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Mander Organs

Defending The Pipe Organ


Colin Harvey

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In addition to all this, European legislation has to be interpreted in the European or continental fashion. ... Thus whereas in the past English judges have held that a piece of legislation did not succeed in doing what it was known that those who put it through Parliament intended it to do, it is far more difficult, if not impossible, for that situation to arrise when the continental approach to interpretation applies.
I'm just wondering how these two different approaches are reconciled in the case of directives. If I understood your earlier advice correctly, a European directive has no legal force in itself, but is effectively a command to member states to pass legislation that puts its requirements into effect. If that's right, would the interpretation of the statutory instrument in an English court take precdence over the interpretation of the directive in a European one?
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I'm just wondering how these two different approaches are reconciled in the case of directives. If I understood your earlier advice correctly, a European directive has no legal force in itself, but is effectively a command to member states to pass legislation that puts its requirements into effect. If that's right, would the interpretation of the statutory instrument in an English court take precdence over the interpretation of the directive in a European one?

 

Hi,

 

I am not really an EU law expert but what I do know is that EU law always takes precedence over domestic law in those areas in which EU law is engaged. Thus although directives do not operate directly, member states are expected to implement them CORRECTLY, and the EU Commission can take enforcement procceedings against a State if it is considered that it has failed to implement a Directive properly.

 

Because this is the situation, an English judge will do everything possible to interpret the implementing statutory instrument so that it complies with the demands of the Directive, and only not do so when this is completely impossible.

But this would be a rather unusual situation, so I think one should probably see the situation as being that the European interpretation of the directive will always prevail in the end, but that there may be hiccups on the way to it doing so, especially in this country where the convention is that the courts defer to the superior authority of parliament. Although this convention seems less strong in the era of the Human Rights Act than it was when I was a student when there were effectively no exceptions to it at all!

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Hi,

 

I am not really an EU law expert but what I do know is that EU law always takes precedence over domestic law in those areas in which EU law is engaged. Thus although directives do not operate directly, member states are expected to implement them CORRECTLY, and the EU Commission can take enforcement procceedings against a State if it is considered that it has failed to implement a Directive properly.

 

Because this is the situation, an English judge will do everything possible to interpret the implementing statutory instrument so that it complies with the demands of the Directive, and only not do so when this is completely impossible.

But this would be a rather unusual situation, so I think one should probably see the situation as being that the European interpretation of the directive will always prevail in the end, but that there may be hiccups on the way to it doing so, especially in this country where the convention is that the courts defer to the superior authority of parliament. Although this convention seems less strong in the era of the Human Rights Act than it was when I was a student when there were effectively no exceptions to it at all!

 

=================

 

So the problem really is one of "interpretation" rather than one of defective EU law, presumably?

 

The problem seems to be, at the very minimum, two-fold. I think almost everyone would agree that there is not a problem with the intention of the EU law concerning the use of hazardous materials and dumping of toxic waste; espeically that which is proliferating in electronic circuit-boards and suchlike.

 

That is the easy bit to interpret.

 

It seems to me that the problem rests fairly and squarely with the DTI, who's interpretation appears to go further than that first intended, which is what we thought quite early on.

 

However, the issue has been clouded a little by interpretation within the EU itself, because certain people "over there" have suggested that new organs do indeed come within the scope of the directives.

 

However, the "level playing field" approach is certainly one which is very positive, and if the directives are to implemented fairly across all member states, then either the public-funding of new organs is illegal or it isn't. There are not degrees of compliance, which is precisely why EU law takes precedence over each individual member-state "interpreting" things to their own advantage.

 

This encourages me a great deal, because the exceptions may yet prove the rule, if only as a matter of expediency and in order to save politicians from red-faces.

Of course, it also raises the interesting situation, where the building of a new organ may be interpreted as illegal by, for instance, the DTI and UK parliament, but perfectly legal in other countries. That sets all sorts of wheels in motion, and also hands a defence on a plate to any organ-buidler who ignores the directives, on the basis that the EU itself has broken its own laws.

 

The good thing about this situation is the fact that any sort of prosecution is extremely unlikely if, for example, the new organ for Worcester Cathedral (or anywhere else) is completed and someone cares to object on legal or ecological grounds.

