Relevant documents: 31st, 35th and 36th Reports from the Delegated Powers and Regulatory Reform Committee
Clause 1: Prohibition on dealing in ivory
1: Clause 1, page 1, line 8, leave out paragraph (d)
My Lords, I am sorry that there are not more in the House at the moment. I think if I were to ask any of your Lordships, individually or collectively, if you believed in the deprivation of the value of legitimately acquired private property, you would give a unanimous answer.
I have a retired friend in Lincoln who has spent his life collecting English watercolours. Some are very beautiful and he has collected them because he believes that they are beautiful but also because he always felt that in acquiring a watercolour, he was safe- guarding his money and knew that if he or his wife came upon difficult times, he could realise his assets. So it is, so it should be, and so, if he hits on hard times, it will be.
But if he had been like the gentleman who wrote to me only last week and collected ivory chess sets made at the same time that the watercolours were painted—the late 18th and early 19th century—he would be facing the prospect of having no assets that he could realise. This must surely be the law of unintended consequences. It cannot be that any Government, least of all a Conservative Government, would wish to act in that way against someone who has studiously—I use the word properly—collected items of interest and of some value, though not superb national value necessarily, and done no harm in the process.
There is probably not a single Member of your Lordships’ House—I hope there is not—who is not fundamentally opposed to the activities of ivory poachers. To that degree, we all welcome the Bill and applaud the Government’s desire to deal with poaching and punish those who trade nefariously in ivory items. But how many elephants will be protected in 2020 by forbidding someone from selling an ivory chess set made in 1820?
In Committee, I moved a slightly more far-reaching amendment, but I had the impression that it would not necessarily prosper, so I have made this amendment much simpler. It merely deletes the paragraph in Clause 1 that refers to,
“exporting it from the United Kingdom for sale or hire”.
If we are to prevent people realising their own legitimately acquired assets, surely we will not prevent them selling them in a country where it is entirely legal—as it is in France—to sell their ivory objects.
This is common justice as well as common sense. I beg to move.
My Lords, I have listened carefully to my noble friend Lord Cormack but I am opposed to his amendment, which would be destructive of the objectives of the Bill. It is important on this and other amendments to remind ourselves of the objectives of the legislation. Our ultimate objective and the objective of international policy on the ivory trade is to end the demand for new ivory. We probably all agree that this is the ultimate answer. Whatever we do in anti-poaching measures, conservation and the interception of shipments is really only mitigation. The answer to keeping elephants alive today is to end the demand for ivory.
That means bringing that demand to an end in China, Vietnam and south-east Asian countries. For years, some of us have been trying to persuade them of that, including when I was Foreign Secretary and began the conversation with China about ending its domestic ivory market. Now I am pleased to say that China closed its domestic ivory market at the beginning of this year. The British Government, including my noble friend the Minister at the Illegal Wildlife Trade Conference two weeks ago, were persuading other Governments to close their domestic ivory markets, including that of Laos, which is an important piece of the jigsaw, and, I hope, Vietnam and Malaysia in the future.
In every one of these conversations, including that with China, the first thing they say is, “Are you going to do the same? Are you going to close your domestic ivory market?” Secondly, they say, “If you don’t stop your exports from the United Kingdom, it is much harder for us to close our markets if thousands of items are exported as they have been each year”. The CITES figure is of 54,000 ivory pieces from the UK in a 10-year period, largely into Far Eastern markets. It is not credible to say to those countries, “Please close your domestic ivory markets so we save the elephants for the future. However, we are going to have a lot of exemptions and export to wherever we can from the United Kingdom. We have all these nice things we picked up during the Empire and we would like to be able to sell them in the future”.
It is very important to what is becoming a sensibly agreed international policy, not only that we support the Bill in general but that we do not make an amendment that would cut out of it the prohibition of exports, which would largely defeat the object of the Bill.
I am grateful to my noble friend but that does not address the issue of antique ivory. He may not be aware that most of the ivory exported is in the form of piano keys, but let us forget that for a moment. Does my noble friend think that in his desire to preserve the rainforest—a desire I am sure he and I share—it would be sensible to prohibit the sale of 18th-century mahogany furniture? His argument is devoid of logic, which is unusual for him.
We have not come to that point on the rainforests, but I would do whatever was necessary to save them. There is no doubt that the legal trade in the UK is cover for an illegal and illicit trade. We can see it for ourselves. Last month, I went to Heathrow Airport to meet the Border Force officials and Royal Mail personnel whose job it is to open suspicious boxes and so on coming into this country. I have seen with my own eyes and opened the boxes of the new worked raw ivory from elephants being killed today that is made to look as though it is antique ivory. That is why the United Nations Office on Drugs and Crime says that, globally, there is no doubt that a legal trade is cover for an illicit trade. So there is a powerful logic in enacting the Bill as it stands, including paragraph (d), referred to in Amendment 1, if we are to play our part internationally in saving the elephants of today.
My Lords, I support my noble friend Lord Cormack’s amendment. I really just want to add to my noble friend Lord Hague that one of the great problems that the drafters of the Bill faced, and never really answered, is the claim that there is an inability in the ivory markets to tell the difference between modern ivory, newly carved from poached elephants, and antique ivory. It is in fact extremely easy to do and is done as a matter of course; indeed, it is enshrined in the Bill by museums having the expertise to determine whether an ivory item presented as of exceptional international and domestic importance—and therefore exempt under the Bill—is old or new. There is the expertise to determine whether ivory is old or new and to tell whether an ivory chess set—the example used by my noble friend Lord Cormack—is an old ivory chess set or one carved for the Hong Kong market. The reality of all this is that we are destroying a great many highly prized historical artefacts in this country for, probably, zero effect on the elephant population. That is the great tragedy of the Bill.
My Lords, noble Lords will not be surprised by this, but we are very much opposed to this amendment. The noble Lord, Lord Hague, put the case much more strongly than I will, but I was disappointed by the position of the noble Lord, Lord Cormack, on this. The very fact that his amendment focuses on exports goes to the heart of what the Bill is about. I am sorry that he has sought to start this debate in such a negative way. I hoped that we would have learned from our debates in Committee and that we had made the case in Committee, as the noble Lord, Lord Hague, said, that we are trying to stop the illegal exports of illegal pieces. That is the heart of the problem.
The latest CITES statistics show that there has been a dramatic increase in the amount of both raw and worked ivory being exported from the EU: in 2014-15, the last two years for which data are available, the EU exported 1,258 tusks. That is what has happened according to the CITES information. Over and above that, as the noble Lord, Lord Hague, said, there is the undercurrent of all the illegal trade of which nobody has any record. That is at the heart of this, and I am very sorry that we have started this debate looking at exports, which is the real problem that we have. I know we will go on to talk about other issues, but I regret this and I hope that the noble Lord, Lord Cormack, in other contributions that he might make, will do more to persuade us that he really understands the basis of the Bill. He said that he welcomed the Bill, but I think he has more of a responsibility to demonstrate how. I therefore urge noble Lords to oppose the amendment.
My Lords, my noble friend’s amendment would allow commercial exports of ivory to be exempt from the ban. Given the rationale of the Bill, this amendment would be contrary to its purpose. We have heard from all sides, and we are all united behind the need to tackle the devastating decline in elephant populations, which is being driven by the global demand for ivory. While key demand markets are primarily in the Far East, the UK has, by introducing the Ivory Bill, acknowledged that its own legal ivory market is one of the largest in the world. By closing this market we want to ensure that the UK no longer plays a role in driving the global demand for ivory, including in the Far East.
Currently, the UK ivory market is linked to the Far East. As I mentioned in Committee, a 2016 report by TRAFFIC, the wildlife trade monitoring network, shows that a shift has taken place over a number of years, with the UK legal market increasingly serving consumers in the Far East. UK Border Force officials have uncovered numerous antique ivory items being sent to Asian markets, often mislabelled as items other than ivory. Market surveys in the Far East have also shown that demand for ivory rarely distinguishes between legal and illegal ivory, with both found to be sold side by side. It cannot be denied that antique ivory from the UK is being exported to those markets, where it fuels the social acceptability of ivory and, in turn, perpetuates the demand.
I thank my noble friend Lord Hague for setting it out so clearly—indeed, the noble Baroness, Lady Jones, has said it much better than I possibly could—and I agree with every word he said. If we were to exclude exports from the UK’s ban, as proposed by this amendment, we would not only be allowing this link to continue but would also be condoning, internationally, the export of ivory items to demand markets. This would set back the actions already taken by other countries such as the United States and China by allowing new markets to grow in the Far East. It would also undermine the global movement to close markets and remove the value associated with ivory, which African elephant range states are calling upon us to do.
My noble friend Lord Hague referred to—as I will describe it—this global movement. The Illegal Wildlife Trade Conference was held earlier this month in London, where the UK Government launched the international Ivory Alliance, which will work to close domestic markets and reduce demand for ivory. It was a privilege to introduce a session at the conference—jointly chaired by my noble friend Lord Hague and Dr Zhou Zhihua of China, with a panel including the Assistant Deputy Secretary from the US Department of the Interior and the former New Zealand Prime Minister Helen Clark—which focused on the importance of closing domestic ivory markets.
The action the UK has taken by introducing this Bill is already helping to encourage other countries to take action. As my noble friend Lord Hague has said, both the Cambodian and Laotian Governments announced at the conference that they will be closing their domestic markets. This is an important step forward. Our work in the UK has also resulted in an Australian parliamentary committee recommending that Australia close its domestic market. The committee urged the Australian Government to follow the UK’s approach, which they described as an example of best practice.
Our actions are already having an impact and will continue to, if we make the right decisions. The current restrictions in place are not strong enough and there is an international movement, endorsed by a CITES resolution, to address the gap and in turn protect elephants. The UK must play its part, and it is for these reasons that the Government cannot support my noble friend’s amendment. As is customary at this stage, I therefore respectfully ask him to withdraw it.
If this amendment is not passed, what would happen to objects that are confiscated at the border? I am thinking in particular of significant cultural objects that were destroyed in America, because all ivory is disallowed from entering the United States.
