The Committee consisted of the following Members:
Chairs: †Steve McCabe, Mark Pritchard
† Cameron, Dr Lisa (East Kilbride, Strathaven and Lesmahagow) (SNP)
† Chalk, Alex (Cheltenham) (Con)
Courts, Robert (Witney) (Con)
† Davies, Mims (Eastleigh) (Con)
† Debbonaire, Thangam (Bristol West) (Lab)
† Donelan, Michelle (Chippenham) (Con)
† Harrison, Trudy (Copeland) (Con)
† Hayman, Sue (Workington) (Lab)
† Hoare, Simon (North Dorset) (Con)
† Latham, Mrs Pauline (Mid Derbyshire) (Con)
McCarthy, Kerry (Bristol East) (Lab)
† Pollard, Luke (Plymouth, Sutton and Devonport) (Lab/Co-op)
† Rutley, David (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
† Smith, Henry (Crawley) (Con)
† Sobel, Alex (Leeds North West) (Lab/Co-op)
† Turley, Anna (Redcar) (Lab/Co-op)
† Twist, Liz (Blaydon) (Lab)
Gail Poulton, Committee Clerk
† attended the Committee
Public Bill Committee
Tuesday 19 June 2018
[Steve McCabe in the Chair]
Offence of breaching the prohibition or causing or facilitating a breach
I beg to move amendment 9, in clause 12, page 7, line 40, at end insert—
“(1A) For the purposes of subsection (1), a person facilitates a breach of the prohibition if he or she, whilst not directly engaged in the process of a sale, acts in such a way as to allow that sale, or other form of dealing, to occur.”
This amendment defines ‘facilitate’, which is not defined in the Bill, using the text from the Explanatory Notes to the Bill.
During the evidence sessions we discussed enforcement and implementation, and the potential for mis-selling and misleading behaviour. The exact definition of “facilitate” in the Bill was also discussed. The amendment is designed to clarify that. The explanatory notes give details on page 22. They state:
“This offence would apply to anyone who, whilst not directly engaged in the process of a sale, acted in such a way as to allow that sale, or other form of dealing, to occur. For instance, this could apply to the owners of an online sales forum if they were found not to have taken reasonable steps to ensure that an item was a) exempt from the ban, and b) had been registered as such. Further, anyone found to have advertised an item in order to facilitate a sale may be found to be in breach of this clause.”
We thought that it would be helpful to include the definition of “facilitate” in the Bill, and the form of words used in the amendment is based on the explanatory notes.
I thank the hon. Lady for her careful consideration of the Bill and for this amendment, which seeks to define “facilitate” in the context of a sale of an item of ivory in breach of the prohibition on sales of ivory. I would like to reassure her, and the Committee more generally, that the amendment is not required. No definition for facilitating a breach of the prohibition was provided in the Bill, as the term “facilitate” shall have its natural meaning.
The amendment would also be misleading, as it refers solely to the sale of ivory, whereas the Bill is concerned with the broader concept of commercial dealing in ivory. The facilitation of the illegal purchase, hire or acquisition of ivory for valuable consideration—that is, bartering—is also prohibited. The wording used in the amendment is taken from the explanatory notes, as the hon. Lady set out, but those are intended to provide guidance and steer on the meaning of the Bill, not to prescribe provisions.
I share the hon. Lady’s intention that the Bill should be as clear as possible, but on this occasion I do not believe that the amendment is necessary. The current wording in the Bill is sufficient to define when an offence of breaching the prohibition through facilitation has been committed. Furthermore, the Bill’s explanatory notes are not intended to set a direction in the prohibition on dealing in ivory; they are there to assist the reader. With that explanation, I ask the hon. Lady to withdraw her amendment.
During the evidence sessions I asked a number of question about cyber-crime and how we can ensure that people seeking to deal in ivory online are properly captured, with regard to enforcement and making it clear that attempting to sell ivory items on the internet will be covered. The wording suggested by my hon. Friend the shadow Minister would enhance our ability to capture that cyber-dealing and ensure that we do not allow the illegal trade to continue online. I know that is often a challenge, but I wonder whether those words would strengthen that ability.
I thank the hon. Lady for that point, and I understand her concerns. We all want to make sure that cyber-crime is cracked down on more generally, and specifically in the Bill. As I said to the hon. Member for Workington, the Bill as drafted will tackle the issue of facilitation, so we do not need a further definition. We will also debate later today the role of internet service providers, which is included in the Bill. We heard from non-governmental organisations that they are satisfied that there are strong measures in the Bill and that the ban will be strong. I assure the hon. Member for Blaydon that the provisions will tackle the concern that she rightly raises.
On the understanding that it is clear what “facilitate” means, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment 10, in clause 12, page 8, line 1, leave out subsection (2).
This amendment would make the offences under section 12 strict liability offences. The defence of having taken all reasonable precautions and exercised all due diligence would remain, but the burden of proof would be shifted to the person on proving this, rather than on prosecutors proving the person knew the item was ivory.
I will spend a little longer on this amendment and go through the evidence from various witnesses. Chief Inspector Hubble raised serious concerns about her ability to prosecute if the Bill remains in its current form. She said:
“We also have some concerns that, as the Bill stands, we have to prove that it is ivory and that the person dealing in it knew, or ought to have known, that it was ivory. If you look on eBay at any given moment, you will find a number of items being offered for sale that are not labelled as ivory.”
The Minister might remember that in Committee we had a look at eBay, and it was extraordinary how many items were clearly being mis-sold. Chief Inspector Hubble continued:
“From an enforcement perspective, if someone is buying something that is not labelled as ivory, and they are selling it as something not labelled as ivory, how do I prove they knew it was ivory? With the Bill as it stands, that, for me, is a real concern from an enforcement perspective. The onus should be on them to prove that they did not know, not on me to prove that they did.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 35, Q59.]
I think that is very clear. There is no point in legislation if it cannot be enforced effectively.
Chief Inspector Hubble was then asked by my hon. Friend the Member for Bristol East whether adding a provision covering mis-labelling would help. Again, the chief inspector was clear that in order to prosecute under the terms of the Bill as drafted, enforcement officers would still have to prove that the seller
“knew it was ivory and that they had then mislabelled it, knowing that it was ivory.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 39, Q75.]
She then added:
“All the time that the burden of proof is on us to prove that they knew, that is difficult from an enforcement perspective. If the burden of proof was on them to prove that they did not know it was ivory, that would make enforcement much easier.”
Later she said:
“In general, we do not deal with the people who will apply for exemption certificates and who will register their items and apply for permits, because they are the responsible, law-abiding people. We deal with the ones who have a complete disregard for policy protocol legislation. We deal with the ones who are deceptive, who lie and who want to make money out of this. The burden of proof has to be manageable and has to be able to be enforced, otherwise it is not enforceable legislation.” ––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 39, Q76 and Q79.]
I am sure that none of us would want to pass legislation if the officers responsible for delivering it did not think that it was enforceable.
On Second Reading, the right hon. Member for North Shropshire (Mr Paterson) raised concerns about the implications of the current burden of proof lying with the enforcement agencies. He said:
“The defence of ignorance in clause 12 is a real concern, particularly as it is well known that the illegal trade is fuelled by unscrupulous traders marketing ivory as a bone or as ivory sourced from other species, such as a mammoth.”
I know the hon. Member for Mid Derbyshire is particularly concerned about that. The right hon. Member for North Shropshire continued:
“There should therefore be a basic sanction based on strict liability.”—[Official Report, 4 June 2018; Vol. 642, c. 104.]
When the ban on the sale of ivory is introduced, as I hope it will be shortly, if it is to have the outcomes that we all hope for, it will need to be vigorously enforced. As I said, it is no good introducing legislation unless we can enforce it vigorously. Deleting subsection (2) would shift the burden of proof and make enforcement more likely, and it would answer the request of enforcement officers.
I want to reinforce what my hon. Friend has said. The evidence from the police was clear: the burden of proof is critical, particularly given how easily items are passed around on the internet. There is huge scope for people to plead ignorance.
We heard examples of ivory being called animal bone. I looked briefly at eBay during that evidence session and was shocked at the proliferation of objects listed as animal bone, when they are clearly ivory, even to my unknowing eye. It will be extremely difficult for the police to enforce this legislation. We also heard about their small teams and the cuts. The critical point is that we are making their lives more difficult. It is extremely serious when a chief inspector tells a Committee in evidence:
“The burden of proof has to be manageable and has to be able to be enforced, otherwise it is not enforceable legislation.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 39, Q79.]
