Committee (1st Day) (Continued)
12: Clause 2, page 2, line 25, at end insert “, which must be an institution with expertise in identifying and dating objects incorporating or made entirely from ivory”
My Lords, Clause 2 currently leaves to the Secretary of State the choice of bodies that will perform the task of authorising the issue of exemption certificates. However, it is imperative that the Secretary of State appoints bodies that represent specialists who know their subjects and have expertise in their field. This amendment will require the Secretary of State to appoint only institutions which have expertise in objects that contain ivory. The incorporation of this requirement would also protect the Secretary of State from an accusation that he has appointed an inappropriate body. I beg to move.
My Lords, my noble friend’s amendment seeks to define the type of institution the Secretary of State can prescribe to provide advice under Clause 2, and I hope to reassure my noble friend that this will not be required.
Subsection (5) confers a delegated power for the Secretary of State to prescribe a list of advisory institutions. Any assessment of an item’s artistic, cultural or historical value is to a degree subjective. This is why the Secretary of State will seek the advice of the country’s foremost experts in different forms of ivory items, from the UK’s most prestigious museums. Indeed, eminent institutions such as the Victoria and Albert Museum and the British Museum, which have world-renowned expertise in areas and periods of artistic history relevant to ivory artefacts, have already confirmed that they would like to be involved. These institutions provide advice to government on matters of pre-eminence and national importance, for instance under the export licensing regime for cultural objects. They will also be required to ensure that their best-qualified experts are engaged to assess the items.
If needed, the Secretary of State may, over time, update regulations prescribing advisory institutions if, for example, a source of expertise moves from an institution or a new centre of expertise emerges. Under no circumstances would we prescribe an institution which did not hold the relevant expertise. I hope that with that reassurance about expertise my noble friend will withdraw his amendment.
Amendment 12 withdrawn.
Clause 2 agreed.
Clause 3: Applications for exemption certificates
13: Clause 3, page 2, line 38, at end insert “but with no requirement to proceed with the dealing in the item in the future”
My Lords, I will speak to Amendments 13 and 28. The Bill appears to require an exemption certificate application to be accompanied by an expectation that “dealing” in an item is due to occur. This expectation is created by subsection (1)(f), which requires an applicant to provide information about,
“any dealing in the item that is expected to take place”.
From this wording it is not entirely clear whether it is a strict requirement of the Bill that dealing must happen. An owner of an object may wish to obtain a certificate as a precaution, so that if they decide to offer it for sale in the future they will already have all the necessary paperwork in place. Furthermore, for any number of reasons, the owner of an item may subsequently decide, having obtained a certificate, that he does not wish to proceed with the sale.
I realise that the word “any” in “any dealing” could suggest that information about dealing needs to be provided only when such information exists, but this amendment makes it absolutely clear that to obtain a certificate an item does not need to be offered for sale or sold, least of all to the museum or institution advising on the exemption certificate, with all the conflicts of interest that could lead to. In summary, therefore, it should be possible to gain an exemption certificate for an item that may end up remaining in a private collection.
I turn to Amendment 28. Clause 9(1) refers explicitly to the sale of an ivory item to a museum, but unlike the definitions of “dealing” in Clause 1 it makes no specific reference to “offering for sale”. Clearly, no sale to a museum can occur without an object having been offered to that museum. The problem with the current phrasing is that it makes it appear as though an exemption applies only if a sale is “concluded”. Until an agreement is reached, there can be no certainty that an object will be acquired by a museum: the trustees may be asked for approval and decline to give it. Often the whole process can be very protracted and negotiations can break down at any stage. The purpose of the amendment, therefore, is to clarify that if an ivory item is offered to a museum the seller is under no obligation to complete a sale. If the meaning of subsection (1) is that the seller must complete the sale regardless of the sum that the museum is prepared to pay, no museum would offer more than the barest minimum. I beg to move.
My Lords, Amendments 13 and 28 appear in the name of my noble friend Lord De Mauley. Their intention is to clarify that where an item has an exemption certificate or has been registered, perhaps—but not necessarily—with the intention of selling the item, there is no obligation to proceed with a sale. I assure him that there will be no such obligations on applicants. Indeed, we recognise that there may be many reasons for an application. For example, we anticipate that owners of certain items may wish to apply for an exemption certificate before valuation for insurance purposes, not for any sale.
The primary intention of the registration and exemption certificate processes is to ensure that items meet the criteria for the applicable exemption before they can be subject to commercial dealing, but there is no obligation to undertake any commercial transaction following certification or registration. It is also worth bearing in mind that neither certification nor registration is time limited and can exist over a long period. In the light of this clarification, I hope that my noble friend will feel able to withdraw his amendment.
Amendment 13 withdrawn.
Clause 3 agreed.
Clause 4: Further provision about exemption certificates
14: Clause 4, page 4, line 11, at end insert—
“(5A) Subject to subsection (5B), the Secretary of State may not issue a replacement certificate in respect of an item if a replacement certificate has previously been issued in respect of the same item.(5B) Subsection (5A) does not apply where—(a) an exemption certificate has been applied for under section 3, and issued, in respect of the item since the last instance of a replacement certificate being issued,(b) the owner of the item has changed since the last instance of a replacement certificate being issued, or(c) it seems to the Secretary of State that there are extraneous circumstances that warrant issuing a further replacement certificate.”Member’s explanatory statement
This amendment creates a limit of one replacement certificate being issued for an item. After one certificate is issued, a further replacement certificate can be issued only if a new certificate is applied for under section 3, or if the owner of the item changes, or if there are extraneous circumstances that warrant issuing a replacement certificate.
My Lords, I am moving Amendment 14, on the subject of replacement certificates, because we believe that more safeguards are needed, since the Bill would allow multiple certificates to be issued for a particular item, and these could then be used to sell similar items illegally. We feel strongly that no loopholes should be allowed and that nothing in the Bill could result in unscrupulous dealers misusing these certificates. Given that the point of the Bill is to stop illegal ivory trading, and that—as we have discussed —unscrupulous people will exploit loopholes, it is important that these rules are extremely tight.
When this was discussed in the other place, the Minister made the point that because exemption certificates would apply only to unique peices—and therefore a limited number—there was an exceedingly low risk that a certificate, which will include a photograph, could be used fraudulently for another item. So far, so good, but this does not protect against the production of replicas, so we could end up with something that looks very similar to the photograph but is not the original item: you would have a replica item with a duplicate certificate.
Although such activity would of course be an offence under the Fraud Act 2006, and subject to criminal sanctions or a custodial sentence, this may well not deter those involved in the illegal ivory trade, where we know that millions of imitation antique pieces are already floating around and making very high profits.
This is really just a probing amendment to learn from the Minister how this will work in practice and whether he can provide reassurance that there are sufficient safeguards built into the system of issuing replacement certificates to prevent fraudulent duplication of them. I beg to move the amendment.
My Lords, I do not fully understand the desire of the noble Baroness, Lady Jones, to limit the number of times the duplicate exemption certificate can be applied for. In the internet age, any sensible person would want to check that a paper certificate was genuine and would perhaps ask for confirmation from Defra, quoting the certificate’s unique reference code. Perhaps the Minister can confirm that. If someone loses his passport more than once, I would imagine that he could still obtain a replacement from Her Majesty’s Passport Office. I am not sure why replacing an ivory exemption certificate deserves a more limited approach. Surely, whether the piece of paper is the first one issued or a second replacement, each will show the same information, presumably with the same unique reference code and image of the item. It is the fact that the item has been exempted, and that the piece of paper indicates as much, that is important.
I am not clear what misdemeanour would occur if, in error, an object owner found that they had two certificates for the same object. Whether second duplicates can or cannot be issued would not stop a criminal from attempting to produce a falsified certificate.
My Lords, the noble Baroness’s amendment recognises an important issue: to ensure that we avoid any loopholes that could be exploited by those wishing to circumvent the ivory ban and continue to trade ivory illegally. I understand the concern that an individual may exploit the provision included in the Bill to issue replacement exemption certificates under the exemption for the rarest and most important example of its type. The concern is that an individual might fraudulently use replacement exemption certificates for non-exempt items, and I am clearly interested in ensuring that that is not possible. But I say to the noble Baroness and my noble friend Lord De Mauley that such an action would be an offence under the Fraud Act 2006 and may be subject to criminal sanctions—a custodial sentence or a criminal fine.
The Bill is clear that a replacement certificate will be issued only if the original has been lost, the original was not passed on by the original owner when the item was sold, or for any other reason that the Animal and Plant Health Agency acting on behalf of the Secretary of State considers appropriate. I reassure the noble Baroness that the process that an individual must follow to request a replacement certificate will be carefully developed with APHA to avoid any potential loopholes that could be exploited by unscrupulous individuals.
First, the owner will need to declare why a replacement is required. APHA should also be able to check the application against a database of exempt items. Secondly, a unique identification number will be included on the certificate which associates it with the exempt item. Certificates will include photographs of the item as originally submitted when applying for the exemption and a narrative description of the item. Given the nature of items exempted under this category, it is highly unlikely that there would be another item of such close similarity that it could reasonably be taken to be covered by a certificate issued for another item. Officials will be working with APHA because this is an area that we are clear on. We do not want to find any loopholes in what we do. I am grateful to the noble Baroness for raising this issue, but we are very much alive to the need to ensure that the replacement certificate regime is robust and, at the same time, that replacements can be issued.