I say to the noble Earl, as my noble friend Lord Carrington mentioned, that there is no intention to destroy any objects. Indeed, there are further amendments on exemptions that we think strike the right balance regarding outstanding and the rarest items. We have a strong and proportionate package of exemptions, which will come up in the next group of amendments.
My Lords, the Minister’s response to that intervention from the noble Earl illustrates the lack of knowledge among those who are indulging in the gesture politics occupying us this afternoon. The fact of the matter is that, as the noble Earl, Lord Clancarty, referred to, already the United States is destroying items that have ivory as an ingredient. We will come to that later in today’s debate, but take as an example an art deco figure with an ivory head and a silver body. The ivory head would be taken out. There is a particularly graphic example of a Victorian salt and pepper pair, dating from, I think, 1874. They were beefeaters, and the faces were ivory. They were destroyed. This is the stuff of madness.
My noble friend Lord Hague speaks with passion, and I hope I rival his passion in wanting to preserve elephants, but he does not seem to understand the difference between antique objects and artefacts and modern things. He talked about fakes, but there are fakes in every walk of life and in every form of antique—we know that. But we would not clamp down on the sale of pictures because occasionally a fake appears on the market. We have to be moderate and sensible in our approach.
I will reflect on what has been said and I may well bring something back on Third Reading. I shall certainly test the opinion of the House on a later amendment this afternoon, but—
With respect, on this matter and with this amendment, I have no option but to tell my noble friend that I will say exactly the same at Third Reading. He says he intends to bring it back at Third Reading, but it is really a matter that we should deal with today, on Report. That is the way to deal with it. We have considered it in ministerial meetings and it goes to the very heart of the Bill. To take “exporting” out rides a coach and horses through the Bill’s premise, and I respectfully tell my noble friend that, at Third Reading, I will say exactly the same. If he does wish to test the opinion of the House, it should be at Report.
My Lords, obviously I will reflect on what my noble friend has said. I wish to test the opinion of the House on a later amendment but, for the moment, I will withdraw this one.
My Lords, before the noble Lord, Lord Cormack, sits down, he is normally on the ball on such issues but unless the Companion has changed, this is not an appropriate way to put down an amendment on Third Reading. That is done only on a narrow basis, including due to new information or clarification of something that was unclear at an earlier stage. I think he may have a bit of trouble with the Table Office should he try to put down a similar amendment on Third Reading. I am surprised by what he has said, as he is so fluent in these matters. I hope he will acknowledge that, on this, I am right and he is wrong.
I am aware of the general position—of course I am. But we are at the first debate and we do not know quite how the Bill will emerge today from Report. We will then reflect. The noble Lord would agree, I am sure, that that is entirely logical and sensible. For the moment, however, I beg leave to withdraw my amendment.
Amendment 1 withdrawn.
2: Clause 1, page 1, line 21, leave out “ivory in it” and insert “more than 20% of ivory in the case of furniture or other objects and 30% in the case of musical instruments”
My Lords, this is an amendment about which I feel particularly strongly, because it illustrates very graphically some of the nonsense in the Bill. The sentence that I wish to amend is Clause 1(5)(b), which states,
“an item that has ivory in it”.
If one accepted—and I do not—that there is any fairness at all in depriving people of the value of antique ivory objects, surely one can accept that something with an element of ivory in it does not need to be embraced by this Bill. We are talking of such things as the escutcheons on chests of drawers, the insulators of the handles of tea-pots and coffee-pots and the handles of fish-knives and fish forks. What a bureaucratic morass we will create if every item with ivory in it comes within the ambit of this Bill.
Later we will move to the percentage of ivory and to specific items. Indeed, the next amendment on the list, Amendment 22, also in my name, deals with ivory miniatures. There is an arbitrary limit in the Bill, and Amendment 22 proposes that it leaves out the words,
“with a surface area of no more than 320 cm²”.
We discussed the question of ivory miniatures in Committee. The Government have accepted that ivory miniatures should be exempt, and I am grateful for this. Many miniatures, though not all, particularly from the second half of the 18th century and the first two decades of the 19th century, were painted on ivory; of course, others were painted on vellum and other materials. The Government conceded that it would be a destruction of the heritage of many families with collections of family miniatures if we were not to allow those who had fallen on hard times to sell them, so ivory miniatures under 320 square centimetres are permitted. But why that arbitrary limit? As the noble Duke, the Duke of Wellington, reminded us in Committee, many ivory miniatures are slightly bigger than that.
Amendment 22 is a very simple, sensible amendment, which should certainly be put to the vote. All it asks is: let us not have the limit. We know that a miniature is a miniature. We are not suggesting that great oil paintings were painted on ivory or that miniatures are great things in size, but that they should not be so scrupulously and specifically defined. Surely that makes a great deal of sense. Whatever view one takes on the Bill and on items of antique ivory or items containing ivory—[Interruption.] Oh dear, I hope that is not the Library calling.
One accepts that a great bureaucracy will be created here. Even though the Bill will today, I hope, be made better than it was in Committee, we will have people paying registration and other fees, and we will have people with the power to go into houses and see what the occupants have got and all the rest of it. It is a much improved Bill, and we will come to that later, but we should make the bureaucracy as simple as we possibly can.
I do not want to detain the House long. We have had significant debates in Committee and many noble Lords raised these points at Second Reading, but I believe that it is a modest step that I am suggesting. I beg to move.
My Lords, I will speak to my Amendment 28, which is grouped with Amendment 2, which has just been moved by the noble Lord, Lord Cormack. Once again, I seek to entertain Members of your Lordships’ House with tales of the Northumbrian pipes. My amendment covers a very narrow part of the music industry, but I hope that it will receive sympathetic consideration today. I should declare that I am the president of the Northumbrian Pipers’ Society, which is not a paid role but one that I am very proud to have. I also declare that I own two sets of Northumbrian pipes, but neither contains any ivory.
In Committee, sympathy was expressed on all sides about the fact that the sale and hire of a small number of Northumbrian pipes—even a small number of Northumbrian pipes is quite a large proportion of the Northumbrian pipe market—would be caught by the Bill. I was very grateful that the Minister agreed to meet, and got his officials to meet, representatives of the Northumbrian Pipers’ Society to discuss their concerns about the Bill. I am also grateful to the senior official who met Andrew Davison, the chair of the Northumbrian Pipers’ Society. They discussed things in some detail in Newcastle. I know that that was appreciated by members of the piping community.
However, following that consultation and the serious look that Defra undoubtedly gave to the situation of the Northumbrian pipes, the Minister wrote to me and said that, while he recognised that a number of instruments were made after 1975 with ivory repurposed from billiard balls and other ivory items found in antique and bric-à-brac shops, those instruments would not meet the Clause 8 exemption for musical instruments as the ivory would have been worked into its present form after 1975, even if it came from—I understand that it almost always does—an older piece of ivory. That decision by the Government still causes concern among Northumbrian pipers, as the Minister will understand. Therefore, I tabled the amendment in my name to try to deal with this particular issue.
In his letter, the Minister said that although they had looked closely at the particular circumstances of the Northumbrian pipes, he regretted that it did not prove possible to amend the Bill in such a way as would not undermine the premise of the Bill or inadvertently create a significant, exploitable loophole. I agree with the Government’s desire to avoid the creation of a loophole—very much so—so the amendment that I have tabled tries to deal with that particular problem. The amendment states:
“An item that has ivory in it is exempt from the prohibition if it is a musical instrument that has been certified by the Northumbrian Pipers’ Society, or a similar approved organisation, as being a set of, or part of a set of, Northumbrian pipes made before the passing of this Act, and covered by a valid Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) certificate”.
Even if that is not the perfect formulation, something like that is an alteration that could be made to the Bill in order to deal with this specific issue.
I listened carefully to what the noble Lord, Lord Hague, said about exports and I agree completely, but we are not talking here about exports but about a limited UK market, which is being somewhat threatened by what has been proposed. Therefore, it behoves us to try to look for a way through to see if an appropriate amendment can be made.
I know that, all along, the Government have not wanted amendments to the Bill and have wanted speedy passage of it, but as we can see from the Order Paper today, the Government have had to introduce a large number of amendments themselves. Given that the Bill will go back to the House of Commons, it seems to me that it gives us an opportunity to make one or two minor amendments, such as the one that I am proposing, which in no way undermines the principle of the Bill.
We are talking about ivory from old billiard balls and broken umbrella handles; I have seen some of the instruments that have been made with ivory of this kind. I also believe that it is very difficult to remove ivory from most of the Northumbrian pipes that I am talking about, without causing both irreparable harm to the pipes and quite a bit of damage to the ivory itself. We are also talking about small quantities of ivory. If there was a verification process of the kind I am talking about, that would deal with the issue in a way that would be satisfactory to pipers, as well as helping to keep this important regional musical tradition going.
In tabling this amendment, I have had the support of the noble Lords, Lord Vinson and Lord Beith, both of whom live in Northumberland and understand the issue of Northumbrian pipes very thoroughly. Therefore, I hope the Minister will take account of the amendment. I am glad that my noble friends on the Front Bench have a later amendment which talks about a report on the workings of this Bill and what effect it might have on the sale and hire of musical instruments in the UK. I am very grateful for that particular form of words, and hope to support that amendment at a later stage. In the meantime, I hope that the Minister will give careful consideration to the fairly minor and limited nature of the amendment that I am putting forward.
My Lords, I once again declare my interest as chairman of LAPADA, the art and antique dealers’ trade association. The views I express today are my own, but they are informed by my involvement with LAPADA. I will speak to my Amendment 23 in this group, which, like my noble friend Lord Cormack’s, goes to the matter of the 10% de minimis rule. Given some of what I am about to speak of, I would like to say at the outset that my noble friend the Minister is not personally responsible for this Bill. When I had his job at Defra, I was the Minister responsible for the UK’s contribution to efforts to bear down on illegal wildlife trafficking, but by a quirk of restructuring of ministerial responsibilities, he is not. As always, he has conducted himself perfectly correctly through the passage of this Bill, even if I would have loved him to have persuaded his colleagues of its perverseness.