We cannot in any circumstances pass legislation that is not enforceable. It is great to say that we will lead the world with our ban on ivory, forge our way ahead and set a great example. If it is not enforceable and the trade continues, we might as well pack up and go home. We know what we are here to do. If the evidence from the frontline is that the Bill is not enforceable, that is not acceptable. We have to push on that.
I would like clarification from the Minister on subsection (2), where it states
“if the person knows or suspects, or ought to know or suspect”.
Will he provide evidence of how someone “ought to know” and how that could be defined in legislation? It does not seem strong enough to me. Enforcement officers are clearly asking for a shifting of the burden of proof, and that is what is needed if we are to make the Bill remotely enforceable.
It is a pleasure to serve under your chairmanship, Mr McCabe. I hear what the hon. Member for Workington has to say and can understand entirely the motivation behind it. However, if she pushes her amendment to a Division, I will not vote for it. Let me explain why. I want the Committee to think about the little old lady or gentleman who works in a charity shop selling items on a daily basis. They might come into work to find boxes of stuff when someone has done a house clearance after an aunt or uncle has died. They might sell something to somebody and then it transpires that an offence has been committed because the item is made of ivory.
I do not think that in those circumstances they should be found guilty of something because they knew or suspected, or should have known. Antiques dealers with an online presence, buying and selling all sorts of products, are precisely the sort of people who ought to know or suspect. I do not think the intention of the Bill is to have lots of officials running around trying to trace every single person who is doing something without prior knowledge, and certainly not maliciously or trying to get around the law. There has to be an element of common sense and balance.
I entirely appreciate that, in some instances, that evidence gathering can present a challenge to the enforcement authorities, but it is always a challenge for enforcement authorities to gather compelling evidence to bring a prosecution or levy a fine that is beyond challenge. I understand entirely why the Government have drafted clause 12(2) in this way, because they have to strike a balance and have a bit of common sense. It is right that there is that common-sense caveat in the enforcement clauses, and I urge the hon. Member for Workington to withdraw her amendment.
I think that this measure has to be strengthened, and we heard clear evidence along those lines from the experts. Like my colleague, the hon. Member for Redcar, I want to know what “ought to know” will be taken to mean in such a situation. Will it be based upon a person’s experience or history of dealing with such artefacts? I have concerns about how a person can prove that they did not know something. Proving a negative is difficult judicially. This measure should be strengthened, but I have concerns and would like to hear more from the Minister in that regard.
I thank the hon. Member for Workington for her amendment, the effect of which would be to make the commercial dealing of prohibited ivory items a strict liability offence. The hon. Member for Redcar and other hon. Members also made comments along those lines, and I will answer some of their questions in due course.
We all agree that the enforcement of the Bill should be rigorous, but I assure the Committee that the amendment is not required. Clause 12(2) makes provision for a person found to have breached the prohibition to demonstrate that they genuinely and reasonably did not know that the item was ivory. That could be, for instance, because they were unaware of ivory as a substance, or because the ivory in question could reasonably have been assumed to be something else.
If clause 12 offences were to become strict liability offences because of the amendment, the person accused of the offence would not be able to rely on the defence that they had taken all reasonable precautions and exercised all due diligence. The strict liability offences that would be created as a result of the amendment mean that, for the offence to have been committed, there is the need only for the actus reus—the act itself—to have been committed. There is no need for the mens rea—the intention. That would mean that subsections (2) and (3) would effectively be deleted.
It is good that clause 12(2) is in the Bill, because it allows for instances of genuine mistakes, as my hon. Friend the Member for North Dorset said, where there is unlikely to be a malicious intent to breach the Bill. For instance, a member of the public might sell in a car boot sale an item they found in their grandmother’s attic without realising that the material in question was elephant ivory.
I would like a bit more clarification on the point I raised about the phrase
“ought to know or suspect”.
When we pass the Bill, I hope the Government will share the news far and wide, because it will be a fantastic achievement. Surely everybody will think, even if they see something in their attic, “That could potentially be ivory.” Ivory is pretty distinct, and I would have thought that everybody—even a little old lady at a car boot sale or in a charity shop—would look at it, wonder what it is made of and think, “That could be ivory.” They will know, because hopefully the Bill will be widely heralded, that they ought at least to double check and find out whether it is something they should know about. I do not think the emphasis on
“ought to know or suspect”
goes far enough.
I thank the hon. Lady for that point, which was similar to that made by the hon. Member for East Kilbride, Strathaven and Lesmahagow. As currently drafted, the Bill gives a degree of discretion to the enforcement agency. It allows the officer to consider the position of the defendant and ascertain whether they should have knowledge of ivory—for example, an antiques dealer, which we will come to shortly—or whether they are a member of the public who has genuinely made a mistake. So there are points about proportionality and discretion.
An individual or organisation could, for example, show that they took reasonable precautions and exercised all due diligence through checking that the item had been registered prior to the purchase, or listed on an online platform, and that the registration or listing appeared to them to be authentic. Additionally, the enforcement bodies will consider the person’s position when taking a view about whether they should have known or suspected that an item was ivory. As I have explained before, there is a difference between a fully trained and experienced antiques dealer and a member of the public who could be young and inexperienced. The enforcement agencies need to have clearer discretion, as in many other forms of legislation. I will provide more details later. If we removed that provision, there would be no such defence. Further, doing so would place the sale of prohibited ivory in the same bracket as illegal transactions such as the sale of alcohol to a minor, where, as we know, a shopkeeper or a member of bar staff can be sanctioned for a sale on the ground of protecting public health. Strict liability must be used with considerable caution, and we do not think it would be proportionate to make these offences analogous.
Something has just come to my mind about how to strengthen the measure. It is about experience and having a connection to the industry. Might there be a loophole for unscrupulous people to try to engage the services of those who perhaps have no history of or direct connection to online sales? If someone is connected directly with individuals who ought to know, might we strengthen the legislation, because I would not like people to be able to use that as a loophole?
The hon. Lady makes a good point. Whatever people’s views are, nobody in Committee is seeking loopholes. We are trying to close them down. Her point would be covered by facilitation, which we have talked about previously.
It is very important in criminal law that we establish both the intent and the act itself, which need to be present for the offence to be committed. Strict liability is the exception as only the act itself needs to be present for the offence to be committed, for example, the sale of alcohol to minors and health and safety matters. With that explanation, I ask the hon. Lady to withdraw the amendment.
I appreciate the Minister’s generosity in giving way. I want to push him on what the words “ought to know” or “suspect” mean in this context. In the case of a police officer trying to convict someone, how can they prove that someone ought to know? He gave the example of someone being an antiques dealer or in the sector, in which case we can say that they ought to know, but how otherwise can a police or enforcement officer prove that someone ought to know? Public awareness ought to be sufficient, but how will a police officer be able to prove that someone ought to know?
As I have already described, enforcement agencies do such work all the time. They work through quite tricky situations where they have to work out the intent as well as the act itself: for example, the difference between murder and manslaughter. I am no lawyer, but there are differences in degrees. The key thing is that the Bill will push forward strict legislation. The NGOs were clear that the ban will be tough. The provisions in the Bill will enable people to be held to account. The enforcement agencies will be able to do that. As I have said, an element of proportionality and discretion is required, and that is true for the vast amount of law that enforcement agencies need to enforce.
To give another example, a person might have inherited an ornament thinking it was bone, as family members had always said that it was. The person then sells it without realising it is elephant ivory. It is difficult to say that they should have known. The enforcement agency will need to test that and work through it. Over time, it will be able to work out, through precedent and judgment, how appropriate it would be to use the range of enforcement measures that we will discuss line by line. Those measures are there to help work out proportionately how serious that particular crime is.
I have listened carefully to everything the Minister has said, and I thank the hon. Member for North Dorset for his suggestions, but the idea of little old ladies being imprisoned for finding things in their attics is a little beyond the point I was trying to make. The National Wildlife Crime Unit will be directly responsible for investigating, and for enforcing the legislation once it passes, so we should take seriously what the chief inspector said. To remind the Committee, she confirmed that the unit had only 12 members of staff, so it is pretty limited in what it can investigate. She said that if the convention on international trade in endangered species brings something to the unit, it can tie them up for several months. She also said:
“We deal with the ones who have a complete disregard for policy protocol legislation. We deal with the ones who are deceptive, who lie and who want to make money out of this.”
It is not about people who find things in their attics. She continued:
“The burden of proof has to be manageable and has to be able to be enforced”.––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 39, Q79.]