 

This is exactly the tac I have taken with my MEP's, but thus far, even though I've had a reply from the Vice President of the EU, the perceived position is that of claiming derogation, rather than of actually clarifying the law by way of emergency debate or definitive interpretation at EU level, which may hopefully lift the organ out of the scope of the directives.

 

Of course, it's one thing to threaten further action to an MEP, but quite a different thing to bring that about as a solitary individual, but I expect one would have to cross that bridge as and when it becomes necessary.

 

MM

 

MM

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Yes. If EU directives take precedence over national law, then surely the solution is to get Brussels to grant a derogation establishing once and for all that the directives do not apply to pipe organs. The DTI would then have no option but to toe the line.

 

So we should be lobbying MEPs and the DTI to persuade Brussels to grant this.

 

Or am I being too simplistic?

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Yes. If EU directives take precedence over national law, then surely the solution is to get Brussels to grant a derogation establishing once and for all that the directives do not apply to pipe organs. The DTI would then have no option but to toe the line.

 

So we should be lobbying MEPs and the DTI to persuade Brussels to grant this.

 

Or am I being too simplistic?

 

We are now entering unknown territory as far as I am concerned, after all this whole area of Law did not exist when I was a student: we did classical Roman law and the Institutes of Justinian: important things like how to manumit (= grant freedom to) a slave in the time of Gaius or Ulpian. However, deducing consequences from known facts and trying to edge forward it is possible that a derogation has to be applied for, and the application would have to be made by the party seeking the derogation which would be the relevant State. The regrettable consequence of this very tentative view being even partially right would be to put the initiative firmly back in the hands of the UK government.

 

 

Surely there must be someone somewhere who knows something about the present structures of the EU and has in an interest in the organ. Perhaps we should advertise ?

 

BAC

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We are now entering unknown territory as far as I am concerned, after all this whole area of Law did not exist when I was a student: we did classical Roman law and the Institutes of Justinian: important things like how to manumit (= grant freedom to) a slave in the time of Gaius or Ulpian. However, deducing consequences from known facts and trying to edge forward it is possible that a derogation has to be applied for, and the application would have to be made by the party seeking the derogation which would be the relevant State. The regrettable consequence of this very tentative view being even partially right would be to put the initiative firmly back in the hands of the UK government.

Surely there must be someone somewhere who knows something about the present structures of the EU and has in an interest in the organ. Perhaps we should advertise ?

 

 

==================

 

I suspect that this explains the words of the e-mail I received from Edward McMillan-Scott MEP, the Vice President of the European Parliament, who assured me that Caroline Jackson MP, has written formally to the Secretary of State for Trade & Industry; asking for specific clarification of the exact status concerning the inclusion, or otherwise, of the organ as within the scope of the RoHS and WEEE directives, and whether, if the organ is to be included, a derogation has been applied for.

 

That IS the machinery of the EU, I suspect, and that machinery is now moving.

 

The fact that Edward MacMilland-Scott is a Conervative and high-profile in Brussels and the EU parliaent, may just persuade the Trade Secretary and the DTI into galvanised action, but I shan't be holding my breath in the meantime.

 

Of course, we must not overlook the fact that parliement is currently in recess, and it is almost Easter. The poor creatures must be getting tired and in need of a holiday, but I anticipate that they will return full of creative vigour in due course.

 

Ah! Look how the elephants fly!

 

MM

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I'm a member of the IEE, and I received a circular recently:

 

********

"Burdened by red tape?" - then read on:

 

A review has been set up by the Cabinet Office to identify unnecessary burdens created by over-implementation, and is calling for business and other sectors to come forward with instances of 'gold plating', 'double banking' and 'regulatory creep'.

Further details about the scope and timing of the review can be found at http://www.cabinetoffice.gov.uk/regulation/davidson_review/

...

Please send your responses directly to

mailto:BRE-Davidson.Review@cabinet-office.x.gsi.gov.uk by 25 May 2006.

...

*********

Looks like another avenue that can be approached here.

I sent an e-mail containing the following:

*********

Avoiding [these issues] could be done very simply.