I am very disappointed to report that I have received no response on the points I raised concerning Art Deco artefacts and the UK’s ivory export figures—points which I at least regard as important. A vital element in any decision-making process is that those decisions should be made with as full a knowledge of the facts as is possible in the circumstances. For the last 18 months, profoundly misleading information about the extent of the UK’s role in the international movement of antique and worked ivory objects has been allowed to circulate and be regularly repeated, without being corrected by those who have been in a position to refute, or at least clarify, it.
In the period leading up to the Government’s ivory consultation, the UK’s “official” ivory export figures were employed by several high-profile wildlife organisations to justify their demands for a very restrictive ban on the sale of antique ivory. I refer to the information supplied by Defra to CITES each year. The Born Free Foundation claimed that for the period from 2006 to 2015, the UK’s exports represented 54% of the ivory exports from the entire EU, and that these exports comprised 25,352 ivory items. Indeed, my noble friend the Minister stated in Committee that, between 2005 and 2014, the UK had been responsible for 31% of the ivory exported from the EU for commercial purposes. The Environmental Investigation Agency claimed that the UK is the “world’s largest” ivory exporter. From this language, any sane, trusting person who cares about the welfare of endangered species would be forgiven for imagining that the UK exports thousands of ivory tusks to China as a commodity for carving—something that, if true, would indeed help to fuel the Chinese passion and demand for ivory. I should point out that, in fact, the world’s largest supplier of ivory to the world’s ivory markets is, of course, the continent of Africa.
The EIA announced:
“UK ivory exports are stimulating consumer demand globally, especially in Hong Kong and China, two of the world’s largest markets for both legal and illegal ivory. Even as the Government of China works towards closing its domestic ivory market by the end of 2017, the UK continues to inject a large amount of ivory into China”.
By any reckoning, those are strong and serious allegations, made even more powerful by the language employed and the standing of the body making them.
It is unsurprising, therefore, that the story was widely taken up by media organisations including the BBC, the Times, the Guardian and the Independent. This, combined with information pushed out by the wildlife NGOs direct to their supporters, formed an important part of the background commentary taken on board by the thousands of wildlife campaigners who responded to the Government’s consultation last autumn. Those were the 70,000 respondents referred by my noble friend the Minister when he reported at Second Reading that there had been overwhelming support for an ivory ban. In that debate, he referred to some figures—he repeated them in Committee—computed by TRAFFIC, notably that UK exports to China of objects containing ivory numbered 11,000 between 2010 and 2014.
However, my noble friend failed to cite analysis available directly from his own department concerning the numbers and types of ivory objects exported to China. Those who drafted his speech chose instead to quote third-hand information and interpretation by an NGO of the basic data held on the database of an intergovernmental organisation—information which, in turn, had been prepared by his department solely with CITES statistics in mind. I am not questioning the arithmetic of these third parties in generating such seemingly large export figures but I am seriously concerned about both the lack of care with which the numbers have been interpreted and, I have to say, the reticence of the government department from which they were originally sourced to explain them properly. It is particularly surprising if we bear in mind that the Government already had plans to introduce a ban that was to be among the toughest in the world.
Since Committee, the fellow trade body to LAPADA, the British Antique Dealers’ Association, to which I pay tribute, has made a freedom of information request to Defra. Using the data from that response, it has been able to demonstrate that no less than 74% of the published numbers of ivory items granted re-export permits by the UK over the past three calendar years—2015, 2016 and 2017—constituted piano keys. In 2016, Defra data showed that they represented as much as 81%. It does not take many pianos with ivory keys to cause the export figures to be bumped up enormously, because a piano usually incorporates 52 white keys. If one removed ivory piano keys from the export numbers and treated items such as chess sets as a single export, the true picture of the UK’s exports of worked ivory antiques amounts to an average of just 585 worked items a year, plus 58 pianos. In 2016, the official ivory export numbers prepared in the format required by CITES amounted to over 5,700 individual components or items, but those exports actually represented 541 worked ivory items or sets, plus 93 pianos. Removing pianos from the equation, the true number of antique exports that year amounted to less than 10% of the number submitted by the Government to CITES.
In the last few years, the UK’s ivory exports have amounted to just a few dozen items a month. No serious analysis could ever conclude that such low numbers of exported portrait miniatures, inlaid boxes or netsuke could have had an impact on the large ivory markets in places such as Hong Kong, whose registered ivory stockpile is equivalent to more than a million small carvings. The UK does not permit the commercial export of old ivory tusks, but between 2015 and 2017, CITES data shows that other EU countries—the noble Baroness, Lady Jones, referred to this in the previous debate—exported many hundreds of them, particularly to Hong Kong. Since a large old tusk can be fashioned into many small carvings, the tusks exported in 2016 by Belgium alone were equivalent to 20,000 carved items. If we take account of the piano keys issue and the fact that other EU countries have until recently been exporting hundreds of ivory tusks weighing many kilograms each, suggesting that in recent years the UK has been the world’s largest supplier of ivory to the world’s markets is nothing short of misleading. And it is not just misleading as to the numbers; it also wrongly characterises the nature of the exports. These are exports of small numbers of antique objects, often of cultural significance, which happen to incorporate ivory. They are not exports of reworkable tusks. I find it hard to understand why the very department which all along has held the key to this sort of information has failed to provide and use it and thereby properly inform the debate about an ivory ban.
Months have passed during which misleading figures have been employed by those seeking a very tight ban. Antique dealers are angry that full and transparent information was not voluntarily offered by Defra. Goodness knows how many hours of Civil Service time have been devoted to this Bill. Surely someone could have thought to provide a comprehensive analysis of the types of ivory goods being exported, particularly given that, as I understand it, BADA made such a request in its own submission to the consultation last December. If we do not know the quantities and types of different ivory objects being exported, how on earth can we ensure this well-intentioned Bill is properly targeted?
First, the Secretary of State has acknowledged that the UK ivory market has not been directly linked to the trade in recently poached ivory. Secondly, as I have demonstrated, the legal export trade in antiques made from ivory amounts to just a few dozen items a month. Consequently, suggestions that the sale in the UK of genuine antique teapots and Victorian sewing boxes is resulting in large exports to the Far East and helping to glamorise the purchase of ivory there, is just hogwash.
There have also been frequent references by campaigners and in some government literature to the idea that, unless the UK stops the sale of most genuine ivory antiques here, there is the risk that legal antique ivory could be exported into China and may become mixed with illegally sourced ivory, thereby supporting demand for poached ivory. This represents a sloppy and lazy analysis. If we are talking about importing raw ivory tusks into Hong Kong, I would of course agree. We know that the ability of Hong Kong to import raw tusks from other EU countries has opened up a loophole to justify the existence of poached raw tusks kept in the storerooms of workshops there, but that is not what is happening in respect of the UK’s exports. Most of the types of antiques traded in the UK that contain elements of ivory, such as Georgian inlaid boxes or silver fish slices comprising 15% or 20% ivory, are of no interest to ivory buyers located in the demand markets of Hong Kong, Vietnam and China. The other types of ivory objects, such as solid ivory carvings, can indeed be of interest if they are from the Asian culture. But, as I have already explained, their export numbers amount to a handful a month. Why, therefore, do we need to prohibit the sale here of many thousands of genuine historical and cultural objects which are either of no interest to the demand markets or, if they are, are exported in such small quantities, and will be sufficiently highly priced, that they could never be masking the sale of cheap modern bangles and Buddhas?
Thirdly, we should be honest and openly admit that this Bill is really about sending a signal to the world that the UK really cares about the plight of the African elephant. I am happy fully to support this. I welcome the provisions in the Bill that incorporate the inspection and certification of items, particularly solid ivory carvings, because the UK should do its bit to reduce the opportunities for poached ivory to be laundered as old ivory.
In the context of the recent Illegal Wildlife Trade Conference, I am also delighted to hear that the Ivory Alliance 2024 has been set up by Governments to tackle the demand for illicit ivory in those countries that act as key transit and demand markets. I understand that the intention is to introduce ivory bans in those markets. I understand why endeavours such as the alliance mean that it has been necessary for the UK to take, and be seen to take, the lead. This does not, though, mean that the Bill cannot still retain its impact and fulfil its principal aim of helping conserve elephant populations while, at the same time, allowing the sale of items that have neither a direct nor indirect impact on the demand for poached ivory in those demand markets.
The Bill exempts musical instruments containing less than 20% by volume of ivory while for all other items the threshold is 10%. No evidence has been brought forward by anyone to explain the particular features of a Georgian tea caddy containing 12% ivory that render it more likely to be reused or valued for its ivory content than a set of bagpipes with the same ivory content. Neither is in demand in China. The vast majority of historical objects where ivory is not the predominant material are not valued on the basis of their ivory content. This would apply to items containing a slightly higher proportion of ivory than the Government’s proposed 10%, such as 19th century Vizagapatam inlaid boxes. The ivory is incidental and integral in such items and not vulnerable to re-carving. The boxes are therefore not purchased for their ivory content. Besides which, little bits of ivory inlay just one or two millimetres thick have no resale value. No evidence has been put forward by the Government to suggest otherwise.
The same applies to plenty of other objects that comprise less than 20% ivory. Indeed, had this not been the case it would have been hard for the Government to proceed with their 20% threshold for musical instruments. Had the Government possessed evidence that sets of bagpipes are being purchased with a view to removing and re-carving the pipes’ ivory mounts then I am sure they would have been reluctant to opt for a 20% threshold for instruments. Besides which, somebody buying a mixed-material object with the express purpose of removing and reusing its ivory content is certainly not interested in its original purpose, musical or otherwise. They will simply look at the price and the amount of ivory incorporated in it.
No evidence has been brought forward by anyone in any of the debates to suggest that where ivory represents less than 20% of a historical object it contributes to poaching. Furthermore, the proportion of ivory in objects such as wooden boxes inlaid with small slivers of ivory will be extremely difficult to calculate. There are many such boxes hovering around the 10% threshold. Owners will be required to perform complex calculations to determine the proportion of ivory. This is completely unnecessary because, regardless of the proportion of the ivory content, small slivers of inlay have no possible reuse. I have previously restated that I am concerned as to how much time will be devoted by hard-pressed wildlife crime officers to the process of checking these computations.