We need to take seriously what she is saying. The Minister said that enforcement services should be able to take a view about whether someone should have known, but Chief Inspector Hubble said that was difficult from an enforcement perspective.
Earlier in our proceedings, the Minister committed to a rigorous education programme. If we have an effective education programme, people should know to check for ivory. We need a law that is enforceable and will make a difference. Otherwise, what is the point?
Question put, That the amendment be made.
19 June 2018
The Committee divided:
Question accordingly negatived.View Details
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
New clause 3—Assessment of enforcement resources—
‘(1) Within 12 months of section 12 of this Act coming into force, the Secretary of State must make an assessment on the resources available to enforce the prohibition.
(2) The report shall consider in particular—
(a) the resources allocated or planned to be allocated towards enforcing the prohibition,
(b) the potential impact of any change in resources so allocated or planned to be allocated, and
(c) the impact on other law or border enforcement activities of the resources so allocated or planned to be allocated.
(3) The Secretary of State shall lay a report of the assessment under this section before each House of Parliament as soon as practicable after its completion.”
This new clause requires an assessment to be made and laid before Parliament regarding the level of resources allocated or proposed to be allocated to enforcing the prohibition against ivory dealing.
The clause provides for the new offences to be created under the Bill. The new offences have been developed to capture the likely chain of actions pertaining to commercial dealing in ivory or that support commercial dealing. Directly breaching the ban, causing it to be breached or facilitating a breach are all offences under the Bill. In practice, directly breaching the ban would include dealing in a prohibited item or dealing in ivory without an exemption certificate or registration for that item. That applies equally to the seller and the buyer. Causing a breach would include someone acting under the discretion of another person, such as an auctioneer, or someone otherwise engaged on behalf of another—a person selling an item on behalf of a friend, for instance. That relates partly to the point that the hon. Member for East Kilbride, Strathaven and Lesmahagow raised earlier. The offence of facilitating a breach discussed under amendment 9 would apply, for example, to those responsible for an online sales platform if they were found not to have taken reasonable steps to prevent an illegal sale. It would also include anyone found to have advertised an item to facilitate a sale, for instance a newspaper.
Clause 12(2) ensures that it is an offence to deal in an item of ivory if the person knows, ought to have known or suspects that the substance is ivory, as we discussed at length under amendment 10. That will mean that it is less likely that a defendant can rely on a claim that they did not know that an item was ivory because the item was mislabelled. The enforcement bodies will consider the position of the person in taking a view on whether they should have known or suspected the item was ivory, for instance whether the person is an antiques dealer or a member of the public, as I have said several times.
Clause 12(3) ensures that actions taken by individuals and organisations to exercise due diligence and avoid committing an offence should be taken into account and can be used as a defence. For example, a buyer of a prohibited ivory item may be able to demonstrate that they checked that the item was registered and that the registration appeared authentic before they making purchase, and an organisation that listed a prohibited item for sale, for example online or in a sale room, may be able to demonstrate that it had taken steps to check that it had been registered and that the registration appeared authentic.
Recognising that offences committed under the Bill will vary in severity, a mixed regime of criminal and civil sanctions will apply. Clause 12(4) details the criminal sanctions that are applicable to the offences. We are committed to setting a high bar for sanctions for illegal wildlife trade activities and, as such, the maximum criminal sanction of five years’ imprisonment or an unlimited fine will be applied in line with existing sanctions under the Control of Trade in Endangered Species (Enforcement) Regulations 1997—COTES.
The clause also provides for summary convictions through a magistrates court to be applied in line with the maximum sanctions applicable in each of the devolved Administrations. The regulatory body, the Office for Product Safety and Standards, and the police will be responsible for identifying and investigating breaches of the ban. Criminal breaches will be dealt with by the police and the Crown Prosecution Service and the specific nature of the breach will be considered when a sanction is applied, to ensure a proportionate approach is adopted, as discussed earlier.
We recognise that the defences under existing legislation, such as the Serious Organised Crime Act and Police Act 2005 and the Proceeds of Crime Act 2002, may apply to illegal dealing in ivory. The Bill will rely on the existing offences, where the appropriate criteria are met. For example, it would be an offence under the Fraud Act 2006 to make or use a fraudulent exemption certificate or registration.
New clause 3, which the hon. Member for Workington tabled, raises the critical issue of ensuring effective enforcement, a theme she has understandably been keen to raise this morning. I can assure the Committee that the issue is of foremost concern to the Government, as reflected in the strength of the powers we have conferred on the police, customs and the civilian enforcement body—the Office for Product Safety and Standards—to ensure compliance with the ban and to prosecute those who breach it. Effective enforcement is, of course, reliant on the appropriate resources, and I give credit to the police, including the National Wildlife Crime Unit and the Border Force for their efforts to date in tacking the abhorrent trade.
In the oral evidence to the Committee we heard that the CITES Border Force team is recognised as one of the best in the world at enforcing controls against the illegal wildlife trade. Moreover, both the Border Force team and the National Wildlife Crime Unit share their expertise with countries all over the world. It is paramount that the available resources are effectively used to enforce the ban.
Our proposals go further than the current regime by putting a civilian regulator in place to enforce the ban, alongside the police and the Border Force. The regulator will raise awareness of the ban and the compliance provisions and assess whether businesses are operating in compliance with the legislation. That will reduce the burden on the enforcement agencies by increasing compliance. The regulator will also be responsible for issuing civil sanctions, which are new in the Bill.
In developing and implementing the compliance processes necessary for the ban, the Government will assess the resources required and monitor their effective application over time. It will be a matter for the Home Office to allocate and monitor the police resources necessary for the enforcement of the ban, and the National Wildlife Crime Unit will play an important role. It will also be critical to assess the enforcement of the ban over time, including the number of cases successfully brought and the sentences applied.
We do not believe that the resources assessment should be included in the Bill. It would also be unhelpful for a single assessment to be made 12 months after clause 12 comes into force. That is because it is likely that different levels of resources will be required in the early stages of enforcement and as implementation progresses, for example, as awareness-raising exercises are carried out to improve awareness among those affected. Such an assessment would also not capture a sufficient period following the Bill’s coming into force. For example, it would not cover an assessment of court cases and rulings brought forward as a result of the ban.
The Government will assess the implementation of the ban over time, in particular its enforcement, as a matter of course. Much of this information will be in the public domain and open to civil society and to public scrutiny.
In summary, we do not believe this matter needs to be addressed in the Bill and a one-off assessment will not be sufficient. With this explanation, I ask the hon. Lady not to press her new clause.
First, I will make a few points on subsection (4)(a) to (c) on the sentencing guidelines. During the evidence sessions, we talked about the fact that the Bill is not just about enforcement; it is also a deterrent. We have the opportunity to introduce sentencing guidance for courts in the United Kingdom to make sure that magistrates and judges have proper information when hearing cases. We agreed that we need good sentencing guidance to ensure that appropriate sentences are given. I welcome the inclusion in the explanatory notes of a table setting out clear maximum penalties and the different sanctions, which are imprisonment or the statutory maximum fines. I may have misheard, but I thought the Minister said that there would be unlimited fines. Will he clarify that point?
Witnesses at the evidence sessions also stressed the need for significant awareness programmes to accompany the introduction of the Bill—I also mentioned that point during the discussion of amendment 10—not just for the judiciary, but for the general public. Education of the public, the judiciary and the enforcement officers is essential. Does the Minister have any further information about how his Department intends to roll out an education programme to inform the general public and the judiciary about exactly what is required and how the Bill is intended to work?
The witness from the International Fund for Animal Welfare said that he hoped that having consulted IFAW on the draft legislation, the Department would also be willing to consult it on the guidance notes. Has the Minister thought any more about that? Another witness, Alexander Rhodes from Stop Ivory, made an interesting and helpful suggestion about how we can learn from some of the African countries that are members of the Elephant Protection Initiative, which has been working hard to develop prosecution and sentencing guidelines for wildlife crime, particularly in relation to the ivory trade. During the evidence session, he said not only is this an area where we can learn from what African countries have been doing about the ivory trade, but our Government have paid for it anyway. He gave the example of Angola, where a challenge fund grant is paying to review a programme of legislative reform, and for prosecutor and judicial training. Has the Minister looked at how we can learn from that initiative? If good work is taking place in other parts of the world, it is important to learn from it to make the Bill as effective as possible. Will the Ministry of Justice or the Home Office be involved in developing the judicial guidelines?