Firstly, by a simple exclusion of pipe metal from the RoHS Directive, in view of the functional nature of lead in this application, both in view of its malleability and the effect of the high density metal on the sound produced by the pipe. Clearly, pipe manufacturers need to demonstrate that reasonable precautions are taken in regard to the health and safety of their employees, but this is their responsibility under existing Health and Safety legislation.

 

Secondly, by the common sense restriction of the UK implementation of the WEEE Directive to the electrical and electronic parts of the organ (for example, the blower, and some organs have electrical key action or combination stop selection mechanisms). This restriction is easily justified by the re-use of pipe metal, which has been a tradition for centuries. Also, any reasonable interpretation of the function of pipe metal would recognise that an organ pipe is a mechanical component, rather than being electrical or electronic.

***********

Wish I had time to adjust the almost-ciphering Bflat on my Great 15th... and learn some new repertoire...

Happy playing one and all

Ian Campbell-Kelly

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I saw the following letter to the editor in The Times this morning (10 Apr):

 

Protecting organs

 

From the Trade and Industry Minister

 

Sir, When the Department of Trade and Industry met representatives of the Institute of British Organ Building on March 28 (letter, Apr 7) my officials did not say that pipe organs definitely fall within the scope of the EU Restriction of Hazardous Substances Directive, but that they could, in principle, do so.

 

My officials have recommended from the outset that the pipe organ industry seek an exemption to get the legal certainty they seek and we have offered to work with them to submit an exemption request.

 

MALCOLM WICKS

London SW1

(Acknowledging the Times's rights on this)

 

I trust that the legal exemption mentioned is not the tempory measure the IBO see as a rather unattractive impermanent measure but I hope that the IBO and DTI are working together well to clarify the issue.

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I trust that the legal exemption mentioned is not the tempory measure the IBO see as a rather unattractive impermanent measure
Tha's the crux of it, isn't it? I hope there is a difference between an exemption and a derogation, that the DTI know the difference and that they are working towards the latter. It would be nice to have a bit of clarification from the IBO on this.
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I saw the following letter to the editor in The Times this morning (10 Apr):

(Acknowledging the Times's rights on this)

 

I trust that the legal exemption mentioned is not the tempory measure the IBO see as a rather unattractive impermanent measure but I hope that the IBO and DTI are working together well to clarify the issue.

 

=========================

 

Well, here we go on the merry-go-round again; everyone in authority trying the pass the blameto someone else.

 

The DTI statement seems to ignore the fact that they were contacted some years ago by the IBO about the potential problem, but they have not entered into any sort of dialogue or sought any sort of clarification.

 

Instead, the matter was ignored until it re-surfaced again late in 2005, thus presenting organ-builders with a problem which should never have arisen. In other words, the DTI have proved to be sloppy and ineffectual.

 

It's a bit rich, at this late stage, to suggest that the IOB can NOW apply for an exemption, even though the DTI are "not sure" whether the WEEE and RoHS directive actually apply.

 

It's curious, but in responding to a letter in "The Times," they conveniently by-pass any mention of the term "derogation," which they have formally been asked about by their peers.

 

It raises some very interesting questions about the arrogance of politicians, the abilities of civil-servants and about the nature of UK democracy, that Mr Wicks MP should now seek to hide the facts and bend the truth.

 

I would suggest that this is not an EU problem at all, but one much closer to home.

 

MM

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  • 2 weeks later...

I have to-day received a reply to one of my letters to MEP's; the text of which is as follows:-

 

 

 

Dear (MM)

 

Thank you for your email regarding 'lead in pipe organs'. I have had a

number of emails from constituents on this issue but you are the first

to raise the specific issue of the statement of the Minister, and the

apparent contradiction of the two cases that you cite.

 

I will table a Parliamentary Question to the Commission on this matter

and let you have a copy of any reply I receive.

 

Best wishes,

 

Richard Corbett MEP

Labour Member of the European Parliament for Yorkshire and the Humber

 

===============

 

 

(The "apparent contradiction" is the public funding of new organs within the EU)

 

 

MM

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A thought has just occurred to me. It seems that, as usual, the UK is going to abide by the letter of the law, while the continental countries may well choose to ignore it. So what's the situation regarding imported parts? Is it is going to be illegal for the UK to import and use pipes made abroad as well as to manufacture them here? If not, then British churches are going to be able to commission new organs from foreign builders, but not from our own. That would be doubly ludicrous.