I thank the Minister and the noble Lord, Lord De Mauley, for those comments. I am grateful for the Minister’s reassurance. The situation that we envisaged is that there would be more than one certificate and more than one item that looked similar in the market. There would then be the problem of identifying which was the original and which was the fake. As we develop our exemption certificate regime, I can imagine that they will have some kudos abroad. They will not just be used for enforcement under our regime but could give some additional value to properties that are traded in other countries as proof of the item being of the highest quality and so forth. I would like to look a little more at the Minister’s comments, but I will not pursue this any further today so I beg leave to withdraw the amendment.
Amendment 14 withdrawn.
Clause 4 agreed.
Clause 5: Fresh applications and appeals
15: Clause 5, page 4, line 34, at end insert—
( ) Subsection (1)(b) does not apply if an appeal has already been made against the decision to refuse an application for an exemption certificate or to revoke an exemption certificate, and the original decision was upheld.Member’s explanatory statement
This amendment would permit a person to appeal against a decision to refuse an application for an exemption certificate or to revoke an exemption certificate only once.
As drafted, the Bill allows an infinite number of appeals. This concern was raised specifically by the David Shepherd Wildlife Foundation, which argued the case for deleting the unprecedented and unnecessary appeals provision. That is what we have tried to do with this amendment.
The amendment would streamline the appeals provisions for sales exemptions for items of outstanding artistic or cultural value. It would permit applicants a formal right of appeal against the original decision to reject an application only once. If the appeal was unsuccessful, the applicant would be able to make a fresh application, and pay the appropriate fee, if they wished an item to be considered again.
The cost of an application fee is intended to be cost neutral. However, under the current provision, if an individual refused to accept the decision that an item does not qualify for an exemption, they could effectively frustrate the appeals process with successive appeals, each of which would require detailed consideration and a response. If a number of people submitted repeated appeals, that would inevitably have implications for resources and could have a detrimental impact on other activities, including enforcement of the regime. We believe that limiting the right to appeal against a decision to only once is sufficient to protect individuals’ property rights. There are many examples across government where decisions on applications can be appealed only once, including visa applications and school places. I am sure that there are many more. Furthermore, this would avoid establishing a new precedent under UK law that would introduce a convoluted formal appeal process for what is in effect a specialised form of wildlife trade licensing.
There is no appeal system for any other wildlife trade licence issued in the UK, including those under CITES, let alone anything wider than that. We therefore hope that the Committee will feel able to support our amendment.
I have a quick comment on Amendment 16 in this group. On the face of it, I do not have a problem with this amendment. I would have thought that it made sense for appeals to be heard by someone with expertise, and it may be that the Minister is able to reassure noble Lords on this issue so that they do not feel it necessary to pursue the amendment. I beg to move.
My Lords, I shall speak to both amendments in this group but deal with Amendment 16 first. Rightly, the Bill makes provision for circumstances where the owner of an item disagrees with the decision of the Secretary of State to refuse to grant an exemption certificate. Under the existing wording, the Secretary of State could simply appoint a lawyer with no knowledge of, or expertise in, ivory artefacts in order to determine the appeal. The intention of the amendment is to make sure that the appeal is heard by someone who has expertise and experience in assessing ivory works of art. An understanding of cultural property and of the methods used by curators or art market professionals to decide on the authenticity and age of such objects would be vital skills for the appointee. He or she would need to understand the reasons for the rejection and ask all the right questions. It would be unjust for all concerned if the person appointed to this role is someone unfamiliar with the relevant issues.
I turn to Amendment 15, tabled by the noble Baroness, Lady Jones. To my mind, refusing further appeals beyond the first appears to fly in the face of natural justice. Take an object such as one which an applicant understood had been owned by a famous person such as Admiral Nelson. At the time the first appeal was heard, it may be that the extent and quality of the evidence in the possession of the applicant to back up the purported provenance was deemed insufficient. Further irrefutable evidence may later come to light. Surely the applicant should be given the opportunity to present this information a second time.
My Lords, I thank the noble Baroness for her amendment, which would prevent a person applying for a Clause 5 appeal more than once. As drafted, the Bill will allow applicants to appeal a decision either to revoke or refuse the issuing of an exemption certificate for a pre-1918 ivory item that is a rare and important example of its type, so that it can be protected by an exemption. Clause 5 will enable the details of the grounds to be set out in secondary legislation. Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee has questioned this approach and recommended that more details should be set out in the Bill. We are grateful to the Committee for its consideration of the Bill. We are carefully considering its recommendations and will respond in due course and, if necessary, seek to amend the Bill on Report.
We would of course be concerned if unnecessary, vexatious or frivolous appeals undermine confidence in the exemption certificate regime or create uncertainty for those wishing to submit their own applications. However, a person who launched an unsuccessful appeal would not be able to apply for a second appeal if he or she simply disliked the decision of the appeal body. There would have to be a legal basis for the second appeal, such as an alleged material error in the appeal body’s decision. In such cases, it would be appropriate for an application for judicial review to be made before the court, so that the court can hear the case against the appeal body’s decision. That would be the appropriate judicial process, as opposed to restricting one’s right of appeal on the face of the Bill.
The grounds on which a failed applicant could make an appeal application will be set out in legislation. I would refer, as an example, to paragraph 2(6) of Schedule 1, where a person questioning the decision to impose a monetary civil sanction would have to ensure that a ground of appeal has been satisfied. The grounds of appeal would include circumstances where the decision was based on an error of fact, was wrong in law or was unreasonable.
My noble friend Lord De Mauley’s amendment would provide that appeals may be heard only by qualified experts in the item that is subject to the appeal. Such matters may be set out in regulation, but the Delegated Powers and Regulatory Reform Committee has recommended that an appeal body should be named on the face of the Bill. As I have already mentioned, we are carefully considering the Committee’s report and will respond before Report. I should say—I think this is an important point for my noble friend—that the appeal body will be able to call on evidence from experts.
The amendment may also limit the options around granting the appeal role to an existing body. Setting up a new independent appeal body purely to hear appeals under Clause 5 would be disproportionate and costly, in our view, and would push up the overall costs of the ivory regime.
I hope that I have reassured the noble Baroness about the legal position on the matter of an appeal in this instance and that she will feel able to withdraw her amendment.
My Lords, I am very grateful to the Minister for that response. He has gone some way to reassuring me that appeals will have to be legally watertight and based on fact—that is very helpful. I look forward to the Minister coming back with a further report from the Delegated Powers and Regulatory Reform Committee. On that basis, I beg leave to withdraw the amendment.
Amendment 15 withdrawn.
Amendment 16 not moved.
Clause 5 agreed.
Clause 6: Pre-1918 portrait miniatures
17: Clause 6, page 5, line 4, leave out “with a surface area of no more than 320cm²”
Member’s explanatory statement
Not all miniatures would be covered by this limit. This amendment would allow more flexibility in judging miniatures.
My Lords, this amendment and Amendment 18, which are grouped together with a number of other amendments, are succinctly explained thanks to the new custom in your Lordships’ House of being able to add a sentence of explanation. As the one for Amendment 17 says:
“Not all miniatures would be covered by this limit. This amendment would allow more flexibility in judging miniatures”.
There is clearly going to be a considerable amount of bureaucracy following the enactment of the Bill. Anything that can be done to reduce that must be good for everyone, and good for the public purse. If we are going to have experts—and it will only be experts—looking at miniatures, and they have to worry because a miniature is 325 square centimetres rather than 320, that really is preposterous. Therefore, I suggest that this is a constructive, simple and sensible amendment.
Similarly with Amendment 18, we have this arbitrary figure of 10% in the Bill. Brief reference has already been made in your Lordships’ House today to a recent case that came about as a result of a presidential edict in another country. I refer to a wonderful piece of 18th century Chippendale furniture from which, because it fell foul of the United States’ regulations, the owner felt obliged, in submitting it for auction to one of the major London auction houses—I think it was Christie’s—to remove the ivory escutcheons and substitute celluloid. It was the desecration of one of the finest pieces of English furniture of the 18th century. What an act of vandalism—an act committed because of the perception of regulations in another country. The consequence was that the piece failed to sell, although when it was sold some years before it was recorded as the most expensive piece of English 18th century furniture ever sold.
Reference has been made in our debates to some of the wonderful inlaid boxes from India. Many of them came from Goa, the Portuguese enclave. They are inlaid with ivory, and some are incredibly intricate and beautiful. But how do you really determine whether the volume of ivory is 10% or not? My noble friend Lord De Mauley has tabled a more sensible amendment than mine, given that he wants to make the figure 50%. I feel slightly ashamed of my own modesty in putting down only 20%, and applaud his adventurism in putting down 50%. However, we are dealing with a Government who seem hardly sympathetic to aesthetic considerations, who seem to be in the process of branding themselves as desecrators and champions of vandalism.
The figure of 20% is indeed very modest. Are we really going to endanger some fine artefacts from another age, albeit not necessarily of museum quality, because they have ivory from an elephant long, long dead? Here is a case, if ever there was one, of the best being the enemy of the good. Just imagine if we said that in our churches only monuments by Rysbrack and Nollekens would be allowed to remain from the 18th century and the others would have to go. That would be absurd. Why, therefore, do we have to say that something which may not be superlative but is still incredibly good, still part of our history, should be endangered by this arbitrary limit?
I hope that some sympathetic consideration will be given to these two points as well as to the others covered in the amendments which have been grouped with my two amendments. I like to think that we are a civilised country, and I feel that this is a civilised House. I do not want us to put on to the statute book something that, in fact, runs counter to civilisation. I beg to move.