The House should be made aware that other countries use 20% as a cut-off. For example, in France, items incorporating less than 20% ivory do not need to apply for a sales certificate. Those with more than 20% need government confirmation that they were created before 1947. New York state also employs a cut-off of 20%. The amendment proposed by my noble friend Lord Cormack would change the Clause 7 threshold from 10% to 20% and thus bring consistency to the new law, rendering it fairer and simpler to understand and apply, without in any way fuelling ivory markets in the Far East.
My Lords, I shall speak to my Amendments 24, 32 and 36. Before so doing, I reiterate my declarations of interest in the register from Committee stage. In particular, I am president of the British Art Market Federation. I also own a number of ivory objects, as defined in the Bill. At least as relevant as that, I begin by saying that I like and am interested in old things. I had the privilege to chair for 10 years the Reviewing Committee on the Export of Works of Art. I am proud that I was appointed by the party opposite and reappointed by the party on this side of the House.
The purpose of my three amendments, which are linked, is simply to remove the requirement for registration of those items containing a de minimis amount of ivory, as described in Clause 7, prior to any possible sale. My arguments seem, in general terms, rather aligned with those of the noble Baroness, Lady Quin, and those concerned about musical instruments. The fundamental point is that my amendments entail no change to the substantive law being proposed, nor to the fundamental structure of the scheme around which the Bill is made.
We all know, as others have said, that we all support the underlying purpose of the Bill, which is to stop elephants being slaughtered for their tusks. The means that have been deployed to bring that about is to stamp on and out the trade in ivory that endangers elephants, graphically and appropriately known as bloody tusks.
The point behind my amendment is simple. The category of items I am looking at has no impact on the trade in ivory to the Far East that is endangering elephants. This point is recognised on all sides. The Government have spelled that out in the Bill’s Explanatory Notes. The conservation movement has specifically said the same, for example in the World Wildlife Fund’s briefing on the Bill. TRAFFIC, probably the most respected collector and interpreter of data about the ivory trade, as reported in the Art Newspaper, agrees. The art world—I draw your Lordships’ attention to a couple of articles by that respected authority Anna Somers Cocks in the Art Newspaper over the summer—is absolutely clear that these items in no way have anything to do with the demand in the east for ivory. Rather, we are talking about—as has been mentioned—inlays, shards and veneers: thin slivers of ivory, not the kind of thing that the noble Lord, Lord Hague, saw at a London airport. The Far Eastern market likes chunks and lumps of ivory that can be carved. The kind of things that I am concerned about cannot be, because they are physically no longer capable of being dealt with in that way.
It is very relevant that the general approach adopted in the Bill is paralleled elsewhere in the world in this thoroughly commendable and good attempt to outlaw elephant poaching. This pattern invariably includes a de minimis exemption, defined slightly differently from jurisdiction to jurisdiction. As far as I have been able to establish, however, nowhere else on earth is there a requirement to register these de minimis items. This is an example of British exceptionalism.
The category that I am concerned about includes the most numerous items: there are thousands, or possibly tens or even hundreds of thousands, of things in this country that fall within the definition of Clause 7. Many of these have already been mentioned, including brown furniture and tropical hardwood. Most, but not all, of these things are of relatively low value—£150 or less. I do not say that nothing in this category is expensive, but the vast bulk of these items are not, in any way, at the top end of the antiques world’s interest. Finally, while these things are not necessarily identical, they are all very similar, because the vast majority were made in different places across the country by skilled craftsmen from pattern books.
At the risk of stating the very obvious, registration involves two things: first, you have pay a fee. Secondly, you have to actually register. What would be involved, as a result of the Bill, is quite time-consuming and not necessarily completely straightforward. If you want someone else to register for you, you will invariably have to pay for it. The Government have assured us that the fee payable will not be high, but they have also said that it will have to be in line with the HM Treasury guidelines on cost recovery. Given that the vast majority of possible registrations do not come from this category, the conclusion that I have rather reluctantly come to is that the real reason for introducing the requirement to register is not to protect elephants in Africa and Asia but to use it as a cash cow to bankroll the registration system in this country.
In this context, the definition of “high” depends on the value of the item in question, regardless of the personal circumstances of its owner at the time. As I have said, we are not talking about very expensive things. Secondly, in addition to the fee there is the cost of completing the form, which may involve someone else doing it, thereby incurring an additional charge. How might this work? Somebody gave me this example. If you live in London and your surviving parent, at the other end of England, dies, you may take from their house the odd piece of furniture or whatnot. Most people, however, live in quite small houses and would ask the local auctioneer to clear out their parent’s house. The auctioneer would no doubt do it but would say, “We cannot sell anything that has a bit of ivory in it unless we register it, and we will charge you for that”. By the time you have concluded that you will not get much for the contents, and that you will have to pay the auctioneer’s commission, the registration fee and the cost of the person carrying it out for you a couple of hundred miles away, you will ask yourself whether much is left over. Given that things do not always sell at auction, before you know it this whole process will cost more than the value of the item in question. That is a pretty strange state of affairs.
If that happens, there is a real risk that the artefact in question will be destroyed.
It is as the noble Viscount rightly says. But some will then say, as mentioned in Committee, that it is not necessary: “Selling it doesn’t matter—give it away to a charity shop”. What is a charity shop to do with it? It will want to sell it to somebody else, so it will be caught by the requirements for prior legislation. The only way that I can see this chain of argument evolving is that we may end up with refugees from other parts of the world surrounded by battered Georgian furniture, which seems a pretty surreal destination.
As the noble Viscount, Lord Hailsham, said, the likely result of all this is that a significant quantity of all the items—which, let us not forget, have real cultural and historical significance for this country—will end up on the tip. In addition, let us not forget that going to the tip along with the ivory will be a lot of tropical hardwoods such as mahogany, rosewood and so on. For a country that cares about these things and tells the world how much they matter, as we do, to legislate and consign them to the tip in Britain seems ludicrous, and a sad end to the ivory and mahogany involved. If I might misquote John Betjeman:
“Goodbye to old things. We who loved you are sorry
They’ve carted you off by refuseman’s lorry”.
By no stretch of the imagination could these things harm anyone or anything. In a free country one should, as a matter of principle, be able to sell freely items of that character. You should not need a state commissar’s authorisation to do so. From what I have heard, the Government’s case for this registration is illogical, not based on the evidence, completely disproportionate, philistine and a gratuitously destructive proposal. As a consequence, I am strongly opposed to it.
My Lords, I shall speak to Amendment 22 but, before doing so, I should like to support the noble Baroness, Lady Quin. I knew little about Northumbrian pipes until she spoke in Committee but her amendment seems entirely reasonable and I really hope that the Government will support it.
As I did in Committee, I declare an interest in that my family’s collection of works of art includes many items containing ivory but, as I also said in Committee, this is really a non-interest as I have no interest whatever in selling any of those items. However, the main point of the Bill, which I think we all support, is to try to protect elephants. I therefore completely support it and am very persuaded by what the noble Lord, Lord Hague, said in respect of Amendment 1. I agree with him that to exclude exports from the Bill would undermine some of its objectives and am very pleased that the noble Lord, Lord Cormack, withdrew that amendment.
However, I say to the Government that some of the restrictions on the exemptions are too restrictive. Amendment 22, which I am speaking to, has great substance and we should support it. After all, the Government have accepted the principle that portrait miniatures should be exempt. As we all know, they are painted on a tiny sliver of ivory. In no way does the value of a portrait miniature consist of its ivory content; it is in the quality of the painting or the identity of the sitter. Therefore, one really cannot pretend that it is a significant factor that so many portrait miniatures are painted on ivory.
The Government, therefore, have rightly accepted this principle. However, it is so surprising that they then restrict this to miniatures with an area of 320 square centimetres. I think I remember the noble Lord, Lord Gardiner, in replying in Committee, saying that this restriction would capture 90% to 95% of miniatures. I have to say to the Government that if you accept the principle of exempting miniatures but wish to capture only 90% to 95%, why not exempt all portrait miniatures? That seems logical and I cannot imagine that it creates a loophole that would give any concern to all of us who support this Bill.
That is really the main thrust of what I wanted to say. I really hope the Government will think again on the matter. I am minded to support a number of other amendments about percentage of content and other matters, which seem to make the Bill a little more flexible. It will be easier to establish that an object is exempt if we do not define the percentage of ivory content too narrowly. Therefore, I hope some of these other amendments will be put to the vote.
My Lords, like others I am in favour of conservation, especially of endangered species. I noted with satisfaction the introduction of this Bill, intended to help with the conservation of elephants. Like most Members of this House I find elephants fascinating. They are magnificent creatures that have impacted on human history in many varied ways—by accompanying Hannibal, by logging in the Asian jungle and by delighting us in literature such as Kipling’s Jungle Book and in Disney’s blockbuster.
Many other noble Lords are much more expert in this area than I am so initially, I did not seek to contribute, for instance at Second Reading. However, I was approached by an acquaintance who is an antiques auctioneer in my native West Country. He complained that the detailed arrangements proposed in the Bill—the subject of this group of amendments—would have a significantly adverse effect not only on business but on many who enjoy artefacts, often made with small amounts of ivory. Comparable conservation benefits could be achieved by less onerous arrangements.
I examined the detail of the Bill about which complaints were being made. I am afraid that I was disappointed to find that his claim was in essence true. As the Bill stands, many objects which have given pleasure to many people sometimes over many decades or, indeed, centuries will be rendered valueless and unsaleable. There is every chance that as a consequence, many will simply be dumped—the logic of my noble friend Lord Inglewood’s example. This is appalling, especially since the conservation benefits for elephants from such actions when the Bill comes into effect in 2019 will be vanishingly small. Claims to the contrary are, if I am polite, unconvincing.