New clause 3, as we heard from the Minister, is about the assessment of enforcement resources. We would require an assessment to be made and laid before Parliament on the level of resources allocated, or proposed to be allocated, to enforcement of the prohibition of ivory dealing. Clearly, unless we have effective enforcement, the Bill is toothless. Enforcement is a critical part of achieving the aims of the legislation. Chief Inspector Hubble stated that point succinctly during the evidence session, saying that
“any Bill has to be enforceable; if not, it is just guidance. It is not legislation if it cannot be enforced.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 35, Q59.]
None of us in Committee wants simply to produce guidance notes to guidance legislation.
During the progress of the Bill, Members in all parts of the House have raised the issue of resources necessary to enforce the Ivory Bill effectively. On Second Reading, the hon. Member for Richmond Park (Zac Goldsmith) said that
“the ban will be meaningful only if it is properly enforced”,
stressing the need for the provision of
“a long-term settlement for the National Wildlife Crime Unit, as well as resources for the CITES Border Force team.”—[Official Report, 4 June 2018; Vol. 642, c. 111.]
The right hon. Member for North Shropshire (Mr Paterson) asked for
“a strong, firm reassurance from the Minister that this legislation will need enforcing and will need the right level of expertise.”
Enforcement is not just about funding, but about the level of expertise required. He said that the National Wildlife Crime Unit should
“be beefed up and properly resourced for the future. On the same grounds, the CITES Border Force team at Heathrow needs sufficient levels of manpower and resources, as they will be our front line of defence against illegal imports and organised criminal activity coming into the UK.”—[Official Report, 4 June 2018; Vol. 642, c. 105.]
I am aware that the witness from Border Force at Heathrow said that he had the resources necessary for enforcement at the moment, but clearly the Bill might have an impact on that. It is therefore important to understand the potential increase in workloads, including the possible impact on the ability to enforce properly.
On Second Reading, the hon. Member for Mid Derbyshire also mentioned the National Wildlife Crime Unit. She expressed her hope that
“that the Secretary of State will be able to announce permanent funding for the unit, as its existing funding expires in 2020.”—[Official Report, 4 June 2018; Vol. 642, c. 116.]
In the evidence session with the enforcement agencies, we heard how the Border Force CITES team and the NWCU work in partnership, and that the Border Force no longer has an investigation function but hands over all its intelligence from investigations to the NWCU, with a view to the unit investigating the offences. We heard from Chief Inspector Hubble exactly what that involves:
“We collate that intelligence, develop it and research it to look at the number of items that people might be buying, selling or trading. We look at their associates. We try to map a network of people that they are linked in with, and ultimately we produce an intelligence package that goes out to a police force in the area where the person is committing the offences.
We have four officers who provide an investigative function to support police forces on the ground, and they work with police officers throughout the investigation: taking statements from witnesses, linking in with experts, compiling prosecution files, assisting with search warrants, and attending court to provide evidence… One seizure by Border Force can result in months and months of investigation for us, and we can compile hundreds of intelligence logs from that one investigation. At the moment, we struggle to disseminate all that intelligence back out to Border Force, to close that loop, because we just do not have the resource to develop that. We have to be selective in what we deal with”.––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 34, Q57.]
I imagine that every single member of the Committee is impressed with the amount of work carried out by such a small team—only 12 in total. The team does not just carry out investigations referred from Border Force, but works right across all of the UK wildlife crime priority areas, which is a significant remit outside CITES, including domestic wildlife, bats, badgers, prosecutions relating to birds of prey, freshwater pearl mussels and poaching. All of those sit within the UK’s strategic priorities, and the work of the NWCU is split right across all those areas.
A strong commitment to future funding is vital if that important work is to continue. We have heard that the funding is committed to 2020, but beyond that, the NWCU has had no formal indication that there will be continued funding, which clearly causes concern. It is unable to plan or commit to long-term strategies. It is very difficult for any agency to form business plans when, in 20 months, it may well not exist at all.
Chief Inspector Hubble said about the morale of her staff:
“It is difficult for me to keep my staff motivated when they have no job security—a whole raft of concerns are caused by funding.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 37, Q67.]
She was also asked about the potential increase in the number of investigations once the Bill comes into force. She replied that
“if a member of the public sees something on sale that they think is ivory, inevitably they will report it, which comes back to the issue of resourcing and how we deal with the potential increase in the volume of crimes”.––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 44, Q93.]
Grant Miller, from the CITES Border Force team at Heathrow was asked about the future of the NWCU and the implications for enforcement if its funding were to be discontinued. His reply was clear:
“Our ability to take cases and offenders before the courts would be impacted on greatly. We would be pushed into going out to each constabulary, looking for a supportive senior manager to take on an investigation on our behalf. If we were not able to find that, our activity would be just to disrupt and seize, and the threat would just continue.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 40, Q82.]
On Second Reading, the Secretary of State said he would look to strengthen and resource specialised enforcement to combat illegal ivory dealing. Winding up the debate, the Minister agreed:
“The work carried out by the National Wildlife Crime Unit is absolutely critical.”
With regard to its funding, he assured me that the Government
“are looking at that vital issue ahead of the IWT conference, and I am sure that the Secretary of State would be working on it with the Home Secretary.”—[Official Report, 4 June 2018; Vol. 642, c. 133.]
In response to a question from my hon. Friend the Member for Wakefield (Mary Creagh), the Secretary of State confirmed in that debate that
“in the run-up to the illegal wildlife trade summit this October we will be looking not just to ensure that we can continue to staff and support the officers who work in this field adequately, but to ensure that we go even further.”—[Official Report, 4 June 2018; Vol. 642, c. 98.]
Will the Minister give some more information on that commitment from the Secretary of State? When is the NWCU likely to hear about its future funding to support the delivery the Bill?
The Minister also confirmed that the Office for Product Safety and Standards will be the regulator. He spoke about that a moment ago, but will he elaborate on how the reporting requirements will work with the regulator? How does he see the regulator reducing the burden on the enforcement services, as he mentioned in his previous statement?
I rise to support new clause 3. I congratulate my hon. Friend the Member for Workington on that powerful and thorough speech. There is not much I can add; she made every point inimitably. We all heard the evidence in Committee about how overstretched the Border Force at Heathrow and the National Wildlife Crime Unit are. I come back to the point I made in the previous debate: if this Bill is to be groundbreaking and held up internationally as an example of how seriously we take this awful issue and how determined we are to stamp out the sale of ivory in this country, we have to put our money where our mouth is. That means we have to give the teams that do the enforcement the resources they need to undertake and enforce this Bill.
We heard that the CITES Border Force team has just 10 members. They carry out over 1,000 seizures a year and as my hon. Friend so clearly demonstrated, the months of work each seizure takes is hugely resource-intensive. We have also heard about how the National Wildlife Crime Unit has only 12 people across the whole country to undertake all the activities my hon. Friend so articulately set out. That is a very small unit.
At a time when, nationally, we have lost 20,592 police officers in just seven years and we have seen a 20% rise in violent crime, how on earth is the NWCU supposed to fight and press for its resources, when there are so many competing priorities within the police budget? We really have to take this issue extremely seriously. I wholeheartedly support the new clause because we simply cannot have this Bill, laud it and celebrate its passage unless we are going to put the money behind the teams that will make it a reality.
It is imperative that the new clause is accepted. We heard from the NWCU experts that the unit is a small team with limited resources for current demand, and it is unable to plan over the long term. This issue must be dealt with promptly, lest staff are lost because the unit cannot motivate them to stay. Staff in any job who know there may not be long-term funding have families and their own lives to think about, so they will move on to other roles. The expertise at the NWCU cannot be lost, particularly in making sure this Bill is enforceable.
I return to the furrow of cyber-crime, as I believe this is a significant issue when looking at enforcement. Last week, I asked Chief Inspector Hubble about any measures that could be added to help with enforcement. She replied:
“I would love to have a dedicated cyber-team looking at this day in, day out, with real training and a focused effort. Lots of people in the NGOs we work with are doing work around cyber-related crime. We are in the process of setting up a cyber-working group to try to pull some of that effort and interaction together and to have that group as a priority delivery group alongside the priority delivery groups we have for the other six UK wildlife priorities. That is going to be a significant resource.” [Official Report, Ivory Public Bill Committee, 12 June 2018; c. 36, Q63.]
Chief Inspector Hubble says that she needs additional resources to deal with cyber-crime. I support my hon. Friend the Member for Workington on new clause 3, because it would demonstrate that we are taking on the new challenges, including those facing the NWCU in terms of the rigid timespan and a lack of certainty. I urge the Minister to think again and to accept the new clause, which would show that, not only are we saying that we are doing something but that we are putting the resources into doing it.