My Lords, I should like to speak to Amendments 18, 19, 21, 22 and 23 in this group. I will not deal at length with Amendment 17 moved by my noble friend except to say that I have considerable sympathy with it.
Starting with Amendments 18 and 19, the 10% threshold chosen for the Clause 7 exemption is another major aspect of the Bill that has caused enormous concern among those who handle antiques. In Committee in the other place, the Minister, David Rutley, rightly explained that objects,
“such as inlaid furniture or a dish or a teapot with a small ivory handle are not valued on the basis of their ivory content. Further, in such pieces, the ivory is incidental and integral to the item. It cannot be easily removed, so it is not vulnerable to recarving”.—[Official Report, Commons, Ivory Bill Committee, 14/6/18; col. 92.]
The Minister also made it clear at column 98 that the Government have no intention of unduly affecting artistic and cultural heritage.
There are plenty of objects with, say, 20% or 30% ivory content, and thus where ivory is still not the predominant material, such as inlaid or veneered Indian boxes and antique silver coffee pots, to which precisely the same characteristics apply; they are not valued on the basis of their ivory content. The ivory is incidental and integral to the item and thus not vulnerable to recarving. The Minister in the other place also said:
“It was refreshing and encouraging to hear in evidence that the 20% threshold will work for the vast majority of musical instruments, and that the enforcement agencies feel comfortable that that is a way to take the process forward”.—[Official Report, Commons, Ivory Bill Committee, 14/6/18; col. 109.]
It is therefore a mystery why the Government have opted for a 10% threshold for one group of items and 20% for another. It is inconsistent and it is illogical.
What are the particular features of an object such as an inlaid Georgian tea caddy with 12% ivory inlay that renders it any more likely to be reused or valued for its ivory content than a musical instrument such as a baroque lute containing the same proportion of decorative ivory inlay? In the Second Reading debate in the other place and in the Public Bill Committee sittings, no examples were given by the Minister there of known cases where antique objects inlaid with ivory had been valued based on their ivory content or had been bought for the purpose of having their ivory removed. Neither do I believe were Art Deco bronze and ivory sculptures cited, nor were antique silver tea and coffee services demonstrated to have been sold for these purposes. In fact no evidence has been brought forward by anyone in any of the debates to suggest that where ivory represents less than half of the volume of a historical object, it contributes to poaching.
To discover whether items made from a mixture of ivory and other materials are being bought by people from the Far East, it would be helpful to have some data. Unfortunately, as I have already mentioned, the readily accessible UK export data for ivory held by the CITES secretariat distinguishes only piano keys from other carved items, so we do not know how many inlaid wooden boxes or bronze and ivory sculptures are being exported to China, but I would hazard a guess that the number is very low. It would be surprising if the Animal and Plant Health Agency had evidence of antique items where ivory is not the principal material being purchased in vast numbers and at prices well above the value of their ivory content, with a view to removing the ivory in China and selling it at the low price commanded by second-hand ivory.
The witness from the International Fund for Animal Welfare to the Bill Committee in the other place spoke on 12 June 2018 at column 14 and quoted $450 per kg as the price of raw ivory. A Georgian sterling silver tea pot worth £2,000 might contain an ivory handle weighing 80 grams. Using the IFAW figure, that 80 grams would currently be worth £36. As an old and pre-shaped piece, it would be worth even less, perhaps only £10. Why would someone pay £2,000 for the purpose of acquiring ivory worth just £10? If they removed the ivory they would also damage the integrity, and thus reduce the value, of the item for which they had paid £2,000.
How should we respond to the grandmother who owns a genuine early Victorian silver coffee pot with an original ivory handle or insulator, who is prevented from selling it and using the £1,800 proceeds to contribute to her grandchild’s university education? No one has demonstrated how a genuine antique of this nature has any connection to the poaching of elephants, so why should its owner be penalised in this way? The Minister in the other place referred in Committee at column 92 to the federal system in the US having a 50% by volume limit combined with a 200 gram weight threshold. It is understood that this restriction applies only in respect of objects that are not antiques.
For interstate sales of genuine antiques there is no de minimis requirement at all. A visual inspection of an object will usually be all that is necessary to decide whether the ivory content falls above or below a 50% threshold. A 50% cut-off would therefore in fact lead to better levels of compliance by the public. In contrast, a 10% threshold falls right across the middle of the range of ivory contents found in boxes decorated with small pieces of ivory inlay. That 10% means that both the owners of these items and enforcement officers will invariably be required to perform complex calculations to determine the proportion of ivory they contain. There will be uncertainty as to the accuracy of the assessments. All of this is entirely unnecessary because regardless of whether the ivory content falls above or below 10%, small slithers of inlay have no possible re use. It should be noted that the cases where wildlife groups have questioned the age of ivory have always focused on solid ivory carvings and not on objects such as bronze and ivory sculptures or measuring instruments where ivory does not represent the majority material.
While on this subject, I must comment on the misleading information contained in the report recently prepared by the pressure group Avaaz and referred to at Second Reading by the noble Baroness, Lady Jones of Whitchurch. The report involved the radiocarbon dating of 109 solid ivory trinkets acquired from 10 European countries. It found that three-quarters of the items tested were dated after 1947. Its sampling and data presentation left a great many questions unanswered. In fact, it is doubtful whether its approach to data interpretation would have passed the scrutiny of a GCSE statistics candidate. For example, the ivory items chosen were clearly not selected at random because had that been the case, antique cutlery, inlaid boxes or even piano keys would have featured in the results.
The group made one purchase in the Republic of Ireland and managed to conclude on a bar chart that 100% of the ivory in Ireland is antique. Furthermore, not one of the trinkets tested represented the types of historical objects anyone would wish to see exempted from the Bill. Although described in the report as “fake antiques”, these objects were not pretending to be anything other than the bangles, beads and unsophisticated tourist mementoes that they clearly were. They certainly would not have been described as being of artistic, cultural or historical merit by an experienced professional antiques dealer. For the UK, just five suspicious-looking carvings, including two letter openers, were tested. The most recent of all these was found to date from between 1954 and 1956, a time when there were no restrictions on the cross-border trade in ivory, and British tourists to Africa and the Far East regularly returned from their holidays with ivory souvenirs.
I mention all of this in the context of the de minimis concept to underline that it would be far more effective if the Bill were to focus on solid ivory carvings and objects where ivory is the predominant material. No one has demonstrated problems with objects where ivory is incorporated with other old materials. The dating of such items is easier because the ivory can be judged in the context of the age, craftsmanship, wear and style exhibited by the other materials and the object as a whole. I should also ask: just how is this problematic 10% threshold realistically going to be policed? The register envisaged by Clause 10 will contain many thousands of images of antiques whose ivory content will sway around the 10% mark. A wildlife crime officer sitting at a desk will be unable to make a compliance judgement based solely on a couple of images posted online. Every time officers view one of the many borderline cases, will they be compelled to dispatch an accredited civilian officer to check it out? Would that really be a sensible use of resources for wildlife crime personnel? Choosing a threshold that results in fewer borderline cases would surely represent a much better approach as it would enable officers to direct their energies towards the solid ivory trinkets that represent the area of higher risk.
In summary, so far as the UK is concerned objects comprising less than 50% ivory are no more likely to pose a threat to elephants in the wild than objects containing less than 10% ivory, and the higher threshold would enable a more focused deployment of resources. In France, 20% is the level below which items containing ivory do not need a sales permit. Those with more than 20% ivory need a permit confirming that the items date from before 1947. New York state has a more restrictive arrangement, but also uses a cut-off of 20%. All these other countries seem comfortable with assessing a 20% cut-off and the Minister is happy to use 20% for musical instruments. If my noble friend finds it hard to go over 50%, it would at least bring consistency to what is already a complex piece of legislation if both the musical instrument and Clause 7 thresholds were brought in line at 20%.
Amendment 21 relates to Clauses 7 and 8. To be valid, the exemptions for items of low ivory content and musical instruments require the owner to register them under the provisions of Clause 10. I am concerned that, as it stands, this registration requirement will cause two significant problems. The first I alluded to at Second Reading. My concern was for the many items of domestic antique furniture and other objects that contain very small amounts of ivory, for example the escutcheons around locks on a Victorian mahogany chest of drawers or a small sliver of ivory running around the edges of a jewellery box. Many of the owners of such items could well sell them without even noticing these features and yet, if they did so without registering them, they would be breaking the law.
The Minister’s response to this, in Hansard on 17 July 2018, at col. 1197, was to explain, if I understood him correctly, that the package of penalties would be tailored to the level of misdemeanour. The implication of this was that the penalties would be low for breaches that represented genuine mistake and complete ignorance. With respect to my noble friend, I do not believe it is a wise use of officers’ time and Defra’s or the police’s resources to have to deal with such cases. Whether the fine is £50 or £5,000, forms still have to be completed and statements taken. The hapless people who have made the error will feel aggrieved and resentful, end up wasting a great deal of time, and to what end? It is all because an antique box with a tiny bit of ivory, similar to countless other boxes, was not registered on a government database.
The second problem with registration is that it has the potential to result in the destruction of low-value furnishing items, such as antique furniture acquired by businesses that carry out house clearances. If the charge for registration were set at the current fee level for CITES re-export permits, which is between £37 and £59, it would prove a significant deterrent to the sale of items such as a Georgian toilet mirror with small amounts of ivory inlay and ivory knobs. Ordinarily such an item could fetch just £100 to £150 and bring in a profit of perhaps £50. The time taken by a dealer or auctioneer to register it and the charge for doing so would wipe out their profit and be wholly disproportionate to the problem the Bill aims to address, particularly when these types of items are so remote from anything connected to the poaching of elephants.