In the impact assessment of 23 May there appears to be no estimate of the disposal cost of dumped items as over time, millions of low-value products are sent to landfill or to be burned. It is indeed one of the least impressive impact assessments I have seen. For example, there is an assumption that the many small antique businesses and market stallholders will spend only half an hour each on familiarising themselves with the new rules, and at an hourly rate of £11.34, that would not pay for the time of a lawyer or a responsible business owner or manager seeking to address the minutiae of the new rules and registration process. My experience of business suggests that the cost of compliance will be 10 or 20 times that.
Impact assessments are meant to be about avoiding needless and verified cost, not an opportunity for uncosted and contentious statements such as that in paragraph 62:
“Benefits to UK citizens whose welfare will be enhanced from the knowledge that the UK is playing its part to bring an end to the illegal trade in ivory that is threatening to bring extinction to African elephants”.
That does not sit well besides the news in this week’s Sunday Times that export numbers from the UK are actually quite small and more than half seem to be piano keys individually catalogued. My noble friend Lord De Mauley suggested that the figure is higher than that. I say in passing that the ivory costings are not a good precursor to the impact assessments for the new legislation and SIs that we are going to have post Brexit.
In my quest to support the Minister’s policy, I have tried, but failed, to find any proper peer-reviewed academic articles proving a link between these modest UK sales and the onerous new controls, despite the creditable interest in this whole subject of so many charities and others that want to do the right thing. Indeed the one peer-reviewed article the Library found for me suggested that a failure to enforce CITES and other ivory legislation and the absence of effective anti-poaching controls in the elephants’ homelands are at the heart of the problem. More resources for both would yield substantial dividends.
I have made inquiries of the government machine to see whether the measured representations already made by some noble Lords in Committee might have produced some amelioration in the technical provisions of this Bill on Report. However, I was not encouraged, hence my support today for Amendments 23, 24, 32 and 36 in this group and Amendments 3 and 4 in the next group. They would all to some extent mitigate the adverse effects to which I have referred. They would represent a welcome move towards common sense, which I always like to apply to legislation that comes before this House. I urge the Minister to accept them.
My Lords, I rise to speak to my noble friend Lord Cormack’s Amendment 2, but what I have to say is in support of all the amendments in this group, including that tabled by the noble Baroness, Lady Quin, on Northumbrian pipes. Sharp-eyed noble Lords will have noticed that I put my name to a number of these amendments and then withdrew it. That was not because of lack of support but because I thought I was not going to be here performing professional duties, and I thought it discourteous to your Lordships’ House to sign amendments and not be here. That depends on noble Lords’ point of view.
I think everyone who has spoken in this debate and all the other debates about the Ivory Bill endorses the principle of trying to prevent elephant poaching—it is a dreadful thing—and thinks that we need to do all we can to stop it. As a matter of fact, robust action against poaching is probably the most effective way, but an effective, proportionate and reasonable way of disrupting the trade is also appropriate. That is the purpose of this Bill, but we have to apply the test of proportionality to identify whether the actions contemplated by the Bill are proportionate in their consequences both ways. There are two very serious disadvantages associated with what this Bill is about—I shall come to the amendment specifically.
The first, which my noble friend Lord Cormack dealt with quite correctly and at some length, is the interference with private property. This Bill is flagrant interference with private property, and my noble friend Lord Inglewood takes the same view. At the same time, there will inevitably be a consequential loss and destruction of the artefacts. The description of trying to sell a low-cost bit of brown furniture—although of quite interesting historical value—and it proving impossible will inevitably lead to the skip.
There is therefore a cost in all of this: a cost to principle and a cost to artefacts. That takes me on to the question: what will this Bill achieve in stopping the elephant poaching or trade? I share the view of my noble friend Lord De Mauley: I suspect very little. What this is actually about is sending a message, but messages go unheeded and unheard, and I am sure that this one will. It is about making gestures, but often these gestures should not be made. I remember the Dangerous Dogs Bill. I remember unit fines in the magistrates’ court. These were gestures that should never have been made and messages that should never have been sent.
Against that background, I turn to the way of addressing what has been identified. This Bill is going to pass, and I agree with my noble friend the Duke of Wellington that it should pass. However, there are defects within it, and the defects are being addressed by looking at the exemptions. This House should be trying to enlarge the exemptions and seeking to put in further provisos. It is in that spirit that I propose to support probably all the amendments in respect of which your Lordships’ opinion is sought, and I hope there will be quite a few Divisions. I think, too, however—and this will be to the great relief of your Lordships’ House—that the views I have expressed, which are general to the amendments in this group, actually apply to all the other amendments and will not require any repetition from me.
My Lords, I rise to speak to my Amendment 25, which is a very specific amendment and rather esoteric, but I will come on to that in a moment because I really just wanted to register my agreement with the previous speakers that this Bill is far too restrictive. We are banning ivory items and ivory inlays and items containing ivory that have no possibility of being recarved in the Far East for sale on to that market and no prospect of having any value in themselves. An ivory carver sitting in Vietnam, for instance, would have no interest in carving a sliver of ivory to go into a false 18th century box. It would just make no sense at all and it would be nonsense. We ought to have a sense of proportion about what we are trying to do in this Bill.
What we are trying to do is to stop large lumps of ivory being exported to countries where they will be recarved and converted into the items that their populations think are attractive and for which they will pay good money. This is not an emotional business; it is purely a financial business. If we ban the export of large items of ivory, or their sale in this country—because they will be smuggled out of this country eventually, just as rhino horns are smuggled out of here, which is a similar problem—we will achieve what we can achieve in respect of saving the African elephant using the antique ivory trade.
As has been said, the protection of the African elephant is not down to what is sold as Christie’s in King Street in London. It is down to whether we can finance the actions against the poachers, whether we can train the police and protection officers in those countries, whether we can arm them properly, and whether we can ensure that the supply routes where the ivory is taken out of the country are shut down. That is what it is really all about. It is not about this gesture politics Bill. That is what it is about, and that is what we should be concentrating on.
I add something that has not been mentioned because it is not politically correct to do so. A lot of ivory is not obtained by rogue poachers; it is done with the connivance of people who are very powerful in the countries where the elephants are, and they make a lot of money out of it.
My noble friend the Minister assures me that several of the countries which have large numbers of elephants are in favour of us banning the sale of ivory. I am perhaps too cynical. Perhaps I have lived too long a life dealing with rogues and rascals both in politics and in business, but if I were trying to make money out of selling ivory, I would try to shut down part of the market which I thought conceivably—however misguidedly—could be competition. In other words, I would of course say, “Ban the ivory market. Ban, ban, ban”, so that I can kill the elephants in the savannah and make money by selling those tusks to Hong Kong.
I should apologise, because perhaps I should have made that speech during Committee but, as some noble Lords will know, I was under the depredations of various surgeons then, so I apologise for not making it then.
My Amendment 25 is rather esoteric. It is even more esoteric than the Northumbrian pipes of the noble Baroness, Lady Quin. Under the Bill, an item which is detachable and can stand alone is an individual item and is therefore treated as such. This is not usually important, but it is very important if you are dealing with scientific instruments. The way that 18th-century or early 19th-century mercury barometers are regulated is by a little knob that pulls out. It is detachable and independent of the barometer itself. You would use it to adjust the vernier on the scale to measure the height of the mercury and to put pressure on the mercury reservoir at the bottom of the barometer, when you regulated the barometer to show the correct barometric pressure, to make sure that the mercury was at the right level. So it has two functions.
My amendment is specifically designed to say that this knob should be treated as part of the barometer, not as a separate item, because these knobs were almost always an ivory disc—not dissimilar, I have to say, to the discs used in so many other things, such as portrait miniatures, tickets for theatres, and so on, which have no commercial value for recarving. They have commercial value because there are artistic elements to them, but the knob has no commercial value. If I tell your Lordships that they are 2.54 centimetres in diameter, those of you with a scientific bent will know that that is an inch. They are of a maximum of an inch in diameter, very thin and on a metal shank. All I am trying to do by the amendment is to ensure that antique dealers do not have to throw away the integral knob when they sell the barometer.
My Lords, I apologise for not having spoken at Second Reading, so I shall speak very briefly. I fully support Amendment 2, tabled by the noble Lord, Lord Cormack, as well as the other amendments in the group. I believe very strongly in the protection of endangered species, but I also believe strongly in the protection of cultural heritage. The principles I hold on culture are no different from those I held on a previous Bill that passed through this House concerning the protection of cultural property in time of war. As it stands, this is a lop-sided Bill. We need to prevent the destruction of our cultural heritage, which, for some objects, is a far more likely outcome than the Minister thinks, unless the exemptions are allowed.
My Lords, I rise briefly to speak against this group of amendments, and I shall not repeat arguments made at length at Second Reading and in Committee. I have tremendous respect for the noble Lord, Lord De Mauley, and his obvious passion for antique ivory and for others who have spoken in this debate, but I fear that I am not persuaded by their arguments.
It is essential in ensuring the success of the Bill when it passes into law that the restrictions and exemptions are very limited. To increase the exemptions to 20% for furniture and other objects and to 30% for musical instruments and to have unlimited size on pre-1918 portrait miniatures risks driving a coach and horses through the Bill. Any widening of the criteria will increase the market for ivory objects, weakening the entire purpose of the Bill by allowing trade in many additional items containing significant amounts of ivory. Similarly, moving away from the de minimis cut-off should be rejected. Registration of ivory-bearing items is fundamental to ensuring that items sold commercially meet the criteria set out in the Bill.
Having listened to the arguments made in Committee and this afternoon, I acknowledge that there is no meeting of minds over the rationale for the measures in the Bill. The Government and those of us who support the Bill believe that these restrictive measures will help to protect the elephant. Those who oppose it do not believe that this will happen and are therefore not prepared to support these measures. This is regrettable in the extreme. Everything that we know about CITES supports the Government’s Bill. We do not support making the Bill more flexible in terms of exceptions. I urge your Lordships to reject this group of amendments.
My Lords, if one passes a Bill that defies common sense, one is inviting the law to be broken. Most people will never have heard of the Ivory Bill and will just carry on giving, swapping or doing what they do. However, if the Bill is drafted in such an overly restrictive manner, as previous speakers have illustrated so well, it will invite people to be dishonest. This amendment is important because it enables common sense to be brought back into the whole equation.