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My MP has just sent me a letter from Malcolm Wicks which reiterates some of the usual things (repair and refurbishment is OK, organs not reliant on electricity are OK). However, he doesn't just spout the exemption thing. Instead he writes:

Whilst the scope of the RoHS Directive is very broad, the European Commission has already begun to investigate whether, and if so to what extent, pipe organs are covered.
and only then (my italics):
If the Commission decides that some pipe organs are included in the scope, a formal application for an exemption [... etc, as usual]

This suggests that they have become less confident of their own interpretation of the directive.

 

Paul

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A thought has just occurred to me. It seems that, as usual, the UK is going to abide by the letter of the law, while the continental countries may well choose to ignore it. So what's the situation regarding imported parts? Is it is going to be illegal for the UK to import and use pipes made abroad as well as to manufacture them here? If not, then British churches are going to be able to commission new organs from foreign builders, but not from our own. That would be doubly ludicrous.

 

=====================

 

I suspect that any manufacturer of any end-product, who KNOWINGLY imported either whole-organs or parts of organs which contravened the directives, would be guilty of an offence.

 

It doesn't matter if the asbestos drain-pipes come from Mongolia, if they are to be installed under UK building regulations.

 

I think Brian Childs made the very useful point that EU law is different to UK law, in so much as it concentrates on "intent" rather than the usual UK way of doing law, which is to nitpick in the courts and find loop-holes.

 

I suspect that everyone understands what is INTENDED by the directives in mainland Europe, and consequently, they possibly do not see it as relevant to the building of new pipe-organs.

 

This is exactly why I challenged our MP's and MEP's to explain the dichotomy in interpretation, which permits the public funding of new organs in Europe, when the DTI and others in the UK, regard the directive as being applicable to the building of new organs.

 

What I set out to do was to establish the existence of a classic double-bind, as it applies to UK interpretation, because even in glorious technicolour, the matter is not quite black & white. If people want to absolutely specific, then it becomes a PRIORITY that UK legislators go back to the EU for clarification, or they are guilty of permitting inconsistent (and even punative) trading conditions to apply in one member country only.

 

They now know only too well, that to include the organ in the UK interpretation of the directives, as they stand, would be to immediately open up the possibility of protracted arguments and complaints to the EU; which is exactly what I have threatened to do.

 

As I stated early on, the neatest trick is to demonstrate that, in the event that the UK decide that the directives embrace new organ-building, then those responsible for the use of public-funding in relation to NEW organs elsewhere in Europe, are engaging in criminal acts.

 

If the EU decide that they are NOT acting illegally, then we have our answer.

 

If they decide that they ARE acting illegally, then in order to protect the position of EU officials and public-servants, they would have to change to scope of the directives fairly pronto.

 

The beautiful thing about this approach, is that no organ-builder or organ-building institute need do a thing about claiming exemptions to the directives, because the politicians are already disregarding them, and should anyone threaten legal-action ANYWHERE in Europe, then the bulk of a near-perfect defence would be to quote the cases where public servants and politicians within the EU have acted similarly, and therefore mislead others into doing the same.

 

I personally have absolute confidence that this matter will be resolved quite quickly, and the EU will either change the scope of the directives or announce a suitable derogation by means of a quick vote in the EU parliament.

 

It should be interesting, but in the meantime, I suspect that no organ-builder or pipe-maker need fear anything as they "fill all the churches with as many organ pipes as they wish."

 

MM

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What I set out to do was to establish the existence of a classic double-bind, as it applies to UK interpretation, because even in glorious technicolour, the matter is not quite black & white. If people want to absolutely specific, then it becomes a PRIORITY that UK legislators go back to the EU for clarification, or they are guilty of permitting inconsistent (and even punative) trading conditions to apply in one member country only.

Tailor-made for this, I would think: http://www.cabinetoffice.gov.uk/regulation/davidson_review/

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Guest Barry Oakley

An extract of a communication I received from Liz Lynne, the Liberal Democrat MEP for the West Midlands, reads:

 

"...But Margot Wallstrom, Vice President of the European Commission, has told MEP's that there is no threat to church organs.