I, too, rise to support new clause 3 in relation to resources. The evidence from the NWCU and the Border Force was compelling. At the moment, they are unbelievably stretched, and when I asked what would happen if the funding were not continued, it was made clear that the whole operation would effectively cease and the work would just be about disruption, as my hon. Friend the Member for Workington said. In another country with a similar legal basis to ours—the United States—enforcement is carried out by the equivalent of our NWCU, the United States Fish and Wildlife Service Office of Law Enforcement, which has 383 staff. Were we to be equivalently resourced—our population is about a fifth of the United States’—we would have about 75 officers. We have 12, so it is not just an issue of retaining staff. We are at about a fifth of where we should be, in comparison with countries with equivalent laws and enforcement. New clause 3 is therefore vital if we are to do a proper and robust stock-take of where we are, and identify the resources needed to properly enforce the law that we will pass. Hopefully it will be a robust and world-leading law, but if we cannot enforce it, what point is there in having it?
I thank hon. Members for their contributions. The argument advanced by the hon. Member for Workington was characteristically thorough, and I will do my best to answer her questions, along with everybody else’s.
The first point the hon. Lady made was about clarifying the situation on fines. Hopefully I can do that. It is important to remember, because the Bill is new legislation, how it will be structured. First, there will be criminal sanctions. For a summary conviction in a magistrates court and so forth, the fine will be a statutory maximum of £5,000; for indictable offences, the fine is unlimited. That is under criminal sanctions. The other thing to remember is that we are also introducing in the Bill—I feel strongly about this, because we will be able to put in place a wide range of measures to take care of lots of different types of breaches— a fine of up to £250,000 under the civil sanctions. There are many different tools. Hopefully that answers the question.
I think we mentioned in our previous sitting that the form of the education programme is yet to be decided, but the focus will be on raising awareness in the most relevant areas. We talked last week about how we will need to work with the music industry; we will need to work with the antiques industry as well, and with members of the public. That is where the Office for Product Safety and Standards will play an important role.
The hon. Lady talked about the very good work being done in Angola. Sentencing guidelines are generally issued in the UK by the Sentencing Council. We are delighted with the work undertaken in Angola with the illegal wildlife trade challenge fund money, but we should note that that worked within the specific circumstances of Angola. None the less, we need to learn from best practice, which I think is the point that the hon. Lady made. We agree with that in principle.
Points were raised about guidance. The Secretary of State will prepare statutory guidance for offences imposed under clause 12. That means that there will be a public consultation on the guidance, which will include getting information from NGOs. The hon. Member for Workington was keen to see that happen. Of course, that would also involve the Ministry of Justice and the Home Office. All relevant parties involved in that process will want to make the guidance robust and appropriate.
Comments were made by the hon. Members for Redcar, for East Kilbride, Strathaven and Lesmahagow, for Blaydon, and for Leeds North West—almost a full house—about the role of the NWCU. Everybody is keen to sing the unit’s praises for the great work that it does. We fully accept that we need proper funding in place for regulatory and law enforcement agencies to tackle wildlife crime. The Department for Environment, Food and Rural Affairs currently co-funds the NWCU with others, including the Home Office and the police. Decisions on the ongoing post-2020 deployment of police resources are a matter for the Home Office and individual police chief constables.
Questions were raised about future funding. Clearly, we have the IWT in mind. We want to show people that we are serious about the work that we are doing; that is very clear from the feedback from the NGOs. However, the specific, longer-term funding, post-2020, will be part of the normal spending review process, notwithstanding ongoing dialogues. That is where the more sustainable approach to funding, or the future funding, of the NWCU can be reviewed. That process will be kicking off very soon. That will be an important way of engaging with that debate and looking at the resources that are in place.
We should not forget the role of the regulator. It is easy to focus on the things we know, but we are paving the way for a new regulator—the OPSS—to come into force. The funding for the additional work it will undertake as a result of the sales ban will not be an insignificant amount of money. It is important to note that we are appointing the regulator to enforce the Bill and issue the civil sanctions, which I talked about in relation to the fines. That will constitute the bulk of the work. We are focused on criminal sanctions, but the vast bulk of the work will relate to civil sanctions. That will constitute the work that the OPSS will do. We therefore do not expect the burden on the strategic intelligence-led NWCU to increase significantly. The OPSS is designed to take out the volume of activity. Given those explanations, I hope the hon. Lady will withdraw her new clause.
I remind hon. Members that votes on new clauses come at the end.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
Amendment 13, in schedule 1, page 31, line 22, at end insert—
“(d) the circumstances in which the Secretary of State would consider criminal sanctions more appropriate than civil sanctions.”
This amendment requires the Secretary of State’s guidance under paragraph 21 to state in what circumstances criminal sanctions are considered more appropriate than civil sanctions.
That schedule 1 be the First schedule to the Bill.
Amendment 13 is pretty straightforward. It was designed to clarify the circumstances in which the Secretary of State will consider criminal sanctions to be more appropriate than civil sanctions. We propose to insert it into paragraph 21 of schedule 1 in order to be absolutely clear about why a criminal sanction would come into play, as opposed to a civil sanction. The Minister said that the bulk of cases will come under civil sanctions, but what is the tipping point? We feel that anyone involved in this will need to understand properly the circumstances in which the Secretary of State would consider a case to have tipped into a criminal sanction.
I set out in our discussion on clause 12 that a mixed regime of criminal and civil sanctions will be applied to the offences under the Bill. In line with that approach, clause 13 ensures that civil sanctions may be applied to breaches of the ban. The civil sanctions are detailed in schedule 1. We recognise that offences made under the Bill may vary in severity. Overly harsh sanctions should not be applied in a way that could be deemed to be disproportionate. For example, where members of the public have genuinely made every effort to abide by the ban or are genuinely of the belief that the item is not ivory, it would clearly be inappropriate to levy criminal sanctions.
However, compliance with the ban cannot be seen as optional. Acts of non-compliance must be deterred and penalised with the appropriate level of sanction. That is critical if we are to meet our objective of ending the link between the UK ivory market and elephant poaching. The clause ensures that, where a criminal sanction is unwarranted, a range of civil sanctions may be applied. The regulatory body and the police will be responsible for identifying and investigating breaches of the ban. The regulatory body will be responsible for issuing civil sanctions, as I described earlier.
If an offender does not comply with a civil sanction imposed against them—for example, if they do not pay the monetary penalty imposed against them within the necessary period—they may be subject to criminal sanctions. The Government believe that the range of available sanctions reflects the seriousness of the ban, while allowing it to be proportionate. I commend the clause to the Committee.
I thank the hon. Member for Workington for tabling amendment 13, and for her careful consideration of schedule 1. Like her, I want to ensure that those found in breach of the prohibition are given the most appropriate sanction, be it civil or criminal. The trade in ivory is abhorrent, and the sale of items that could directly or indirectly contribute to the poaching of elephants needs to be treated accordingly. However, I do not believe that the amendment is needed to ensure that. The information that she intends to set in guidance before the prohibition comes into force is already stipulated in paragraph 21(1)(c) of schedule 1, which sets out that the Secretary of State will provide guidance on
“the circumstances in which the Secretary of State is likely to take any such action”,
in relation to an offence committed under the prohibition.
The regulatory body and the police will be responsible for identifying and investigating breaches of the ban, and the regulatory body will be responsible for issuing civil sanctions. Criminal breaches of the ban will be dealt with by the police. The type of sanction issued will, of course, depend on the nature of the offence that has been committed.
The amendment would interfere with the discretion given to enforcement and prosecution authorities as they consider the facts of each case to arrive at a decision as to whether criminal or civil sanctions would be more appropriate. I reassure the hon. Member for Workington that, given the wording of paragraph 21(1)(c) of schedule 1, sufficient information will be outlined in the guidance, which should aid the correct authorities to enforce the prohibition. With that explanation, I ask the hon. Lady to withdraw her amendment.
I thank the Minister for providing that detail. Schedule 1 states that the Secretary of State must
“prepare and publish guidance as to”—
this is in paragraph 21(1)(c)—
“the circumstances in which the Secretary of State is likely to take any such action.”
Does that clearly explain whether he would consider criminal sanctions to be more appropriate than civil questions? Perhaps further clarification could be given in the guidance that accompanies the Bill, because it is important for people to understand whether these are criminal or civil sanctions. Could the guidance be elaborated to make that clear?