My Lords, the more difficult it is to register, the more difficult it is to decide what needs to be registered and the more difficult it will be to maintain the register. You cannot watch everybody doing everything. It is very important that matters are simple and can be taken on board by everybody. When I was 12 years old, my father had my portrait miniature painted on ivory. I hope it will not be caught by the Bill.
My Lords, I agree with the Bill and its intentions, but it is has failed the test of proportionality in many respects. I would not have supported my noble friend Lord Cormack’s amendment, because I thought it was too wide, but I support Amendment 24, in the name of my noble friend Lord Inglewood, on the need for de minimis registration. To introduce bureaucracy of that sort is quite crazy. Some of us have been fighting for years to prevent intrusion into people’s houses. I am glad to say that that has been reduced with the help of the Law Lords and happens much less now.
However, something like this is absurd. I remind your Lordships that in 1966, when there was a Labour Government and an economic crisis—they went together at that time—they introduced a statutory instrument requiring anybody who owned more than three gold coins to hand them in, but it was tokenism. People did not do it, of course. I remember various questions being asked about how many convictions there had been, and how many coins had been handed in. The answer was none.
Unenforceable law is bad law and we really must not encourage it. Some of the provisions of the Bill are so OTT that we must stand up to them, particularly as they have nothing intrinsically to do with the Bill. I support my noble friend Lord Inglewood’s amendment.
My Lords, my noble friend Lady Quin has spoken eloquently on the effect of the Bill on future generations of Northumbrian pipers. Like her, we cherish musical tradition and would not wish the music played by pipers and enjoyed to cease. I pay tribute to the department for organising a visit by a member of its team to assess the instrument and thank her for meeting the society. However, as has been reported back to the department, some of the pipes have problems under the Bill. It is my hope that the Northumbrian Pipers’ Society itself can take on a role in seeing that instruments are recycled to new pipers through bequests and other measures, and that new instruments avoid the provisions of the Bill. It would be difficult to create a new exemption for Northumbrian pipes. As the House will later see, we have tabled Amendment 78 to report on the effects of the Bill on musical instruments more generally. Evidence provided through the consultation, including from the Musicians’ Union, showed that the vast majority of commonly played and traded instruments, including violins, pianos and bagpipes, comprise less than 20% ivory.
Turning to Amendment 2 and others in this group, we do not support what they wish to achieve, which amounts to a reduction in the provisions and effectiveness of the Bill, which is a commitment of both parties to introduce a ban on the sale of ivory. The Bill includes limited exemptions to the ivory trade that are sufficiently narrow to ensure that they will not contribute to the poaching of elephants. The carefully crafted clauses represent the culmination of a productive collaboration between NGOs, law enforcement, museums, art dealers and musicians. It is Labour’s view that the Bill strikes the right balance. I call on all the proposers of amendments in this group to withdraw or not to move their amendments so that future generations can enjoy living in a world with elephants.
The Illegal Wildlife Trade Conference, held earlier this month in London, underlined the importance of the UK putting in place a near-total ban on UK ivory sales as soon as possible. This legislation builds on the resolution agreed at the 2016 Conference of the Parties to CITES to phase out domestic ivory markets and will give the UK greater credibility in continuing to press other key countries in south-east Asia with a history of ivory trade to commit to closing their markets and to implementing strong domestic ivory bans. China closed its ivory market in 2017. Ivory poaching is now the fourth-largest crime sector after arms, drugs and trafficking. I remind your Lordships’ House that 20,000 elephants are killed each year, or some 55 a day.
I turn to Amendment 24 in the name of the noble Lord, Lord Inglewood, which seeks to remove registration as a precondition of allowed sales of de minimis objects. The noble Lord raised concerns about proportionality and others have followed with remarks on both the registration fee and administration involved, which would necessitate photographing, measuring and examining the object for any distinguishing features before uploading the information to a database. I am sure the noble Lord would accept that photographing, measuring and examining the object for any distinguishing features would be part of any normal process of listing an item for sale at an auction house or on an online marketplace. It is our view that 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 the exemption to the ban on dealing in ivory. Crucially, by registering an item through the system, the applicant will be confirming that, to the best of their knowledge, all the information provided is correct and 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 key and necessary part of the regulations.
Amendment 22 in the name of the noble Lord, Lord Cormack, would remove the size criterion for portrait miniature exemptions. The noble Lord will recall from our previous consideration of this issue that the Government added the category of portrait miniatures to the list of exemptions in Committee in the other place. Emma Rutherford, a representative of Philip Mould & Co, an expert on portrait miniatures, gave evidence on how the exemption for portrait miniatures could be refined to add a size limit, and agreed that the suggestion of six inches by eight inches would be sensible. This is 320 square centimetres, which would allow between 90% and 95% to be exempt. The Government have moved considerably on many of these features and I therefore call on the House to reject these amendments.
My Lords, these amendments relate to the scope of the ban and, in particular, some of the exemptions to it. I emphasise how uncomfortable I am in having to address this to a number of my noble friends, but I do so with great sincerity. The department has undertaken extensive consultation with a broad range of stakeholders, including the music sector, the antiques sectors and all the sectors engaged, as well as NGOs interested in conservation, to shape the Bill and, in particular, to establish a narrow and carefully defined set of exemptions.
I was struck by what my noble friend Lord Hailsham said—he used the word “proportionate”. The architecture of this proportionate approach has been carefully designed to balance the need to close our domestic markets with consideration of the interests of those who currently own certain items of ivory and the obligation to protect our cultural heritage. I think that my noble friend Lord De Mauley was in his position at Defra when my party had a manifesto pledge, in 2015, for a total ban. We have considered with the consultation that there are proportionate ways of approaching what is an imperative: to do everything that we can to stop the incidental and direct pressure on the elephants on this planet. That is why I will cut to the chase and say that the Government cannot support the amendments in this group. But I would like this opportunity, as is only reasonable, to set out why in more detail.
Amendment 2, tabled by my noble friend Lord Cormack, serves to alter the definition of ivory in Clause 1 of the Bill. This amendment would mean that any item with less than 20% ivory or any musical instrument with less than 30% ivory would be excluded from the ban, meaning that it would remain legal to deal in such items. Indeed, they would be within the scope of the rest of the Bill. The amendment does not state whether this threshold refers to volume, weight or another measurement. There is no backstop date referred to. This amendment would mean that items of any age with less than 20% ivory or any musical instrument with less than 30% ivory would not be affected by the ban and would only be subject to existing CITES regulations. This amendment would greatly undermine the scope and purpose of the Bill.
My noble friend Lord Cormack’s Amendment 22 refers to the exemption for pre-1918 portrait miniatures. The amendment would remove the size qualification, excluding the frame, from the exemption. We had this discussion in Committee, and my noble friend the Duke of Wellington referred to his own personal and rather considerably sized portrait miniature, which he rightly said he had no intention of dealing or selling. As the noble Lord, Lord Grantchester, said, this size qualification was developed from evidence provided during a House of Commons evidence session by a portrait miniatures expert. This evidence suggests that the size qualification, as we have heard, would include in the exemption 90% to 95% of pre-1918 portrait miniatures, which is the majority. Any item that falls outside this size qualification may also be exempt as an item of outstanding artistic, cultural or historical value and importance if it meets the criteria, which will be set out in regulations. The Bill makes clear that a frame would not be included in the calculation of the surface area of a portrait miniature. As I said, we will be developing detailed guidance on how to measure surface area, in consultation with relevant stakeholders.
Amendments 23 and 26 would raise the thresholds for the de minimis exemption, which is for pre-1947 items with low ivory content, and for the pre-1975 musical instruments exemption respectively. The thresholds for these exemptions—10% for de minimis and 20% for musical instruments—were established in close consultation with industry experts and wider stakeholders. We believe that they demonstrate a proportionate approach and retain the integrity of the Bill’s overarching purpose. We must not lose sight of the importance of this purpose: to close our ivory markets and to help to ensure the future of a magnificent species. To broaden the scope of these exemptions would serve to weaken the ban, undermine the carefully balanced architecture of our exemptions package and threaten the very purpose of this Bill.
The 10% de minimis threshold will allow dealing to continue in items such as inlaid furniture but will prevent dealing in other items that contain larger amounts of ivory. Information on how volume should be assessed will be outlined in guidance. When registering an item, the owner will conduct a self-assessment on the volume of ivory in their item in line with this guidance, meaning that the item will not be damaged. There are parts of the world that interpret the de minimis threshold differently. For instance, in California, a 5% threshold is in place. I can tell the noble Lord, Lord Inglewood, that in New York state a permit is also required for sale. I will find out whether that is the case in other parts of the United States or the world.
Through our consultation, and evidence from the Music Industries Association heard during the Commons Committee stage, we are assured that the majority of commonly played and traded musical instruments and accessories contain less than 20% of ivory, which is our threshold for this exemption.
Amendments 24, 32, 35 and 36, tabled by my noble friend Lord Cormack and the noble Lord, Lord Inglewood, deal with the requirement to register items under the de minimis exemption prior to engaging in commercial activity. The effect of these amendments would be to remove the need for items meeting this criterion to be registered by the owner prior to their sale or hire. As I have explained, the de minimis exemption is one of five separate categories of exemption to an otherwise total ban on sales. As such, it is imperative that it is treated in the same way as the other categories in order not to undermine the integrity of either the Bill or the compliance process.
The compliance process is, of course, also the key means of providing reassurance to purchasers that they, too, are acting in compliance with the ban. A person who purchases an item that has not been registered may also be found to be in breach of the ban and liable to sanction. A responsible purchaser should therefore inspect the registration document, and may also cross-reference it against the entry in the online database, before committing to the purchase.
I very much understand the point raised by the noble Lord, Lord Inglewood, and the noble Baroness, Lady Flather. However, the Government consider that an online self-registration system represents the most proportionate means of ensuring compliance. We will put in place an efficient, easy-to-use and non-bureaucratic process designed to meet the needs of all users. It will place a small administrative responsibility and a small financial cost on the seller—the person who will benefit financially from the exemption. We recognise that potentially a substantial number of items would fall under this exemption and that there may be cases where an individual has a high volume of similar items requiring registration. That is why we are developing this system in close consultation with a variety of stakeholders who will use it, including owners and dealers of pre-1947 items with low ivory content, to make sure that it is able to meet their specific needs as far as possible.