If registration proves financially unviable for the seller or their agent, to comply with the law such antiques would need to have the ivory prised from them and be replaced with another material. To be done properly would involve the work of a skilled craftsman, the cost of which would not be recouped from the proceeds of sale of the object—besides which the object would lose its integrity. A toilet mirror with ivory escutcheons on its integral drawers would probably sell for the same price as one featuring decorative wooden inlays and ebony knobs. The one featuring ivory could end up being thrown away by the owner or the dealer because the cost of selling it would outweigh the profit. Is discarding such items truly necessary or appropriate?
Some years ago, there was a campaign to educate the public on the green or environmentally friendly credentials of owning and reusing antique furniture. It went under the title “Antiques are Green”. Work was commissioned to look into the environmental impact of new and antique furniture. The results showed that a modern chest of drawers has a carbon impact 16 times higher than its 1830s antique equivalent. Surely we, and Defra in particular, should be encouraging green behaviour in respect of these items and certainly not forcing them into landfill.
There is clearly no link between offering for sale in the United Kingdom an 1830s chest of drawers containing tiny ivory elements and demand in China for ivory as a commodity, nor is there a link with the poaching of elephants in Africa. As my noble friend Lady Rawlings said at Second Reading, Chinese buyers are unfortunately not drawn to English antique furniture, so they are not buying such items for their own market. Besides, why would anyone pay several hundred pounds to ship to Hong Kong a table for which they may only have paid £200 to an antique dealer in the UK? Dispensing with the need to register those Clause 7 and 8 objects and musical instruments that incorporate very small amounts of ivory would go some way towards addressing the two problems I have described.
Turning to Amendment 22, when assessing the proportion or ivory contained in an object, Clause 7(1)(b) requires the ivory to be “integral” to the piece. “Integral” is then defined as being when the ivory cannot,
“be removed from the item without difficulty or without damaging the item”.
The impact would be that those ivory components that can be readily removed, or were intentionally designed to be removed and reattached, would be treated as separate from the rest of an item, even if the ivory element overall amounted to just 5% of the whole. The removable components would presumably be considered as substantially or even 100% ivory in their own right and would not benefit from the Clause 7 exemption. If the item is one of historical value, but not necessarily of outstandingly high historical value, it would not be saleable without the detachable ivory elements being removed and its integrity compromised.
This seems to me to be mildly absurd. This definition of “integral” is far removed from how the term is normally understood. Take the case of the small ivory knob on an antique mercury barometer, used both to adjust the Vernier on the mercury scale and to adjust the bag of mercury in the reservoir at the foot of the barometer. This is designed as an essential and, in my use of the word, integral part of the original object. The same would apply to the thin ivory lids on the small wooden containers that fit snugly into the compartments of a 19th-century Indian sandalwood sewing box. Those components are no less integral to those pieces than were the inlaid letters in the Chippendale commode I referred to earlier. What is important is that they should be original to the piece.
I fail to see the purpose of the restriction as drafted in the Bill. Is there some fear that components that are detachable are being replaced with modern alternatives? If so, what is the evidence of this? If the knobs or lids I have referred to are no longer attached to the original object for which they were made and are being sold separately, I accept that they should be treated as ivory objects in their own right, but where it is clear they form part of a single object of low ivory content, all the ivory and the entire object should be included in the calculations for de minimis purposes.
On Amendment 23, I have already highlighted the problems that arise from the choice of a low de minimis threshold. Irrespective of the precise drawing of that line, there will always be difficulties in accurately computing the proportion of ivory found in complex and unusually shaped antique objects. Some may contain voids, the volume of which would be impossible to ascertain without taking the object apart and probably damaging it. In the case of a silver fork with an ivory handle, the metal from the prongs would fit into a drilled hole the size of which can vary considerably between such items and be impossible to ascertain without forcing the two materials apart.
In the art world, both the physical condition of an object and the extent to which its components are original are crucial factors. In this year when we celebrate the 300th anniversary of the birth of the great cabinet-maker Thomas Chippendale, there has been no more painful example of the importance of these factors than the recent revelation that the original inlaid ivory lettering was prised out of a Chippendale cabinet and replaced by ivorine prior to offering it for sale. My noble friend referred to that earlier. In the event, the piece valued at several million pounds failed to sell. That the climate of uncertainty and panic caused by overzealous legislatures should make the owner of a masterpiece of that nature consider such an action is frightening and should serve as a flavour of the problems that lie ahead if we rush into this. Even if no physical damage was caused by the removal process, the damage to the integrity of the piece represented nothing short of vandalism, as my noble friend said.
I hope that the Minister would thus accept that, in order to ascertain the proportion of ivory in an object, it should not be necessary for anyone even to consider carrying out any act that could run the risk of irreversibly damaging it. It should be accepted that this should apply to both the owner and any officer checking their calculations. This could mean that the actual proportion of ivory and the readily measurable proportion sometimes differ, but I see no reason why this should present a problem.
My Lords, when I spoke earlier on Amendment 5, I meant to declare an interest in that my family’s collection of works of art contains many objects containing ivory. That is true of all historic collections. In a sense, it is a non-interest because neither my family nor I have any intention to sell these objects, so I have no direct financial interest in the outcome of the Bill.
However, I would like to comment in some detail on Amendment 17, moved by the noble Lord, Lord Cormack. The Government have accepted that portrait miniatures are a definable category and should be treated separately, as they are in the Bill, but I cannot understand why they have been so precise on the definition of the size. This morning, I went to look at a miniature in our collection that is considerably more than 320 square centimetres in size. In any event, as we know, all portrait miniatures are really valued by the quality of the painting or identity of the sitter, rather than the very limited amount of ivory on which it is painted.
I realise that the Minister at the Dispatch Box has little flexibility on any of these matters, but no principle is involved in the amendment. The principle of a portrait miniature has been accepted, so it seems strange that what is in effect a technical definition of size should be on the face of the Bill. For that reason, I hope that the Minister will feel able at least to say that he, with his officials, will reconsider the definition of size. If it would be helpful, I would be happy to supply details of the object I was looking at this morning.
My Lords, in speaking to the amendment I will speak to Amendments 20, 29 and 32, which are in my name. My suggestion is that the requirement to register Section 7 exemptions—that is, objects with the de minimis amount of ivory in them, which are not made of ivory per se but are ornamented with it—should be removed. I should declare that I am also the owner of a few ivory objects but, as a mere Baron, the extent and quantity of my ivory objects is probably less than that of most Dukes.
I hope that your Lordships will forgive me, but I want to go back to the Bill and look at the Explanatory Notes in particular, because sometimes we lose sight of what we are trying to do and why. Paragraph 5 states:
“The aim of the Ivory Bill is to help conserve elephant populations, specifically by reducing poaching, through significantly limiting the legal market for ivory in the UK. This is intended to reduce demand for ivory both within the UK, and overseas through the application of the sales ban to re-exports of ivory from the UK. This aim is in line with the 2017 Conservative Manifesto commitment to ‘protect[ing] rare species’”.
I am sure that the noble Baroness, Lady Jones, can subscribe to that, as well as the noble Baronesses on the Liberal Front Bench and equally, I would hope, the Minister. I am confident that he can. The end of the next paragraph states:
“Finally, the ivory ban will demonstrate the UK does not consider commercial activities in any ivory that could fuel poaching to be acceptable and it sends a message that similar actions should be taken globally”.
I do not think that anybody would take exception to that either. It seems that there is a direct correlation between the sale of ivory and poaching.
Finally, the end of paragraph 16, which talks about exemptions, states:
“Strictly-defined exemptions will therefore apply where a ban on the commercial use of items is unwarranted. This is considered to be the case when it is understood that both the continuation of sales of certain categories of items would not contribute either directly or indirectly to ivory poaching, and the intrinsic value of that item is not due to its ivory content”.
Here we have an acceptance from the Government that, in certain circumstances, some items that contain ivory do not contribute in any way to the poaching of elephants. I am as enthusiastic as anyone about preserving elephants. Equally, I am interested in old things. It seems clear that this policy begins with the proposition that we should protect elephants, then says as an instrument of policy that the way in which we wish to do that is by introducing a ban on ivory that encourages the poaching of elephants. At the same time, it also spells out expressly that certain categories of items containing ivory do not do that. I am saying that the de minimis exception does not affect the market for ivory which threatens elephants.
That being the case, what is the purpose of the registration? On the Government’s own admission, this category of items does not contribute directly or indirectly to ivory poaching. Against that background, we have an embryonic system whose scope is very unclear. We have heard talk about 2 million to 3 million items, possibly more, that might fall within this category. Of course, not all of them will be sold—certainly not all at once—but we are not talking about a few rich and rare items, such as Byzantine ivories. We are talking about a very substantial quantity of, for want of a better way of putting it, household goods across the country. Given that the value of many of these items is small, as pointed out by the noble Lord, Lord De Mauley, the cost of registration will inevitably be big, relatively speaking.
