. Under it, the United Kingdom
Parliament would retain some general powers such as the making
of federal grants-in-aid, the upkeep of royal palaces and the mana-
gement of Portsmouth Dockyard. But major powers would be
allocated to the provincial legislature, such as:
1. Property and Civil Rights in Scotland.
2. Cultural and Culinary Matters.
3. The Borrowing of Money.
4. Saloons, Taverns and Asylums.
5. Hogmanay.
6. The Amendment from Time to Time of the Constitution of
Scotland (except as regards (5) above).
Meanwhile details are beginning to leak out of the first legisla-
tive measure to be placed by the Nationalists before the Edinburgh
Parliament at its opening session. The proposals are designed to
place the nation’s cultural sovereignty on a firm base. The draft
of Bill 1 of 1979 is a closely guarded secret and is revealed here for
the first time.
The Bill, to be entitled The Official Garment Act, recognises
certain fundamental rights and duties of the inhabitants of Scotland
in relation to what has been widely recognised as the national dress
by which Scotsmen the world over are seen for what they are. In
19791
COMMENTS – COMMENTAIRES
recent years, it is feared, increased social mobility and the shifting
patterns of immigration have threatened its survival. Its use in
the schools has diminished, and amongst Scottish youth nether
garments of a different shape and of primarily English design have
acquired an easy attractiveness, seen as they constantly are on
television programs originating in the south. The Bill is designed
to remedy this situation. “The Kilt” as the Preamble puts it, “is the
distinctive accoutrement of a people that is traditionally kilt-wear-
ing and is the garment in which that people has articulated its
identity”.
The Bill’s provisions cover a wide range of things both public
and private. In the opening sections, it is declared that “the Kilt is
the garment of the Legislature and the Courts”. A Bill passed by
unkilted legislators would, in the light of this provision almost
certainly be invalid, although it may be that some latitude will be
permitted at the Committee stage in the colder rooms upstairs. The
Queen is of course a part of the legislature but it is unclear whether
the general regulation of nether garments will be applicable to the
Crown.
In the civil service, the kilt is to be universally adopted except
in cases where other dress is required “for reasons of public health
or safety”. This provision will certainly involve delicate consti-
tutional and sartorial problems, as indeed will all the other pro-
visions.
Perhaps the most contentious aspects of the legislation are in
its application to newcomers and immigrants, many of whom have
never seen a kilt and also in the regulation of private businesses
where the application of the rules to artificial persons and corpor-
ations will raise difficulties. Many directors and employees have
become accustomed to conducting their affairs unkilted. In many
trades, trousers have become almost universal. Coal mining and
deep sea fishing provide only two examples. Nevertheless, a general
program of enkiltment is envisaged by the Bill. In the short run,
some exceptions to the general obligation will be made. A profes-
sional person working in a position that does not involve his
dealing with the general public will be allowed to wear trousers.
Otherwise, he will have to take them off. The Labour Code pro-
visions of the Bill clearly prohibit employers from making the
wearing of trousers a condition of employment or dismissing
workers who remove them. The wearing of trousers underneath
kilts is not in terms prohibited but it may well be forbidden by
the Commission of Scrutiny (the Clothes Board) set up by the
McGILL LAW JOURNAL
[Vol. 24
Act and the Board’s Garment Police and Limb Inspectors will keep
a sharp eye open for it. The latter will also of course make sure
that nothing else is worn underneath the kilt.
The sale of trousers will, it is foreseen, be closely regulated by
a system of licensing. Section 54 of the draft Bill provides that two
kilts must be sold for every pair of trousers and neither leg must
exceed the kilt length in any event.
The Bill, it must be conceded, does not deal entirely in sanctions
and enforcement. A research office. and a number of associated
committees are to be set up. Together they will conduct research
in kilt-wearing and the committees will make lists of well known
kilt-wearers, draw pictures of kilts and generally promote kiltic
studies in their areas.
The implementation of the charter may well be of doubtful
constitutionality until the major independence legislation has re-
ceived parliamentary approval sometime in 1978. A referendum
on the issue is proposed but who will vote and on what question is
as yet unresolved. The nationalist preference is for a single com-
prehensive question that will clearly resolve the issues at stake.
Rumour has it that the proposed query placed on the ballot will
be ‘Scots wha hae. Di ye ken?’ and no English translation will be
supplied.
Geoffrey Marshall*
*Visiting Professor of Law, McGill University; Fellow of the Queen’s
College, Oxford.