The online self-registration system will encourage people to engage actively with the new measures by confirming that their item does indeed meet the exemption. This registration process will be important for both buyers and sellers, as it will provide assurance to both parties that the commercial exchange taking place is fully compliant with the law. People purchasing ivory items that are exempt from the ban and have been correctly registered will be secure in the knowledge that their purchase is legal. The online self-registration process will be quick and easy to use. I emphasise that there is no intention for the process to be burdensome and bureaucratic for those wishing to engage in legal activities in ivory. There will be provision for those unable to access the online system to register their items through offline means. The noble Lord, Lord Inglewood, used the words “cash cow”. I should say that a small fee will be charged, but again there is no intention that this will be prohibitive to users. We believe that this is indeed a small cost when considering the critical objectives that this compliance process will help us to achieve.
I am very grateful to my noble friend. Can he give us an indication of what the level will be?
No, my Lords, I am not able to give an exact sum.
No, I am not going to give an approximation. I used the words “a small fee”, and it will be considered in what would be the normal manner in which fees are considered. I have put on record that it will be a small fee. It is not intended to be burdensome or bureaucratic. I emphasise—given that we wish to reduce demand for ivory, as it is no longer a desired object around the world because of the continuing slaughter of elephants—that we need to do everything we can. That is why we want to protect sellers and buyers in those exempt areas which we have agreed in the Bill and to give them an assurance, given the fact that around the world we are seeing the closure of domestic markets of ivory, that this protects future sellers and buyers of the items within our exemption package.
I believe, and the Government believe, that the online self-registration system will have a range of benefits. It will provide assurance to those dealing in ivory through an exemption that they are complying with the law. It will also be an essential tool in identifying breaches of the ban. Enforcement officers will be able to use material submitted to the online system to monitor compliance and to support investigation into potential offences.
Of course, every individual has the right to own and enjoy items made of or with ivory and to bequeath and inherit those items without the need for registration. Indeed, many of these items will have sentimental value. It is only in the case of selling, hiring or using an item for commercial gain that registration will be required, which we believe is a proportionate response. We must ensure that robust measures are in place to enforce the Bill. Therefore, it is critical that all exempt items are subject to registration to support the rationale of the Bill but also, as I said, to support the interests of the sellers and buyers of exempt ivory.
Amendment 25, tabled by my noble friend Lord Carrington, seeks to clarify, with reference to the de minimis exemption, what is to be considered integral to the piece. Ivory must be,
“integral to the item’s design or function and contemporaneous with the item”.
I preface my remarks by saying that I am very pleased to see my noble friend returned to his place following his time in hospital. We have given this issue very careful consideration, and I hope that my forthcoming explanation will provide him with reassurance as to the intent of this exemption.
My noble friend correctly identifies that the ivory content of an item meeting this exemption must be incorporated into the piece at the time of its manufacture and to constitute an irremovable aspect of the item’s form and function. The ivory cannot, of course, have been added at a later date or be superfluous to the design and/or function of the item. As drafted, the Bill takes account of these concerns. Clause 7 provides that the ivory must be integral to the item, and may not be removed without difficulty or without damaging the item. Most obviously, that would apply in the case of inlaid furniture. But it would also apply where the ivory element were part of a detachable part of the item that is itself integral to the piece. If I may explain further, I would point to a teapot or serving dish with an ivory handle to the lid. The lid is clearly integral and contemporaneous to the teapot or serving dish, and the ivory handle is integral to the lid. Therefore, providing that the total volume of ivory in the item is less than 10%, it would meet the de minimis criteria.
There are other types of items, such as barometers and maybe small sewing boxes, for which the ivory content may be an entirely separate element, such as a knob on a barometer or the lid of a sewing box. These elements were clearly designed to be removable yet are integral to their design and purpose. For instance, without the knob—my noble friend Lord De Mauley raised this in Committee and my noble friend Lord Carrington raised it today—one may not set the mercury level on a barometer, and without the lid, assuming that it is less than 10% of the volume of the whole piece, the item could not function as a box. We will set out in guidance not only what I have described as examples but more fully the points that my noble friends have raised.
Amendment 28, tabled by the noble Baroness, Lady Quin, would add a new clause after Clause 8 to exempt any,
“musical instrument that has been certified by the Northumbrian Pipers’ Society, or a similar approved organisation, as being a set of, or part of a set of, Northumbrian pipes made before the passing of this Act, and covered by a valid … (CITES) certificate”.
In Committee, I gave an undertaking that my officials would meet the representatives of the Northumbrian Pipers’ Society, and a very informative meeting was held.
As the noble Baroness knows, I am sympathetic to the Northumbrian piping community and the traditions. However, her amendment would constitute a widening of this exemption. Interestingly, my official identified that most pipes contain less than 20% ivory by volume, which was the initial concern in Committee. It then became more apparent during the detailed consideration —for which I am most grateful to the Northumbrian Pipers’ Society—that some Northumbrian pipes were made after 1975 with ivory repurposed from other items, and therefore will not be covered by the musical instruments exemption. The noble Baroness’s amendment would, however, allow Northumbrian pipes made with ivory right up until this year to be exempt from the sales ban. We believe that that would create an unjustifiably broad exemption for one instrument over all others. I should emphasise that those instruments not covered by the exemption will still be able to be played and enjoyed, and that the ban will not affect the ability to pass on or donate those instruments for future generations.
I apologise to noble Lords for taking some time, but I want to emphasise that the Government have embarked on considerable consultation in bringing forward the exemptions package. We remain of the view that they are reasonable. Phrases such as “gesture politics” do not chime with me. I attended the Illegal Wildlife Trade Conference, as I said on an earlier group of amendments. The word that came from that group, which represented over 80 countries, was “leadership”. It was about the leadership that this country is taking. That point was endorsed by five heads of African states. I hope that my noble friend Lord Carrington will forgive me, but my impression from meeting people at that conference was that they were not cynical.
They were not cynical. They were men and women from countries that are the most dramatically affected by the slaughter of elephants. These are the vulnerable villages and communities of Africa that are losing one of the most important economic engines for their prosperity. If any of those people had heard some of the comments this afternoon about gesture politics and cynicism, they might have despaired of this country. That is not the purpose of this legislation. Its purpose is to ensure that this country does everything possible—everything—to play our part in saving one of the planet’s most important and iconic animals. I have to say—and I will close with this—that in the end, whatever points my noble friends have made this afternoon, the interests and importance of these animals must always come before those of privately owned objects.
My Lords, I do not think there is anyone in your Lordships’ House who would find a bad word to say about my noble friend Lord Gardiner. He is rightly popular in all parts of the House; he is assiduous, diligent and personable. In every sense, he is someone we can all like. However, he has a touching faith in certain people from certain countries, and a touching faith in his ability to create an unbureaucratic system. I beg to differ. I do not want to make a long speech; I made a very short one in moving this amendment, and my noble friend has made a fairly considerable response—for which we are grateful, of course. The fact of the matter is that he fails to understand that you can be passionate about preserving elephants—as I think every Member of your Lordships’ House is—but at the same time see that this Bill is riddled with anomaly, and has many faults.
As for miniatures, why let 5% or 10% “get away”? Why not have a clause that covers and preserves all miniatures? And why have this obligation to register everything? It will create a great bureaucracy. No elephant in 2020—or 2019, when this Bill comes into force—will be saved by the insistence on registering a chest of drawers with ivory escutcheons made in 1790 or 1810. No elephant will be saved by insisting that, if a miniature comes above the stipulated size, it cannot be sold. The noble Baroness, Lady Bakewell, and I know we will never agree on this. She talked about miniatures and failed to accept the point made by my noble friend the Duke of Wellington, who said that their ivory content is of no substance or value at all—never mind the fact that it is generally 200 years old. It is the work of art, or the likeness of the person depicted, that gives value to the miniature, not the thin bit of ivory on which it is painted.
We could have a much better and less bureaucratic Bill if only these simple points were registered and accepted. I know that my noble friend is obdurate. I know, from talking to the Secretary of State—who is always courteous, but is inflexible on this—that my noble friend really has no leeway when he stands at the Dispatch Box. However, I would like to test the opinion of the House.
24 October 2018
Division on Amendment 2
Amendment 2 disagreed.View Details
Clause 2: Pre-1918 items of outstanding artistic etc value and importance
3: Clause 2, page 2, line 11, leave out “pre-1918” and insert “pre-1947”
Member’s explanatory statement
Without this amendment, Art Deco objects of outstandingly high artistic, cultural or historical value, for example, will not be eligible for an exemption certificate.
My Lords, some noble Lords have noticed that the wording of Amendment 3 was jointly tabled by my noble friend Lord Carrington of Fulham and me in Committee. At that time, I said that I reserved the right to bring it back on Report, particularly as some of the issues I had raised had not been addressed in the Minister’s responses. I want to reiterate what I said in the last debate but the points are all, none the less, relevant. The types of items that would be exempted by the amendment to change the Clause 2 date from 1918 to 1947 could in no way be seen as directly or indirectly encouraging demand for ivory in Asia. Unless they are musical instruments or contain less than 10% ivory, items incorporating ivory may be sold only if they are,
“of outstandingly high artistic, cultural or historical value”,
and must predate 1918. Objects such as pianos with ivory keys need only predate 1975, and the low ivory content objects, 1947.
Art Deco style is a highly regarded genre that flourished between the Great War and the Second World War. The V&A Museum held a major Art Deco exhibition in 2003 and some of the 20th century’s greatest designers and sculptors, including Demétre Chiparus, produced Art Deco artwork that sometimes incorporated ivory elements. One of his works—the sculpture in bronze with ivory elements—was regarded as such an important work of art that it sold at auction for a six-figure sum. Examples of his work feature in the collection of the world-renowned Museum of Fine Arts in Boston. Yet as the Bill stands, it would perversely forbid the sale of the most outstanding and rarest examples of Art Deco design while allowing the sale of ordinary upright pianos mass-produced as recently as the 1950s. Changing the dateline for Clause 2 from 1918 to 1947 would bring it into line with the Clause 7 exemption dateline for objects comprising less than 10% ivory.