I understand the hon. Lady’s concern about getting this right. I can assure her that there will be further clarification on these points in the guidance. The point is well made, but it will be in the guidance.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Power to stop and search persons
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss clauses 15 and 16 stand part.
These clauses all refer to powers of stop-and-search to be conferred on police and customs officers. They refer to persons, vehicles, and vessels and aircraft respectively. Clause 14 confers on police and customs officers the power to stop and search persons. There is no power to stop and search where an officer suspects that a person has in his or her possession an ivory item that is not intended for dealing. In order to use the powers, an officer will need reasonable grounds to suspect that a person has committed or is committing an offence. That might include intelligence gathered about a planned sale of ivory, or information from the registration database that an item has been falsely registered. A police or customs officer may also detain a stopped person for the purpose of carrying out a search. The stop-and-search powers in clause 14 are exercisable in any place to which a police or customs officer has access, including any public place.
Clause 15 confers on police and customs officers the power to stop and search vehicles. Again, the power is engaged where an officer has reasonable grounds to suspect that a person has committed or is committing a “relevant offence”, as defined in clause 14(4). The power does not apply where the vehicle is a dwelling. A dwelling is not defined but is intended to be given its natural meaning—the exclusion would, for example, apply to a residential caravan. The power will apply to vehicles whether or not a driver or other person is in attendance of the vehicle.
Where it is impractical for a stopped vehicle to be searched in the place it was stopped, an officer may require the vehicle to be moved to another place before conducting the search. That provision would apply, for example, where a vehicle was stopped on a busy road and it would be safer to conduct the search in another location. Clause 15(4) places a duty on any person travelling in the vehicle, or the registered keeper, to facilitate the exercise of an officer’s power under the clause. For example, the driver of the vehicle may be required to open a locked glove box or boot. Again, those stop-and-search powers are exercisable in any place to which the officer has lawful access. That would enable a vehicle parked in a garage on premises that were the subject of a search warrant under clause 15(7) to be searched.
Clause 16 will confer on police and customs officers a power, analogous to that in clause 15, to board and search vessels or aircraft. A vessel is defined in clause 36(4) and includes any ship, boat or hovercraft. However, the power does not apply where a vessel or aircraft is used as a dwelling—a houseboat, for example.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clauses 15 and 16 ordered to stand part of the Bill.
Powers to enter and search premises
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
Clauses 18 and 19 stand part.
That schedule 2 be the Second schedule to the Bill.
The hon. Member for Cheltenham said during one of our evidence sessions that some people had raised concerns about the fact that accredited civilian officers at present have quite swingeing powers to enter premises, search, check and so on. He asked Anthony Browne, the chairman of the British Art Market Federation, whether he had any concerns about the scope and nature of those powers, and Mr Browne’s reply was that there were concerns and that he was very glad that the hon. Gentleman had raised the issue.
Mr Browne said that one of the federation’s members had been given legal advice—he said he was happy to make that available to the Committee, although I am not sure whether he has—that giving those powers to civilians was
“most unusual…if not unprecedented, except where public safety considerations are in prospect.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 49, Q105.]
I wonder whether Mr Browne has submitted that advice to the Minister. He did say that he had a memorandum that he was happy to submit for consideration. Has the Minister had any more thoughts on that? I thought that the hon. Member for Cheltenham made a very good point. He said that it is not entirely clear in the legislation who the accredited civilian officers would be, their qualifications and where they would be drawn from. I would be grateful if the Minister would clarify those points.
The hon. Member for Workington has put it very well. I have nothing to add but, for obvious reasons, endorse the remarks she has made.
The hon. Lady makes some important points. I will wait for a little inspiration to help with some of them. It is important to recognise that accredited civilian officers are members of the OPSS and already have powers of entry and search under the Consumer Rights Act 2015 in relation to products subject to trade.
It is about recognising the new role. The regulator is new and, therefore, we are trying to understand what it can do. They already have a pre-existing role and within that they have these powers to enter and search. They also have powers under the Serious Organised Crime and Police Act 2005. These are specific servants given a particular role and they do have pre-existing powers that they could use in trying to prohibit the sale of ivory, or commercial activity relating to it, that does not qualify for exemption. I hope that answers the hon. Lady’s question.
Will my hon. Friend be kind enough to indicate the training that takes place before someone is qualified to use these important powers? Bearing in mind that the individual would be entitled under the legislation to enter premises—albeit non-dwelling premises—and to search in an intrusive way, we need to ensure that the people exercising those important powers have been fully trained, so that civil liberties are protected.
My hon. Friend makes an important point. Of course, there will be a strong training regime to ensure that these individuals are able to carry out their current role and we want to ensure that they have adequate training to take on new roles related to the ivory prohibition. I will write to him with details of how that will be moved forward.
Further to that point, the situation has been described as possibly unprecedented. How often does the Minister see these civilian officers taking part in investigations? Would that be rare or a regular part of the enforcement process? That would clearly affect resources and training. I would be grateful for clarification on that.
The Bill is clear that the powers given to the body and its members will be strictly controlled. The relationship with customs officers and police officers is tightly defined. As for the number of times it will be used, we are putting more focus on civil sanctions. The key point is that officers or members of the OPSS will need these powers to carry out their work and move matters through. The hon. Lady will note that clause 17 requires the OPSS to issue reasonable notice of intent to enter. The move to enter premises is not just to search; it can also be to ensure compliance. It is important to remember that the job of the OPSS is to help educate and train as well as ensure compliance and enforcement. It is a matter of thinking about their role more broadly. In many situations, as set out in the Bill, reasonable notice will be required.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clauses 18 and 19 ordered to stand part of the Bill.
Schedule 2 agreed to.
Clauses 20 to 26 ordered to stand part of the Bill.
Offences of obstruction etc
Question proposed, That the clause stand part of the Bill.
I wish simply to underline a point that has been made already. Clause 27 creates offences of obstruction if anybody, without a reasonable excuse,
“obstructs an officer in the performance of any of the officer’s functions under sections 14 to 24.”
That includes an accredited civilian officer, so it is all the more important, given the potential criminal sanctions that can apply, that the individual who possesses these significant powers of search, seizure and requiring the production of documents is truly competent and capable of that task. I wanted to take this opportunity to underscore the point, given the severity of the sanctions, that this is not something that should be skimped.
I reassure my hon. Friend that we are not looking to skimp, and we must of course ensure proper training. I will write to him, as I have already promised. We are all getting our heads around a new regime, but I assure the Committee that it is not unprecedented for OPSS to exercise powers under legislation; it falls under the remit of the Department for Business, Energy and Industrial Strategy and, as I have said, it has these powers already in relation to the Consumer Rights Act 2015. We want to ensure that it has the proper powers and that there is proper training, because of the implications.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clauses 28 to 34 ordered to stand part of the Bill.
Meaning of “ivory”
I beg to move amendment 11, in page 20, line 40, leave out “an elephant” and insert “a hippopotamus, elephant, killer whale, narwhal, sperm whale, or walrus.”
This amendment would include in the definition of ivory all the ivory-bearing species listed in an Appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
With this it will be convenient to discuss the following:
Amendment 12, in page 21, line 3, leave out from “subsection” to the end of line 5
This amendment would allow the Secretary of State to make regulations in the future that would include any ivory species, even if not listed in an appendix to CITES.
Clause stand part.
Amendment 11 would include under the definition of ivory all the ivory-bearing species listed in an appendix to CITES. We have discussed the definition of ivory at length at every stage of the Bill, so I want to consider some of the discussion that we have had.
On Second Reading, the Secretary of State said that there would be an opportunity in Committee to consider whether the scope of the Bill was absolutely as it should be. He said:
“A number of Members have previously indicated their interest in extending its scope to other forms of ivory, such as narwhal horns, and there will indeed be an opportunity to debate precisely that matter in Committee.”—[Official Report, 4 June 2018; Vol. 642, c. 92.]
With amendment 11, I am taking the Secretary of State up on that generous offer and considering it in more detail.
I know how the Minister appreciates it.
Several hon. Members, some of whom are members of the Committee and others who are not but took part in the Second Reading debate, have spoken about why they feel it is really important that we look at extending the Bill’s scope. They include my hon. Friend the Member for Bristol East, who I believe is paired today, the hon. Members for Mid Derbyshire and for North Dorset, who are both here today, the right hon. Member for North Shropshire (Mr Paterson), and the hon. Members for Richmond Park (Zac Goldsmith), for North East Hampshire (Mr Jayawardena), for Berwick-upon-Tweed (Mrs Trevelyan), for Bexhill and Battle (Huw Merriman), for Witney, and for Southend West (Sir David Amess). They all raised the specific issue of extending the scope on Second Reading.