I know from the Minister that the system and how it would work has not yet been finalised, but it will be expensive, time-consuming, bureaucratic and potentially iconoclastic. We have heard how items will be damaged or have the ivory removed if they are valuable. I cry no crocodile tears for the very rich man, whoever he was, who tried to sell the Chippendale cabinet in New York and found himself frustrated because it did not make as much as he wanted. If you buy works of art as an investment, they may go up or down in value, like all investments. The vandalism of that particular piece of furniture is a tragedy because, once you remove the original aspects, you degrade the inherent quality and characteristics. It is no good saying that a piece of furniture adapted in this way is the same as it was before. That is like saying that an original work of art is just the same as a photograph of it. It is not. This proposition intrudes into people’s ordinary lives. The other problem, as has been touched on, is that a lot of items in this category—such as chests of drawers with escutcheons or boxes with ivory inlay—are effectively, if not actually, the same. So, the argument for registration so that you can trace items will be more or less impossible in practice, even if it were worth doing.
Finally, you could say that at least we will know whether ivory is capable of being sold lawfully, but that is a pretty thin argument. If you can measure it once, you can measure it twice. Given the context and the fact that these items, by the Government’s own admission, do not contribute to the poaching of elephants, I also wonder whether it may be in breach of Article 1 of Protocol 1 to the European Convention on Human Rights:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions”.
I would have thought that being told that you had to do this to sell some of your household possessions is pretty close to a breach, if not already so. Echoing comments made on both of the main Front Benches, I am worried that a bit of collateral damage here is thought to be all right somehow. As I have said, I am as enthusiastic as anybody about preserving the elephants. I think, however, that it also matters that these items should not be indiscriminately and pointlessly put at risk and possibly destroyed or damaged. It is like a warlord saying, “We have got to take out that particular strongpoint in order to win the battle. If we happen to zap a lot of innocent civilians at the same time, it does not really matter. The end justifies the means”. I do not think that is right, and I think we need to be a bit more subtle in our thinking and sophisticated in our approach to this. This kind of “New lamps for old” attitude does not seem to fit the case of the world we are in. I would like to think that we should remove the registration requirement, not least because it seems to be a classic case of “de minimis non curat lex”.
My Lords, I will briefly comment on Amendment 17, from the noble Lord, Lord Cormack, and Amendment 18. We have heard from the noble Duke, the Duke of Wellington, about items in his collection which exceed 320 square centimetres. That seems enormously restrictive. It would surely be better to remove that restriction so that anyone judging a miniature would have the ability to decide whether it was something worth saving and looking after. It is very restrictive to set the threshold at 320 square centimetres.
On Amendment 18, I think it is going to be so difficult to accurately assess the 10% threshold. I am at a slight loss to know why, if musical instruments may have up to 20% ivory content, it cannot be 20% across the board. As we have heard, in such countries as France, it is already 20%. I urge the Minister to perhaps give that a little more thought.
My Lords, I wonder if I might add another sentence or two to what we have just heard and to what I spoke about at Second Reading. I reiterate that there are several hundred thousand bows for string instruments in the United Kingdom alone. They have ivory or mammoth faces weighing less than one or two grams. Some of these will be 200 years old—
My Lords, I have listened with interest to the debate. On the subject of inlays and escutcheons, what consideration has the Minister given to having a de minimis test of thickness? If the inlay or the escutcheon is less than a certain thickness, surely it has no use for recarving at a later stage. Perhaps the Minister could write to me on that point in due course.
My Lords, I have listened to the debate this afternoon with great interest. I have received briefings from the World Wildlife Fund and from the Environmental Investigating Agency, the Born Free Foundation, the David Shepherd Wildlife Foundation, the International Fund for Animal Welfare, the Natural Resources Defense Council, Stop Ivory, Tusk Trust, the Wildlife Conservation Society and the Zoological Society of London. None of them appears to agree with the previous speakers in this debate.
On Amendment 17, the size of the miniature should be defined in the Bill. Otherwise, arguments will arise as to exactly how big a miniature can be. It is important to have this defined in the Bill and not left to some arbitrary decision.
With reference to Amendments 18 and 19, many of the artefacts listed by the noble Lord, Lord De Mauley, are simply not in the same class as musical instruments, to which we will return in a later group. Musical instruments are used on a regular basis and are the tools of a musician’s trade and are not an item of antique beauty. They may be that as well, but their main purpose is as a tool of a musician’s trade.
I am disappointed that a university student should accept their fees being paid for by their grandparents selling an antique item which could have been decorated by the body of a dead elephant. I doubt whether many of their fellow students would find this acceptable. The noble Lord, Lord Cormack, believes that we live in a civilised society. It is still a civilised society that allows 50 elephants a day to be killed for their ivory. Whatever the percentage of ivory is set at, it will need to be examined and verified. I could not support, and nobody on these Benches could support, a 20% limit and certainly not a 50% limit.
I will speak on the amendments in this group. They are amendments to Clauses 6 and 10 regarding other exemptions to the ban on ivory sales and can be categorised as reducing the criteria and extending the number of ivory items that would escape the ban. We do not agree with these amendments.
I remind noble Lords, from the Second Reading debate on the Bill, that both the Conservative Party manifesto in 2015 and our Labour manifesto in 2017 included a ban on ivory sales. In last year’s consultation, with more than 71,000 respondents, 88% supported a ban, 50% were against an exemption for musical instruments and 47% were against the de minimis or low-ivory-content dispensation. These are considerable numbers.
Against this background, the Government have listened to those who have argued coherently against the almost blanket ban on ivory sales. The Minister spoke well in response to the amendment earlier in group four proposing to extend exemptions to pre-1918 items of outstanding artistic, cultural and historical value. We agree. Clear definitions, implemented by the relevant expertise, are needed. The ivory ban is intended to curtail trade in both licit and illicit items. We think the Government have got the balance right in defining further exemptions to restrict the trade.
As regards Amendment 17, it might be helpful to remind the noble Lord, Lord Cormack, that the Government added the category of portrait miniatures to the list of exemptions in Committee in the other place. Emma Rutherford, the representative of Philip Mould and Company, who is an expert on portrait miniatures, gave evidence on how the exemption for portrait miniatures could be refined to add a size limit. She said:
“The suggestion of 6 inches by 8 inches … is very sensible. … Six inches by 8 inches will cover 90% or 95% of portrait miniatures”.—[Official Report, Commons, Ivory Bill Committee, 12/6/18; col. 45.]
Perhaps I may ask the Minister when he replies to translate that into centimetres for me. The Government have listened to that expert evidence and to other views expressed in drafting Clause 6.
It is also worth reiterating that Clause 7, the de minimis exemption, recognises that items with very low ivory content, such as inlaid furniture or a dish or a teapot with a small ivory handle, are not valued on the basis of their ivory content. Furthermore, in such pieces, the ivory is incidental and integral to the item. It cannot be easily removed, so it is not vulnerable to recarving. The 10% de minimis threshold is supported by the key non-governmental organisations, including the World Wildlife Fund, the Tusk Trust and International Fund for Animal Welfare, which recognise it as a tough and commensurate measure.
Needless to say, registration is necessary for enforcement. The proposed system places a small administrative responsibility and a small financial cost on the seller, who in turn will gain from an exemption to the ban on dealing in ivory. Crucially, by registering an item through this system, the applicant will be confirming that, to the best of their knowledge, all information provided is correct and that the item therefore meets the exemption.
The APHA, the regulator, and the police will have access to the registration system to enable them to carry out any enforcement and monitoring action necessary. The APHA will also carry out spot checks on items registered to check for accuracy and compliance. This is also a very key and necessary part of the regulations.
Amendments 20, 29 and 32 would remove the requirement to register pre-1947 items with de minimis content. As I have already expressed, I contend that this would unnecessarily extend the exemption and potentially greatly increase the volume of ivory on sale. If the item is valued, it should be registered.
My Lords, these amendments relate to exemptions. As I said previously, this part of the Bill has involved close consultation and dialogue with all interested parties.
A considerable number of amendments are in this group. That in the name of my noble friend Lord Cormack would remove the size qualification, set at 320 square centimetres, from the portrait miniatures exemption. As the noble Lord, Lord Grantchester, said, this exemption came out of the consultation and formed a further exemption that perhaps had not been identified before.
During the House of Commons evidence session, an expert on portrait miniatures gave evidence on how the exemption for portrait miniatures could be refined by the addition of a size limit. It is important to ensure in legislation that we have as much precision and certainty as possible. The evidence provided to the committee suggested that a size limit of six inches by eight inches for portrait miniatures would be very sensible, as it would cover the vast majority—I say to my noble friend Lord Crathorne that the expert thought this to be 90 to 95%—of pre-1918 portrait miniatures.
The Government were persuaded by this new evidence to include a size limit to this exemption and for it to apply to the visible ivory surface. We have again taken the suggestion of the expert to whom the noble Lord, Lord Grantchester, referred of six by eight inches, converted this to metric—when I took advice, I was told that this is now the way in which official bodies conduct themselves, but I do not want to get into imperial and metric—and expressed it as a total surface area in recognition of the high number of portrait miniatures which are circular or oval in shape. Further—I do not know whether this will be helpful to my noble friend the Duke of Wellington—the Bill makes it clear that the frame will not be included in the calculation of the surface area of a portrait miniature. In consultation with stakeholders, we will issue detailed guidance on the exemption criteria, which will include simple steps on how to measure surface area. This amendment was widely supported in the other place.