 

"She told the European Parliament, 'You can rest absolutely assured that the directive does not cover church organ pipes.'

 

"Criticising the recent spate of media scare stories, the Commissioner urged MEP's to 'just make sure that now and then the poor people of the UK hear the truth, as they rarely receive correct information.'

 

"Liz Lynne, who has been working on this issue on behalf of several constituents, today said, 'Once again measures which are intended to protect human health and safeguard the environment have been twisted and distorted'.'

 

"Eurosceptics should pipe down and stop bellowing such ill-informed nonsense."

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=====================

 

I suspect that any manufacturer of any end-product, who KNOWINGLY imported either whole-organs or parts of organs which contravened the directives, would be guilty of an offence.

 

It doesn't matter if the asbestos drain-pipes come from Mongolia, if they are to be installed under UK building regulations.

 

I

 

I think that your analysis has to be right and is the "least worst" position in that at least you contemplate people knowingly contravening the rules. But much law of this sort is based on the prohibited act having been done rather than the offender knowing they are offending, ie if you supply an article which does not comply the offence is complete even though you were totally unaware of the fact that it did not comply . However, the language of regulation 7 quoted below (contravention of which is one of the offences created by the regulations) might be enough to require knowledge for a conviction.

 

7. A producer shall ensure that new electrical and electronic equipment put on the market on or after 1st July 2006 does not contain hazardous substances.

 

 

Producer is defined as either the manufacturer

 

OR the person who puts their own brand on goods produced for them by others (unless the brand of the actual producer is present) [ this category is usually called own branders and its commonest application is to supermarkets' own brand goods, eg M & S Baked Beans]

 

OR the person who imports the goods into the EU (extended to include the non EU EFTA countries as well) from any place outside that geographical area/ grouping of states.

 

Thus any producer of organs based within the EU will be caught by the directive by being present in a member state to which it applies. While producers located outside the EU area are not directly effected, the person who imports what they produce IS, thus external producers must also comply if they wish to be able to market freely in the EU area without the person to whom they sell being guilty of an offence.

 

The obligation to ensure that goods comply obviously connotes active steps being taken and enquiries made, so lack of knowledge would be a fairly difficult thing to show in practice: effectively confined to the situation where a supplier tells lies which it is reasonable to believe represent the truth and with no need for further enquiry or checking.

 

Hope this explanation makes sense.

 

BAC

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I think that your analysis has to be right and is the "least worst" position in that at least you contemplate people knowingly contravening the rules. But much law of this sort is based on the prohibited act having been done rather than the offender knowing they are offending, ie if you supply an article which does not comply the offence is complete even though you were totally unaware of the fact that it did not comply . However, the language of regulation 7 quoted below (contravention of which is one of the offences created by the regulations) might be enough to require knowledge for a conviction.

 

7. A producer shall ensure that new electrical and electronic equipment put on the market on or after 1st July 2006 does not contain hazardous substances.

Producer is defined as either the manufacturer

 

OR the person who puts their own brand on goods produced for them by others (unless the brand of the actual producer  is present) [ this category is  usually called own branders and its commonest application is to supermarkets' own brand goods, eg M & S Baked Beans]

 

OR the person who imports the goods into the EU (extended to include  the non EU EFTA countries as well) from any place outside that  geographical area/ grouping of states.

 

Thus any producer of organs based within the EU will be caught by the directive by being present in a member state to which it applies. While produceres located outside the EU area are not directly effected, the person who imports what they produce IS, thus they too must comply if they wish to be able to market freely in the EU area without the person to whom they sell being guilty of an offence.

 

The obligation to ensure that goods comply obviously connotes active steps being taken and enquiries made, so lack of knowledge would be a fairly difficult thing to show in practice: effectively confined to the situation where a supplier tells lies which it is reasonable to believe represent the truth and with no need for further enquiry or checking.

 

Hope this explanation makes sense.

 

BAC

 

 

The first test case could be the new organ by the Danish builder, Carsten Lund, for the chapel of Trinity hall, Cambridge, which I saw in his workshop last week and which is due for installation after July 1. For the record Mr Lund confessed to knowing nothing about the new EU regulations!