Although I agree that we need to look at going beyond elephant ivory at some point, we need to get this Bill through quickly, even though it is narrow. I would have preferred it to be wider, but it cannot be because we have not consulted on that. Does the hon. Lady agree that it would be better to get the Bill through and to widen the scope at a later stage, as soon as we possibly can, rather than delay its implementation as it stands?
I agree that we need to get the Bill through very quickly, because of its important purpose. However, on consultation, I have taken professional advice from the Consultation Institute, and I declare an interest because I am an associate. Its advice to me, as a professional organisation that works with different Departments, is that consultation will not necessarily delay the Bill and prevent it from being ready before the conference that we are all looking forward to in October.
The Consultation Institute does not believe that it is illegal to move forward without further consultation, but if consultation was necessary, the Government could easily devise a quick consultation of no more than 14 days, by going back to the organisations that have already shown an interest in this matter through responding to the initial consultation. That could be done very quickly; there is no reason to delay the Bill by extending that consultation. The institute would be happy to work with the Department and endorse that consultation formally at the end, so that there would be no challenge. The Government have apparently done short consultations in the past as top-up consultations to something that has already taken place, as a piece of legislation goes through.
I appreciate the helpful explanation of the consultation process, and I completely agree with my hon. Friend. I am quite confused about the point that has been pressed a number of times, that widening the scope slightly to include other animals would delay the Bill’s progress. The Opposition have tabled an amendment, which is being discussed. If we were in a world where we did not amend Bills during a parliamentary process because we had not consulted on the relevant issue from the exact outset, goodness me, hardly any legislation would be amended in this place and we would deal only with what was presented to us at the beginning of the process.
Clearly, we need to be able to crack on and we must not get too bogged down in consultation. However, we do not want at any stage for this Bill to be able to be challenged. That is very important. There are certain sections of the art market that wish to challenge the Bill. That is why I took that professional advice from the Consultation Institute, so that it would be happy to work with the Department to ensure that there is no opportunity for a legal challenge if another short consultation was held to allow the scope to be extended.
To return to the suggestions of other hon. Members in debates and evidence sessions, the hon. Member for Berwick-upon-Tweed spoke very strongly about the need to extend the scope. She said that this is a “one-off opportunity” to highlight the other mammals that would be affected. My hon. Friend the Member for Bristol East said:
“We know that this will be the only time we have an Ivory Bill before this House for many years to come, so if we are going to try to protect those species, it makes sense for us to do it now, in this Bill.”—[Official Report, 4 June 2018; Vol. 642, c. 105.]
The right hon. Member for North Shropshire, who is a former Environment Secretary, raised an important point on Second Reading. He said:
“The Secretary of State should also be able to include other ivory-bearing species not listed in the CITES appendices”,
an important point made previously by the hon. Member for North Dorset. The right hon. Member for North Shropshire went on:
“As the Born Free Foundation has indicated, there has been an increase in the purchasing of hippo and other non-elephant ivory in the UK to replace elephant ivory in the internal trade. The BFF infers that the legal and illegal trades are targeting these other species, as the Government’s focus is on elephant ivory.”—[Official Report, 4 June 2018; Vol. 642, c. 104.]
It is important to keep the focus on elephant ivory, but we must not lose sight of what else is happening.
Given that the total number of hippos in Africa is only about 25% of the figure for elephant populations, we must be careful to ensure that a ban does not unintentionally place those species under yet more pressure. It therefore makes sense for us to specify at least hippos in the Bill, and to do it now rather than delay by having to put through a statutory instrument at a later date. Of course, we do not know when that statutory instrument would be introduced.
The hon. Member for North East Hampshire also made some good points, particularly that clause 35 is unnecessarily narrow in defining ivory as coming only from the tusk or tooth of an elephant. The explanatory notes cite many other species that would be eligible for regulations to be laid at a future date; but as I have said, taking on the point about consultation, why do we need to wait now? Why do we need to wait on an issue that would adversely affect other animals when we could sort it out in the Bill in the first place?
The Minister mentioned the importance of not having loopholes in the Bill, but if we do not include these other species, we create a loophole whereby those who would seek to perpetrate crimes against elephants would then just move to other animals. We have talked about mislabelling and misleading the public and the importance of clamping down. We cannot allow those loopholes to exist, and we must not create any new ones in this Bill that people would wish to exploit. The Minister clearly expressed that wish earlier in the discussion.
We have an unique opportunity—a genuinely unique opportunity—to make a huge difference not just to elephants, but to other species that need to be protected. I ask the Minister to seriously consider the amendment, which has a lot of support from hon. Members right across the House.
It is a pleasure to follow the shadow Minister. She will not be at all surprised to hear that I have a huge amount of sympathy with what she has said, but I also entirely take the point made by my hon. Friend the Member for Mid Derbyshire. It is good and bad fortune that the timetabling of this is slightly hog-tied by the conference taking place in London this autumn. If we are to showcase to the rest of the world our seriousness about dealing with this issue, and to use the Bill as an exemplar of what other countries can do to bring pressure to bear on the ivory trade, it is imperative that we progress the measure as speedily and smoothly as possible.
The hon. Lady has made perfectly valid points, which many of my hon. Friends made on Second Reading. She was kind enough to refer to the remarks that I made in two interventions on the Secretary of State. Notwithstanding those points, I think we should focus on trying to move this forward. However, I hope she will agree, and I hope—in fact I am almost certain—that my hon. Friend the Minister will already be casting his mind to Report stage. We often think that in Committee we raise issues in more detail than on Second Reading, but Departments still have to go away and do further thinking, research and indeed inter-departmental consultation, rather than issues being decided with the flick of a ministerial pen. I certainly hold out much hope that when we come to our debates on the Floor of the House on Report, the Minister will have good or encouraging news, predicated on the remarks that many of us have made about the scope of the clause.
For the record, I am certainly keen to see the word “only” deleted. Of course we should use CITES as a foundation for the parameters of the clause, but we should have the scope to list animals that are not endangered. I am tempted to say that we list animals as endangered only when it is too late. If we are keen to de-commoditise the attractiveness of ivory as a tradeable item irrespective of its source, perhaps in 18 months to two years we might find a diminution in the value and volume of elephant ivory, but an absolute explosion in warthog ivory, and debates on that. I am rather fond of the warthog; I do not know why. I am a fan of Flanders and Swann, who had a charming song—I am sure it is available on YouTube or somewhere—about warthogs. Perhaps colleagues could listen to it during the lunch adjournment and understand the inherent beauty of the warthog. We might have scope on Report to hear about how we could base the clause on CITES, but also bring other species not covered by CITES as endangered into the list.
Like my hon. Friend the Member for Mid Derbyshire, I have an interest in seeing the Bill include mammoths. I am not persuaded by the argument that because a species is extinct, the still sellable product—the mammoth tusk—should therefore be excluded. I was grateful to the NGO representatives at the evidence stage who made the point about the need to protect and preserve the dwindling numbers of both the African and the Asian elephant. We know that there are tricksters out there who will try to find maintenance in the market for their wares, and will—I am told it is pretty easy if one knows how—convert elephant ivory into something that looks and feels like mammoth ivory. We create a lacuna in our aspiration of trying to de-commoditise ivory if we exempt mammoth ivory merely on the premise of its coming from an extinct species. My hon. Friend the Minister will be hugely relieved to know I am not a parliamentary draftsman. I simply suggest that perhaps on Report, were we to see a Government amendment moving the deletion of paragraph (b) from subsection (6), because the mammoth falls within the elephant family, that would neatly tie that up.
The shadow Minister knows I hold her in very high regard. With apologies to my hon. Friend the Member for Cheltenham, we live in a litigious age where lawyers grub around for every shilling and halfpenny—not my hon. Friend, of course, who stood primus inter pares at the Bar. However, one or two look to advance a case in order to make a little money.
I slightly challenge the hon. Member for Plymouth, Sutton and Devonport. I heard what the hon. Member for Workington said, but were we, at the stroke of a ministerial pen in Committee, suddenly today to include in an Act of Parliament species that had not been consulted on, that would make the Government open to the potential for judicial review. While the direction of travel as set out clearly in subsection (4) might not be perfect, it is to be welcomed.