On the amendments about “de minimis”, I have previously mentioned the extensive work that we have carried out with stakeholders to shape this Bill and we have come to a proportionate response—mindful of what the noble Lord, Lord Grantchester, said about my own party’s 2010 and 2015 manifesto commitments to press for a total ban, referred to in the Explanatory Notes. As such, the de minimis exemption is part of a wider package of narrow and carefully defined exemptions which accounts for a range of views. To broaden the scope of the de minimis exemption would therefore not only weaken the ban but undermine this carefully balanced package. It is important to note that, in determining this package, exemptions for portrait miniatures and the rarest and most important items of their type were included. The exemptions allow for items that would have otherwise been excluded if only the de minimis exemption applied. We can tout percentages, but some states in the United States, including California, have put in place a 5% threshold for their de minimis exemption, setting an even higher bar.
The Government agree with the points made by noble Baroness, Lady Bakewell, and the noble Lord, Lord Grantchester. We believe that a 10% de minimis threshold demonstrates a robust but proportionate approach to this exemption. For example, the exemption will allow the dealing in items such as inlaid furniture to continue, but it will prevent dealing in items containing larger amounts of ivory.
My noble friends have also suggested that we specify volume in cubic centimetres, below which any item may be considered exempt. This could, I am afraid, act as a loophole for those wishing to export solid pieces of ivory to major-demand markets in the Far East. These items are at risk of being re-carved to suit local tastes, thereby further fuelling the demand for ivory and its social acceptability—we have to go back to the public interest in all this; the public interest is to do all we can do across the world to prevent the extinction of the elephant in the wild.
I recognise noble Lords’ interest in how the de minimis exemption will be applied and can assure them that information on how the volume should be assessed will be outlined clearly in guidance. For example, when registering an item, the owner will make their own assessment of the percentage volume of ivory, meaning that no damage is likely to take place. It will also be made clear that any voids which are integral to the item— for example, in a chest of drawers—will be included in the overall volume of the item.
Enforcement bodies have made clear from their experience with existing legislation that a percentage volume is the most practical measurement in assessment and enforcement, as it allows assessments to be carried out by eye. To assess the total weight of ivory in an item would be far more difficult and could even mean that ivory needed to be removed to be weighed, thereby possibly damaging the item. I hope that my noble friends will understand that we do not seek to damage such items.
My noble friends, in particular my noble friend Lord De Mauley, also raised a number of points about the definition of “integral”. I want to explain how we have arrived at this definition and why we are unable to accept his amendment. Evidence provided to us during the public consultation demonstrated a significant risk associated with any de minimis exemption if the right protections are not put in place. Criminals could, for instance, attach a large, solid piece of ivory to another product for it to meet the volume threshold of the de minimis exemption. For example, solid pieces of ivory may be added as a handle to a wooden walking stick, or larger pieces may be attached and presented on a large plinth in order for the ivory to be only 10% of the total volume. Such solid pieces of ivory could subsequently be removed, re-carved and sold in major-demand markets of the Far East, thereby further fuelling demand for ivory.
Not necessarily, my Lords.
For this reason, the criteria of the de minimis exemption include a point about the ivory needing to be integral to the item. To avoid a potential loophole being created, it is necessary that the definition of “integral” is sufficiently strict. I recognise my noble friend Lord De Mauley’s points in regard to certain items that this may affect, but we believe that the risk of the exemption being exploited by criminals to sell what should be illegal ivory items is too great.
I am not sure whether I should now refer to the noble Lord, Lord Inglewood, as my noble friend or as the noble Lord, but, whatever he is, he is my noble friend. Taken together, his amendments would remove the requirement to register pre-1947 items with less than 10% ivory by volume. We want a robust yet proportionate compliance process. I want to explain how we have ensured this in the Bill and why the Government do not feel it right to accept the amendment. I have already made clear the intention of this ivory ban and why we have decided to include narrow and targeted exemptions. These will facilitate a limited ongoing trade and allow owners of exempt ivory objects, and those involved in their sale, to continue ongoing commercial activities in ivory. It is, however, crucial that such activities are limited to objects that are unlikely to contribute to the poaching of elephants and that these exemptions are not exploited by those wishing to deal in illegal elephant ivory products.
As a result, a compliance process is essential for all exemptions. The Government consider that an online self-registration system represents the most proportionate means of ensuring compliance with this Bill. It places a small administrative responsibility and financial cost on the seller—the person who will benefit financially from the exemption. This is indeed a small cost when considering the critical objectives this compliance process will help us to achieve. Requiring objects to be registered as exempt prior to their sale or hire will encourage people to engage with the new measures and to think carefully about whether their item meets the particular category of exemption.
Registration will also allow the ongoing commercial activity to be monitored over time, which I believe is important and is not currently possible. It will also significantly aid identification of breaches of the ban compared to current rules, as enforcement officers will be able to use material submitted to the online system to help determine whether an item meets the exemption category and whether it has been registered using false information. Failure to register an item and registering false information under the registration system would be an offence in each case. Registration will also facilitate the ongoing dealing in exempt items and will provide support to legitimate buyers and sellers. It will enable sellers to demonstrate that their items meet the relevant exemption and will reassure potential purchasers that they are acting in accordance with the ban.
My noble friend suggested that de minimis items should not be subject to registration. As I have explained, I believe that there are benefits for those enforcing the ban and for those wishing to comply with it. It is critical that all exempt items are subject to registration. To allow one exemption not to be subject to registration would undermine the ban and, most critically, could allow that exemption to be exploited by those wishing to sell illegal ivory objects. This is the problem with the current system and is exactly why we need to put a more robust restriction in place.
I recognise that my noble friends have raised the issue that a high volume of items will need to be registered and that some of these will fall into similar categories, such as inlaid furniture. It is important to say that we are working with stakeholders to develop the system so we can make sure it meets the needs of all users. The registration system will be designed to account for this. Each registration certificate will provide an identification code and will require other information such as photographs and descriptions to identify the exempt item. Furthermore, by registering each item before a sale is made, we can make transparent the ongoing dealing in exempt items, demonstrate the legality of such commercial activity and better identify illegal dealing.
Although I will ask my noble friend Lord Cormack to withdraw his amendment, I hope I have taken the opportunity to outline why we are strongly of the view that it is in the interests of everyone that all exemptions should be registered. It gives probity to the seller and buyer and makes our position much safer. Indeed, it is in the interests of those who, through the exemptions, are able to continue commercial activity.
I think it is appropriate now that I ask my noble friend Lord Cormack to withdraw his amendment.
My Lords, I have sat in the other place and this House now for some 48 years. I do not think I have ever been more depressed by a Bill put forward by a Government to whom I give support. I do not think that I have ever heard a more obdurate reply from the Front Bench. I beg my noble friend—I have always regarded him as a friend in every sense—to have a little bit of the pragmatism and flexibility which have been defining characteristics of the Conservative Party and, I believe, of all good democrats through the ages.
I have to confine my remarks to Amendment 17—the one that deals with miniatures. My noble friend the Duke of Wellington indicated to me, so that I knew in time to wind up, that the miniature that he examined this morning, and which he has offered to show to my noble friend, is significantly larger than the limit prescribed. Frankly, it is no good to say that the exemption covers 90% of miniatures. When people buy a miniature, they are buying a work of art because they want to own that particular image because of the subject or the artist, and sometimes both. They are not buying it because it is painted on velum, ivory or anything else. They are buying it for the picture. It just so happens that for a couple of centuries many of the best miniaturists painted on ivory and some of the finest miniatures in our national and local collections and in private collections in houses open to the public are painted on ivory. Some of them—among them some of the very best—will be bigger than the limit prescribed in the Bill.
This way madness lies and I beg my noble friend—whose invitation to withdraw the amendment I shall have to accept—to talk to my noble friend the Duke of Wellington and others between now and Report and to see that the case we are advancing in your Lordships’ Chamber today is not nonsensical but has at its heart a love for our national heritage and for these objects and miniatures that form a very important part of it. This is not a question of doing damage to any elephant. All the elephants on whose ivory the miniatures are painted are long dead. With a heavy heart, I beg leave to withdraw my amendment.
Amendment 17 withdrawn.
Clause 6 agreed.
Clause 7: Pre-1947 items with low ivory content
Amendments 18 to 23 not moved.
Clause 7 agreed.
Clause 8: Pre-1975 musical instruments
24: Clause 8, page 5, line 21, leave out “20%” and insert “30%”
Member’s explanatory statement
This amendment is designed to simplify the bureaucratic arrangements which will follow the enactment of this Bill.
I am sorry it is me again but I feel strongly about these things. In my two amendments and the one tabled by the noble Baroness, Lady Quin, we are looking at music and musical instruments. I was encouraged to take an interest in this because of the admirable, although brief, speech that my noble friend—that is what I am going to call him—Lord Berkeley made at Second Reading. He indicated that, here again, the ivory happens to be the material but it is incidental. People do not buy a particular violin, a particular piano or set of Northumbrian pipes—I shall give the noble Baroness, Lady Quin, a trail, because I do so agree with her—because of the ivory content. Nevertheless, the ivory content is integral and is important.
I had representations only last week about bows. I was told things that I did not necessarily know. The small piece of ivory in a bow for a stringed instrument—a violin, cello or whatever—can be less than 1% and is gradually being replaced, through wear, with plastic in the cheaper ones, or permafrost mammoth. There was a quite preposterous suggestion at Second Reading that we should outlaw the use of ivory from mammoth, which have been extinct for millennia—God help me. My correspondent goes on to say that requiring all extant bows to be registered with Defra, and a de minimis rule, will swamp both Defra and the other offices concerned. She points out that there are 30,000 members of the Musicians’ Union in this country, the vast majority of whom make their profession from the use of bows. New legislation would make it difficult for them to tour with their bows or to sell them.