 

On verra

 

JS

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The first test case could be the new organ by the Danish builder, Carsten Lund, for the chapel of Trinity hall, Cambridge, which I saw in his workshop last week and which is due for installation after July 1.  For the record Mr Lund confessed to knowing nothing about the new EU regulations!

 

On verra

 

JS

 

=======================

 

 

I think we should celebrate this with a piece of music!

 

Didn't Rossini write his "sins of my old age" where he set out to break as many musical rules as possible?

 

Wonderful music, incidentally!

 

All we need is a title.....something like "The behind bars blues" or "Criminal Concerto".

 

Any suggestions?

 

B)

 

MM

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An extract of a communication I received from Liz Lynne, the Liberal Democrat MEP for the West Midlands, reads:

 

"...But Margot Wallstrom, Vice President of the European Commission, has told MEP's that there is no threat to church organs.

 

"She told the European Parliament, 'You can rest absolutely assured that the directive does not cover church organ pipes.'

 

"Criticising the recent spate of media scare stories, the Commissioner urged MEP's to 'just make sure that now and then the poor people of the UK hear the truth, as they rarely receive correct information.'

 

"Liz Lynne, who has been working on this issue on behalf of several constituents, today said, 'Once again measures which are intended to protect human health and safeguard the environment have been twisted and distorted'.'

 

"Eurosceptics should pipe down and stop bellowing such ill-informed nonsense."

 

==============

 

Unfortunately Barry, this is not the definitive reply it may appear to be. For a start, Commissioner Wallstrom only referred to "repair" and "restorations" if I recall correctly, and others in the DTI have subsequently let it be known that the organ-building trade "should be prepared to see NEW organs coming within the scope of the directive."

 

Liz Lynne is obviously the female equivalent of the tin-man (rather appropriately),

for the distortion and twisting has come from EU and UK officials, who have known about the problem for years, but have chosen not to address it.

 

It has a name, and it's called incompetence.

 

MM

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Well, when one speaks about "100% tin", think rather of 98% tin and 2% lead,

which does not solve our problem. Actual 100% tin is not practicable.

As for Zinc, it has been very rarely used above 2' and may therefore be

usefull in the basses only.

I do not know exactly the "state of the Zinc question" in the United Kingdom

in 2006, but on the continent it is near to desperating.

Excellent Zinc pipes are still often a case for the binn. Zinc= bad!

We are only a little circle appreciating the Zinc's advantages, especially

for late and post-romantic designs with many foundation stops.

 

Best wishes,

Pierre

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A really dumb question. I think I know the answer to this, but I'm vague about it, so I'd welcome comments. You can make pipes of 100% tin and 100% zinc, can't you? So what's the problem (apart from expense)?

 

=====================

 

 

Other materials include copper (difficult to work).

 

Brass (even more difficult to work and solder) as used for the resonators of the 32ft reed at Blackburn Cathedral, on many Fair Organs, cinema-organs and many an American party-horn.

 

There's the solid-silver Trompet Argentia at Ampleforth Abbey, which I think is unique in the world.

 

Ivory was used by Gabler at Weingarten.

 

My brother may know a way of producing metal sheet alloys from sintered powder technology. He has been working on a new type of steel which is potentially 40% lighter and 50% stronger.

 

The great thing about tin/lead, is the ease with which it can be worked and soldered; all the alternatives being much more difficult.

 

MM

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A really dumb question. I think I know the answer to this, but I'm vague about it, so I'd welcome comments. You can make pipes of 100% tin and 100% zinc, can't you? So what's the problem (apart from expense)?

 

 

No VH, it is not a dumb question. As Pierre says, 100% tin is not a good idea. It needs about 2 - 3% lead (and I think copper) in order to produce an alloy that is durable and able to support the weight of large pipes.

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No VH, it is not a dumb question. As Pierre says, 100% tin is not a good idea. It needs about 2 - 3% lead (and I think copper) in order to produce an alloy that is durable and able to support the weight of large pipes.

 

 

I'm told that test pipes of pewter, which contains no lead, are possible and, indeed, one English builder has had sample pipes made to see how they compare in terms of ease of voicing and tonal quality.

 

JS

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