My right hon. Friend the Secretary of State responded to interventions about a real appetite to see a widening of the species included under the Bill, to be dealt with by delegated legislation, and all of us who are serious and focused on this issue—there is no division on that in the Committee—should feel that is the way to go. However, on the inclusion of mammoths, I hold out hope. It may be overly simple to delete subsection 6(b), the requirement for extant species on the day on which the Bill is passed—there may need to be concomitant knock-on amendments to other clauses—but that would clearly bring mammoths within the scope of the Bill. As a helpful way forward, we should consider basing the Bill on CITES but not restricting ourselves to that.
If the hon. Lady presses her amendment to a vote, I will, with regret, vote against it. My strongest drive may not have been that if I were not persuaded of the responsive tone of both my hon. Friend the Minister and the Secretary of State on the broadening and deepening of the clause. My strongest imperative is to be able to send a clear message to other legislators in October. Therefore, it may be regrettable, but on this occasion our main focus must be the timely progress of the Bill.
I rise to support amendment 11. I will restrict my comments to the narwhal as I do not have time to go into depth on the hippo, killer whale, sperm whale and walrus. Narwhal were known as sea unicorns for many centuries before exploration of the Arctic, and their tusks were one of the most valuable commodities in pre-industrial revolution Britain. Queen Elizabeth I is said to have spent £10,000—equivalent to £1.5 million today—on a narwhal tusk, which was placed with the Crown jewels. Although narwhal horns are no longer so valuable, they are valued at between £3,000 and £12,000, and a double tusk can fetch as much as £25,000.
The International Union for Conservation of Nature considers narwhal hunting still to be a major issue. In Canada and Greenland, narwhal hunting is still permitted, and between 2007 and 2011 an average of 979 narwhals were hunted a year. The Inuit as a native tribe have hunted narwhal for centuries, using them as a source of both food and income.
Numerous reports have been produced, and there is an evidence base from non-governmental organisations. CITES has said that there is a significant trade in narwhal tusks and parts but that there is not sufficient data to track it. The Whale and Dolphin Conservation Society is concerned that the hunting of narwhal has already become unsustainable. Narwhals have been over-harvested in Canada and Greenland. The society said:
“The annual hunting in western Greenland…significantly exceeded the quotas recommended by those scientific bodies of regional and international organisations charged with narwhal management.”
Narwhals are significantly impacted by climate change. While I understand the need to make haste with elephants, narwhals face more than one threat, so it is important to agree to the amendment to include narwhals in the scope of the Bill.
I am not sure whether the Minister is aware that the Inuit people are permitted to sell narwhal derivatives, including the horn, within the European Union. There are restrictions on what can be imported without permits, and penalties for contravening import rules. Will the Minister give us some more information about that and about how we will deal with the issue if we do not agree to the amendment?
It is useful to know that a joint US-Canada anti-smuggling investigation—Operation Longtooth—uncovered a significant and profitable illegal trade in narwhal tusks to the United States. In 2013, Gregory Logan was arrested in the US for offences relating to a staggering 250 Narwhal tusks, resulting in a fine of $385,000 and an eight-month sentence. The US has already tightened up on the trade, so if we do not, it might move to the UK and Europe. We need to include the narwhal in the Bill because of the existing hunting, trade and threats. I understand the concerns about having to consider the views of non-governmental organisations, but they have, across the piece, put forward evidence on the matter, and I think we can do this in short order. I am sure that we can get advice about how to move forward swiftly with a quick and short consultation on the matter.
I, too, rise to support the very important amendment 11. A phrase that is used with medical students is “first, do no harm”, and we ought to think about that all the time when passing legislation. I have a real concern, which is backed up by evidence, that when passing legislation such as this we can have a disproportionate impact on another species. We all support the Bill wholeheartedly; it is long overdue in protecting elephants, but we should be absolutely mindful of its potentially damaging knock-on effect on other species.
I rise to speak about the noble hippopotamus in particular. [Hon. Members: “Hear, hear!] I think everyone agrees what a beautiful and wonderful animal it is. The number of hippos in the world has crashed by 95% in 30 years, and that is widely acknowledged to be a knock-on effect of the increasing restrictions on the trade in elephant ivory. For example, in the Virunga national park in the Democratic Republic of the Congo there were 29,000 hippos and there are now just 1,300. The hippo is vulnerable and is on the red list of threatened species, and there is deep concern that it is being poached and hunted for its teeth, particularly as the loopholes close around elephant ivory. In 2014, 60 tonnes of hippo teeth were exported to Hong Kong from Africa, and from there they were sent to European countries. If the purpose of the Bill is to close markets that are driving that trade, there is clearly a strong integrated global trade in hippo teeth that has a huge effect on the species.
Different countries are taking different steps. Uganda has banned the trade in hippo teeth, and in the Democratic Republic of the Congo the hippo is a protected species. It is vital that we take this opportunity to send out the message that we in this country do not believe that hippos should be killed or poached for their teeth, and that our view is that our legislation on protecting elephant ivory will not have a damaging impact on the hippopotamus.
I close with a quote in the National Geographic by Pieter Kat, who is a conservation biologist in east Africa:
“What we need to realise is African wildlife conservation should not be guided entirely by a focus on elephants and rhinos. Many other species are being traded to extinction in Africa, and I would to have say hippos are probably one of the most obvious examples of this.”
We need to tread very carefully, so that in doing something fantastic to protect the beautiful species of the elephant we do not have a knock-on effect on that of the hippo.
I rise to support the amendment, and to pick up on the point made by the hon. Member for North Dorset about the risk of parliamentary sovereignty being judicially reviewed. Unfortunately, I am not sure that the Clerk can intervene in Committee to clarify the legal position, but I reassure the hon. Gentleman that the courts are there to reinforce the will of Parliament rather than to police it.
Primary legislation cannot be judicially reviewed. That picks up on the point made earlier by my hon. Friend the Member for Redcar that no amendment can be made to any Bill, subject to consultation, if we have strict enforcement. However, given the fact that there is no risk of judicial review of primary legislation, and that the shadow Minister has provided a handy, quick, short consultation route, I do not see much problem with accepting the amendment.
The process by which the law is made is judicially reviewable, and one cannot put in, when making law on a whim—whether of a Committee or of a Parliament—something that has not been consulted on, under the regulations, with relevant bodies. For example, we know that we will ban flammable materials for high-rise blocks. The Government still have to consult on it, because we cannot just make law on the hoof. The process of suddenly including things that were precluded from the scope of the Bill when it was a Green Paper for consultation is, I am afraid, judicially reviewable. The hon. Gentleman is right about the outcome, but the process by which we arrive at it is judicially reviewable. That could delay the implementation of the Act. That is what we have to avoid.
I thank the hon. Gentleman for his comments. As the Bill is called the Ivory Bill, it is well established that its scope can include ivory. The only definition included in the Bill refers to elephants. A clear opportunity is available to Members to expand that to include other species that are directly at risk from the precedent set by tackling only elephant ivory.
I am not certain that the hon. Gentleman is correct when he talks about the judicial review risk. However, I am certain that we all want elephant ivory to be banned and the ban to be extended to other types of ivory. Two possible routes have been laid out: the first is accepting the amendment proposed by the shadow Minister; the second is for the Government to take a short consultation period, after having accepted the amendment, to ensure that everything is in order.
I think we might be dancing on the head of a pin. We all want these species to be brought into the scope of the Bill, and we need to work out the best way of doing that. From my point of view, having, ahead of the conference, a piece of legislation that bans trade not only in elephant ivory but in that of other species would send a powerful message, and a stronger one than if the Bill included only elephant ivory.
I also rise to support amendment 11. It is imperative that there is no knock-on effect and endangerment of further species as a result of the Bill. We heard extremely clear evidence from experts that that is exactly what would happen. We must ensure that it is all-encompassing. We have heard already that expert opinion says that that can be done timeously and so as not to interfere with the announcement at the conference later this year. A short consultation period can take place.
Where there is a will, there is definitely a way in the case of the Bill. I also put on record that although announcements at conferences are extremely welcome and important, they are not as important to me and to the Scottish National party as protecting a number of endangered species for future generations.
I also rise to support amendment 11. I am afraid I do not have the erudition about some of the species in question that other hon. Members have. However, I think it was clear on Second Reading and is clear from other evidence that there is widespread support for ensuring that the Bill encompasses the whole range of ivory, so that there are no knock-on effects and we can protect as wide a group of species as possible, with the aim of protecting wildlife. So I urge the Minister to—
The Chair adjourned the Committee without Question put (Standing Order No. 88).
Adjourned till this day at Two o’clock.