If the 30,000 professional musicians are not a sufficient concern, consider the amateurs. Consider how often, in this House, Members in all parts get up and lament what is happening to music in schools. We are dealing here with something where the ivory content is not only incidental, it is insignificant. We cannot have a situation where not only the artistic heritage of our country is put at risk but the musical heritage as well. I have suggested in Amendment 24 that we should put the content up from 20% to 30% and I hope we will be able to debate that in greater detail on Report. I stress that Amendment 26A is the most modest proposal of all—and I do not mean that in the sense of Jonathan Swift. Again, I beg and urge my noble friend to show some sympathy, as a man who, I believe, loves music, and recognise that we are not doing anything here that could conceivably endanger any living elephant. I beg to move.
My Lords, Amendment 26 is in my name and is part of this group. I had very much hoped not to speak in Committee, or bring forward an amendment, as I had hoped that the problems that the Bill poses for the sale of second-hand Northumbrian pipes bought entirely legally in the first place would have been addressed at earlier stages, even in the other place. However, I do wish to speak to my amendment today, and it may be helpful if I put on record once again the fact that I am president of the Northumbrian Pipers’ Society. This is a role that involves no financial payment whatever, and although I do own two sets of pipes, neither of the sets contains any ivory. At Second Reading I explained some of my concern about the Bill’s provisions while strongly giving the Bill my overall support. In fact, I have been in favour of an ivory ban for many years and it is somewhat upsetting to be suspected of not supporting a ban simply for raising a rather narrow issue and a valid concern.
In rereading the debate at Second Reading I detected a misunderstanding about the pipes in the remarks of my noble friend Lady Jones of Whitchurch, to which I want to draw attention, when she described the pipes as “domestic, not commercial instruments”. It is true that during the debate I described the pipes as a domestic instrument, but I meant simply to underline the point that they are normally played indoors, in a domestic setting. I did not want to imply that they are not a commercial instrument, because the pipes can be bought and sold and can be hired out. Accordingly, therefore, they are very much affected by this legislation, even though pipes bought entirely legally risk becoming valueless and removed from the market for purchase or hire at a time when we have a market for pipes and new pipes are in very short supply, simply because pipe makers are now, sadly, in short supply. Some have retired and some have, sadly, passed on, so the market is particularly dependent on second-hand pipes being available for sale or hire.
My noble friend Lady Jones of Whitchurch said in the debate that the pipes could of course be gifted, and that is true, but it seems unjust that pipers who bought pipes legally are simply going to be banned from selling or hiring them in the future. Again at Second Reading the noble Earl, Lord Attlee, who is in his place, said that,
“elephants win over business and wealth”—[Official Report, 17/7/18; col. 1184]—
a view with which I have a great deal of sympathy. I assure him that the majority of Northumbrian pipers I have met are not rich. If he, the Minister, or indeed my noble friends doubt my word, I can invite them to meet many pipers of my acquaintance. Indeed, I chaired a recent annual general meeting of the pipers’ society and the members’ concern at the legislation was very evident on that occasion.
Two specific points were made that I want to bring to the attention of the Minister and my noble friends. The percentage requirements do not really work in the case of the Northumbrian pipes. What is perhaps more worrying is that there does not seem to be much evidence that anyone in government has looked seriously at the issue of percentages in relation to the Northumbrian pipes. At Second Reading I asked the Minister specifically about percentages and how they were arrived at but I did not get a reply to that specific point, although I recognise that the Minister did address many of the points that were made. There do not seem to be any guidelines about the pipes. Given their unique nature, the existing exemptions, as far as I can see, do not seem to help. If the Government would at least examine the problem with representatives of the pipers’ society, that at least would be an important start. Officials who have been responsible for drafting the legislation could look at these issues in some detail.
The second point that was made chimes with some of the points made earlier today in relation to inlay, or to ivory that is integrated very much into the particular object. That applies to the pipes. It would be very difficult to somehow unpick the ivory content of the Northumbrian pipes. In some ways that is a good thing: they cannot be unpicked to sell on the ivory, because the pipes would become unplayable. That, therefore, adds to the problematic situation of the supply of new instruments in the piping market, due to the lack of pipe makers making new sets of pipes.
It is because the percentage rule does not help and is not really clarified with regard to the pipes that I have phrased my amendment in the way that I have, and asked for an exemption for any pipes that were made legally before the legislation comes into force. Given the limited number of pipes, I do not think that is a huge ask, but there may be ways of working out a narrow exemption to help the pipes—technically speaking—but this would mean that the officials and Ministers responsible for the Bill would really need to look at this issue much more closely than seems to be the case so far. I welcome the fact that no new pipes will ever be made with ivory, but I repeat that simply banning entirely the sale or hire of second-hand instruments risks causing great damage to our musical tradition.
The Minister and my noble friends today have on many occasions mentioned the consultation that took place. The Northumbrian Pipers’ Society responded to the consultation in a measured and thoughtful way, but no response came to it from the Government. It put its views into the consultation and heard nothing more. There was no evidence that anyone took any notice of its views and, therefore, I am still very anxious that its views should be taken into account, even at this stage.
During the debate today, a number of points were made by the Minister and by others, which I should like briefly to address. One of the important ones was the coach-and-horses point: that an exemption could drive a coach and horses through the Bill. However, I cannot see that a narrow and limited exemption for the pipes could drive such a coach and horses through the Bill, particularly given the very distinctive nature of what we are talking about.
Another point that has been mentioned many times during the debate has been the fear—which I share—of fuelling the international demand for ivory, particularly in the Far East. I have to say that I cannot remotely imagine that allowing the sale of sets of second-hand Northumbrian pipes could possibly fuel the demand for ivory in the Far East and I cannot believe that far eastern traders or consumers will be clamouring for such second-hand sets of Northumbrian pipes, particularly given that, if you tried to dismantle the ivory, you would ruin both the pipes and the ivory. The pipes, I should stress, are small instruments. The alternative name for the Northumbrian pipes is the Northumbrian smallpipes, and that describes what we are talking about.
The Minister has, rightly in my view, said that the Bill provides for narrow and limited exemptions. That is precisely what I am asking for here: a narrow and limited exemption. I share the view that has been expressed that we want to make swift progress with this Bill; I certainly was not wanting to delay its passage through either House of Parliament. But one of the strengths of your Lordships’ House as a revising Chamber is precisely the fact that it goes through legislation carefully. I think that, in this case, we need to be more careful about the effects of what it is that we are proposing. As the chairman of the Northumbrian Pipers’ Society, Andrew Davison, has said, this is not a plea to be able to continue to trade in ivory. It is a plea to be able to continue to sell and hire a distinctive musical instrument that was purchased perfectly legally and whose continued availability is crucial to our musical tradition in the north-east of England.
The purpose of my amendment is simply to bring this issue once again to the attention of the Government, with the hope that, between now and Report, a way of addressing the pipers’ concerns, and safeguarding our precious and unique regional heritage, is found. I hope that the Minister and my noble friends will respond sympathetically.
My Lords, my noble friend Lord Cormack is an extremely experienced parliamentarian, but his arguments would be a little more convincing if he avoided describing my noble friend the Minister’s response as obdurate.
One of the complaints that we hear about the House of Lords is that we are far too London-centric. I hope that the Minister will pay attention to the suggestions of the noble Baroness, Lady Quin, about the Northumbrian pipes. Perhaps there is something that the Minister could do—some special arrangement. I hope that my noble friend will think about that.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Quin, and I thank her for bringing this amendment forward. Throughout most of my adult life I have had much pleasure from hearing the Northumbrian pipes. They are a sweet sounding, relatively quiet instrument—often played indoors—and were the musical instrument of many shepherds and farmworkers in the area that I used to represent. Subsequent generations of pipers have often come from other walks of life—teachers who have been in a variety of professions—but the core of people on whom the musical repertoire of the pipes has depended, and whose tunes are recorded, came from the farming life of Northumberland.
I want the Minister to understand how important this is to us and how strongly we are pleading for him to do something about what is now seen as a threat, particularly to the new pipers—young people and, sometimes, those in retirement—who have to acquire an instrument. We are talking about an instrument of which there are not large numbers. The noble Lord, Lord Berkeley of Knighton, mentioned how many thousands of violin and cello bows there are in this country. The sets of Northumbrian pipes are numbered in hundreds—not thousands—and it is quite hard to acquire a set now that there are so few remaining craftsmen who make these instruments. Most of the people who are involved in this activity are not wealthy and if the supply is artificially restricted by the exclusion of so many instruments which were made before 1975 and have ivory content, it would be a very serious threat.
I confess that I have difficulty understanding how the 20% exemption could be applied in the area of Northumbrian pipes, although the Minister gave me a moment of hope when he referred to integral voids, such as the area of an interior of a drawer in a chest of drawers. My mind immediately went to the bag in which the air is pumped in from the bellows, which the piper operates with his or her arm. The bellows could at least be inflated when the judgment is made as to what the integral void is and whether it passes the 20% exemption. Describing that illustrates how worrying it would be if we have to depend on such a concept in order to get a reasonable exemption, which I am sure most people, looking at it rationally, would realise was necessary and was not a coach and horses.
What worries me is that there has been a lot of engagement and discussion with various trades and activities about this Bill. Not all of it has led to the outcomes that some would have desired, as the noble Lord, Lord Cormack, has pointed out. I am not convinced that there has been enough engagement yet with Northumbrian pipers and those who are concerned for their welfare. I want the Minister to give us some assurance that he will try to ensure that that engagement takes place and that, by the time we reach Report, there is some way of dealing with this problem. I know that there is pressure not to amend this Bill so that it sails back to the House of Commons, but we are a revising Chamber and it is our job to discover if there are areas where the Bill does not meet the practical requirements of our society. If it is necessary to make a small amendment to the Bill better to meet the needs of Northumbrian pipers, the Minister must be ready to make that amendment, unless he finds a non-statutory way of achieving it. I have not yet seen that, so I think we will need an amendment at a later stage and I hope the Minister will apply himself to the task of finding a solution.
My Lords, I apologise for jumping the gun earlier—perhaps I should say for coming in on an upbeat rather than a downbow. I support Amendment 26A tabled by the noble Lord, Lord Cormack, which is very precise. I reiterate that there are several hundred thousand bows in the United Kingdom alone that have either ivory or mammoth faces weighing less than 1 or 2 grams, which is really minuscule. Some of these will be 200 years old and as musicians buy and sell bows regularly, this volume of permits will have to be redone every few years. The resources required for that would surely be much better directed towards the problem itself, towards protecting elephants and prosecuting the criminals who try to make money out of ivory. I say to the Minister that I completely understand and endorse the desire to make the Bill strong and as watertight as possible but surely there has to come a point, when we are talking about such a tiny thing that does not threaten living elephants in the slightest, where we have to apply common sense.
Lastly, I know there was a meeting of some of the ivory team at Defra, and they indicated to a bow maker that they would not be entirely against this. I can give the Minister more information on that if he would like it.
My Lords, I shall speak to Amendment 26. Given the information that the noble Baroness, Lady Quin, has provided about the dwindling number of Northumberland pipe makers, it would be a great shame if this delightful pipe were to fall into disuse. I thank my noble friend Lord Beith for his description of the sweet sound that the pipes make and I agree completely with his description, having been dragged along—no, having gone along with my husband—to many concerts where the Northumberland pipes were playing. I urge the Minister to talk to his colleagues to see whether some compromise could be reached to secure the future of the Northumberland pipes.
My Lords, noble Lords would expect me to deal with Amendments 25 and 27 in this group. However, they are almost identical to Amendments 21 and 23 respectively, which were in the last group that we debated. Normally in my experience it is Back-Benchers who try to degroup and the Government who try to group up, so this situation must be somewhat unusual. Noble Lords will be pleased that despite the Minister’s response, which did not really address the issues, I do not propose to make the same points again. Instead I will simply say that they apply here as well.
My Lords, this group of amendments relates to the exemption definition of musical instruments with less than 20% of ivory content. The backstop date at which Asian elephants were first listed in Appendix I of CITES was 1975, before the poaching crisis of the 1980s. Evidence provided through the consultation, including from the Musicians’ Union, showed that that the vast majority of commonly played and traded instruments, including violins, pianos and bagpipes, contain 20% ivory or less by volume. Unfortunately, I understand that Northumbrian pipes would not qualify under this category due to their size. I appreciate the high esteem that these pipes enjoy and the passion with which my noble friend Lady Quin has spoken, but I gently suggest to my noble friend that there might be other ways in which that tradition can be kept alive for future generations. Instruments containing ivory can still be gifted, donated and bequeathed—perhaps, for example, to a dedicated local organisation or even the Northumbrian Pipers’ Society itself—to enable future pipers to enjoy their music. The region could also grant or fundraise for newly manufactured instruments to use ethical alternatives for ivory. I would like the Minister to confirm that that solution would be possible for the Northumbrian pipers. I also reiterate my previous comment that the registration of any exempted items, including musical instruments, is necessary to ensure compliance.
My Lords, this group of amendments relates to the musical instrument exemption. I say again that the formulation of the exemption has been extensively considered with the music sector. I think I am permitted as Minister to say that when I hear some of my noble friends, I wonder whether they have quite understood that much consideration has gone into the Bill and that the exemption package has involved a considerable amount of intricate detail.
I have never thought of myself as obdurate and I am not going to be so, but we have to go back to the rationale of the Bill, which is to have narrowly defined exemptions to what is a ban on dealing in ivory. If I may say so, my party’s manifesto in 2010 and 2011 contained a total ban on ivory. That is what we fought that election on. We have come forward with a package that we believe is appropriate and should be seen to be so. In all this, I am interested that so many of the people with whom we are working have recognised that the Government have sought to command this great rationale that we want from the Bill but are also seeking to find ways of common sense prevailing. I hope my noble friends will allow me to put on record that I actually do not identify with many of the comments that they have made about the Government’s intention and seeking to make life difficult; in fact we have sought to find a common-sense resolution.
The amendments include a maximum volume in cubic centimetres below which any item may be considered exempt, and propose we increase the volume of ivory allowed in an instrument to 30%. I make it absolutely clear again that the Government’s intention is not to impact unduly on the livelihoods of professional musicians or indeed amateur musicians. This exemption will allow musical instruments made before 1975 and containing less than 20% of ivory to be exempt from the prohibition on the trade of ivory in the UK. Furthermore, items used as an accessory to play a musical instrument—for instance, a violin bow—also fall within the definition of this clause.
In Committee in the Commons, Paul McManus from the Music Industries Association warmly welcomed the exemption under Clause 8 as it stands. Echoing the responses that we received through our public consultation, he stated that the majority of commonly played and traded musical instruments and accessories, such as the bows of stringed instruments, which my noble friend refers to in his amendment, contain less than 20% of ivory. We recognise that some items such as violin bows may be sold, and therefore need to be registered, in higher volumes. In designing the registration system, we are talking to a range of people likely to be frequent users of the system—for example, representatives from the Association of Art and Antique Dealers and the Music Industries Association—so that we can consider their needs. On the suggestion that we include a maximum volume in cubic centimetres below which any item may be considered exempt, I reiterate what I have previously said: I am afraid that an exemption of this type would act as a loophole for those wishing to export solid pieces of ivory to major-demand markets in the Far East.
I turn to the amendment in the name of the noble Baroness, Lady Quin. I am always conscious that when my noble friend Lord Attlee expresses support I am in for serious trouble. I respect what the noble Baroness and indeed the noble Lord, Lord Beith, have said about this matter. I would be interested to know about the numbers of instruments involved. If I am allowed to go off piste, I am going to ask my officials to ensure that there is a full and proper discussion with the Northumbrian Pipers’ Society about these matters. I hope your Lordships will understand that in saying that, I can give no promises because it would not be right for me to do so and indeed I am not in a position to. However, I want to ensure that the Northumbrian Pipers’ Society feels that after today it has had a proper session individually with officials so that we can understand the aspects of what the noble Baroness and the noble Lord have said.
I am grateful to the Minister for making that suggestion. I put it to him that one of the things that he and his officials might explore when they meet the society is how many instruments, and what proportion of the total stock of instruments in existence, would be affected if the law remained as is currently proposed, and whether that could be affected by any amendment in a helpful way.
The noble Lord and I are on the same page. That is exactly the sort of requirement that I think we should have so that we can understand the points that noble Lords have made.
Some Northumbrian pipes may contain over 20% ivory and therefore may not meet the musical instruments exemption. I obviously cannot commit to this, but having heard what the noble Baroness and the noble Lord have said, is it possible that they could be considered under the rarest and most important items exemption, for instance, because of what the pipes mean in the community? I emphasise that the 20% measurement is applied to the whole instrument, including in the case of the pipes, the bag. I asked this question this morning: it does not include the inflated bag, but it does include the bag. I hope that detail is helpful.
I am a great champion of local traditions. This provision would not stop the pipes being played or enjoyed. As the noble Lord, Lord Grantchester, has said, the ability to pass on and to donate these instruments so that the next generation can enjoy those that are not under 20% is still available. On that matter, not just because it was raised by the noble Baroness but because I recognise that I want the Northumbrian Pipers’ Society to feel that it has had a proper hearing, I will ask for that meeting to take place.
As ever, the noble Baroness is very generous in saying that.
I wonder whether my noble friend Lord De Mauley disagrees with my remarks, rather than my not having responded. One of the things I try to do is always to ask whether we have we answered the question. It may be that he and other noble friends simply do not agree with the analysis.
Given the hour and the debate that follows, perhaps we could explore that another time.
We have sought to bring forward a proportionate proposal on the musical instrument exemption. We are not in a position to support any further extensions of the exemption in what we believe is a very carefully considered package. I want to explore further the question raised by the noble Baroness. On that basis, I ask my noble friend to withdraw his amendment.
Of course, I shall withdraw my amendment in a moment. As I said before, I regard my noble friend as a friend in every sense but I think it is a pity when your Lordships’ House has a reputation for scrutiny that he has to get up at the Dispatch Box in Committee and virtually rule out any reflection on anything other than the Northumbrian pipes. I am very glad that he is going to reflect on the Northumbrian pipes and I hope he comes up with a good solution. However, the other points made in the debate—not just by myself but by many colleagues—merit more consideration than they appear likely to get. I beg leave to withdraw the amendment.
Amendment 24 withdrawn.
Amendments 25 to 27 not moved.
Clause 8 agreed.
Clause 9: Acquisitions by qualifying museums
Amendment 28 not moved.
Clause 9 agreed.
Clause 10: Registration
Amendment 29 not moved.
House resumed. Committee to begin again not before 8.45 pm.