Turning to my Amendment 4, to benefit from the Clause 2 exemption and be granted an exemption certificate, an historical artefact incorporating ivory needs to be inspected by appointed specialists and to pass the hurdle of being,
“of outstandingly high artistic, cultural or historical value”.
The antiques trade supports the concept of ivory artefacts being checked by third parties and granted exemption certificates—something both LAPADA and BADA suggested should happen more than two years ago. As I said at greater length in Committee, reports compiled by concerned parties into the problem of identifying old ivory have all focused on the low-priced, solid ivory carvings and trinkets and not on culturally valuable works of art such as portrait miniatures or inlaid Georgian furniture. The trade fully agrees that all solid ivory carvings should be subjected to third-party scrutiny since they are more difficult to appraise than objects made from a mixture of materials. Other materials provide a context in which the style, workmanship and condition of the ivory element can be judged.
Regrettably, the unnecessarily narrow formulation of the Clause 2 exemption will end up prohibiting the sale and, over time, result in the inevitable loss of many thousands of genuine antique objects that fail to meet the “outstandingly high” requirement. Among examples of what will become prohibited items are Victorian chess sets, ivory crucifixes, Georgian silver teapots with ivory handles, 18th-century ivory portrait silhouettes, and 19th-century sandalwood sewing boxes. I could add to this list items of cultural significance for other cultures, such as Japanese netsuke. These types of item are not made from modern ivory and have been acknowledged by the Secretary of State as having no connection to the trade in recently poached ivory. They are all capable of being assessed for authenticity by knowledgeable specialists who can readily tell them apart from most modern-day bangles or trinkets. I point out to your Lordships that museum curators and experts such as those on “Antiques Roadshow” regularly make judgments about antique objects and most of the time do not need scientific evidence to do so. Scientific dating of ivory is, though, available as a last resort.
There is no evidence that Far Eastern buyers are purchasing vast quantities of items such as English silver cutlery with ivory handles or 19th-century gentleman’s travelling boxes containing inserts with ivory lids. Those who appreciate history and an understanding of our past are concerned for the many thousands of objects which are of intrinsic historical, social and cultural value but will fail to meet the “outstandingly high” test. That the Bill does not ban their ownership or prevent their being inherited or gifted to a museum will not prevent their destruction or loss over time. Museums do not have the resources or storage space to accept large additional numbers of artefacts, many of which will already be represented in their collections. There is no guarantee that the family members of an owner of an early 19th-century chess set will want to inherit and care for it themselves. What precisely will be its fate if it has no resale value? I can tell your Lordships now: it will be thrown in the bin. An item that is part of our cultural and social history will simply be unavailable to future generations.
One cannot understand history and learn its lessons by destroying it. I would be more willing to accept losses such as this if I felt that some good would come of it—that the life of a living elephant in Africa would be saved as a consequence. Yet no one has provided any evidence to demonstrate that the sale in this country of a genuine, third-party authenticated Victorian chess set has any direct or indirect connection to the poaching of elephants in Africa. First, if it has been checked as being genuine, by definition it cannot be made from poached ivory. Secondly, as I have already demonstrated, it is untrue to suggest that large numbers of these items are being shipped to the Far East. Thirdly, the United Kingdom is not itself importing raw ivory to fabricate fake Victorian chess sets. To be quite frank, we do not have the skills to do so anyway. Finally, British antique collectors are not interested in any modern ivory items.
The Bill’s aim is to help to conserve elephant populations and, more specifically, to reduce poaching. Paragraph 6 of the Bill’s Explanatory Notes expresses the entirely understandable desire that objects from the UK should not, whether intentionally or inadvertently, contribute to markets that create a demand for ivory. The vast majority of the many thousands of cultural objects that will fail the current Clause 2 test are of no interest to Asian buyers because they do not acquire English or European antiques. Where the Explanatory Notes refer to a demand for ivory, they automatically characterise all objects made from ivory as homogeneous and interchangeable, regardless of their age, cultural origin or historical significance.
Since most of the ivory objects offered for sale in the UK are of no interest to Chinese buyers and those that do hold their interest are exported in only very small numbers, restricting exemption certificates to items that are of “outstandingly high” rather than “high” artistic, cultural or historical value is disproportionately restrictive. The term “outstandingly high” never featured in the Government’s consultation document. The concept envisaged a year ago was that “significant” cultural or historical items should be exempted. No one has brought forward any evidence to demonstrate why this change was required to fulfil the Bill’s aims.
My small amendment would therefore result in the Secretary of State’s assessors being required to conclude that objects containing more than 10% ivory are of high artistic, cultural or historical value. This would remain a significant hurdle for objects to surmount: assessors would be required to conclude that an item that incorporates ivory provides us and future generations with a high degree of valuable historical or cultural information. The sale of ordinary mundane objects such as bangles or ivory chopsticks would continue to be prohibited. I beg to move.
My Lords, I wish to refer briefly to Amendment 6, which is grouped with my noble friend Lord De Mauley’s leading amendments, as is my Amendment 5. I will not speak to that amendment; my noble friend Lord De Mauley has effectively covered it, because I also want to take out the word “outstandingly”.
My Amendment 6 would take out the words “an important” and put in “a significant”. That might sound of no significance, but it is. My noble friend Lord De Mauley talked about the sort of objects we will be dealing with here. One of the things that attracts me to social history is the things that people used and gave. I once knew a man—I have mentioned him in your Lordships’ House in earlier debates—who had an amazing collection of theatre and race tickets. Many of them were in ivory. They could not be called outstanding and I do not think that any of them could be called important, but significant they most certainly were. This was a collection that reflected the social history of the mid-18th century: the people who patronised the playhouses or went to the racecourses and gained admission by presenting an ivory ticket or token. A large collection such as the one my friend had is of some value. Many of the examples were indeed individually unique; no other tickets to that particular theatre or performance was known to exist.
I referred to this earlier when I talked about the first amendment: he collected these things because of their intrinsic interest and his own fascination with social history, but also because of the knowledge that collectively, even though he probably had not given more than £10 or £20 for any individual item, the collection was worth something. He knew that if he fell on difficult times or wanted to help a son or daughter, there was a little nest egg that would probably produce a few thousand pounds. If we enact the Bill, we will deprive a collection and a collector like that. We are effectively confiscating private property. We are not physically destroying it, although, as my noble friend Lord De Mauley said a few minutes ago, that might well be the ultimate result, but we are saying to somebody that that property, legitimately and lovingly acquired, is no longer theirs to dispose of for any money at all. That is unjust and wrong. I return to the old, worn record: how does preventing the sale of such a collection, the items in which are all of some significance, help in any way to preserve an African or an Asian elephant in 2019 or 2020?
We are all concerned about the elephants—we keep coming back to that—but there is nothing incompatible between being desperately keen to save elephants and being desperately keen to save elements of our social history.
My Lords, I do not want to intervene for long, but there is a slight problem with the definition of “outstandingly”. What is outstanding to one expert may well not be to another. I raised this at Second Reading. It comes down to what sort of museum collections you are trying to create. Museums such as the V&A or the British Museum are interested only in outstanding items, and they can define what they mean by an outstanding item by reference to what they already have in their collections: to be outstanding the item should add to that collection.
Many museums, however, are not trying to do what the British Museum or the V&A do. The example that I have used before is the Geffrye Museum, a series of old almshouses on the continuation of Bishopsgate, just outside the City of London. The Geffrye Museum recreates middle-class rooms down the ages. Those middle-class rooms will have ivory items—ivory cutlery and tea caddies for example—none of which is outstanding in itself. However, items are outstanding in the sense that the Geffrye Museum considers them exemplars of what was used at that time by middle-class people—and increasingly, in some museums, by working-class people in this country. The definition of outstanding is, therefore, somewhat open to interpretation and it would be much better to remove “outstandingly” and replace it with a word such as “significant”, which would allow much more leeway in deciding whether an item is worthy of a national collection or is something that no one is interested in preserving.
My Lords, my concern is with the effects of this Bill, which may come to be criticised in the fullness of time, as elephant stocks recover and beautiful objects are lost as a result of it, and collectors of Art Deco work containing ivory are stopped in their tracks. I accept that, as we have heard from the Minister, Defra Ministers consulted during the Commons stage of this Bill, but the debate here has shown that some further changes are needed in the interests of common sense. So I support the amendments in this group from my noble friend Lord De Mauley.
I hope that the Minister will be a bit more receptive than he was towards the previous group, and ask whether he can think of any ways to reduce the concerns of people such as us about the perverse effects of these arrangements, for example in the guidance he described earlier.
My Lords, as on Amendment 1, I briefly draw attention to the importance of international co-operation in implementing the policy of which the Bill is a part and which these amendments would affect. We will not be able, by anything we do in our Parliament of our own volition, to save the African elephant, but we are able to be part of a concerted and perhaps, one day, successful international effort, represented by, among other things, strong bans on domestic markets.
I mentioned in my earlier intervention that China is now implementing a near-total ban, and the effect of China announcing that last year was to reduce the price of ivory in China by about two-thirds in one year. Pursuing that policy is the way to destroy the profits and attractions of the criminal networks engaged in this trade. That is why strong domestic bans in many parts of the world—in range countries, demand countries, transit countries—are so important.
If I have understood these amendments correctly, they could represent a more serious dilution of the exemptions in the Bill than the previous group. That would be serious, because in some respects it would leave us with much less of a total ban than exists in the United States or China. The Minister was right to say, on the last group, that the Government have consulted widely, and I believe that they have reached the right balance, so unlike my noble friends I would not encourage him to be more receptive to this group than to the last.
My Lords, I am grateful to the noble Lord, Lord Hague, for so eloquently setting out the case. The removal of “outstandingly” or “outstandingly high” would substantially increase the number and types of items that qualify for exemption. The purpose of the outstanding artistic value exemption is to allow the older items of exceptional artistic value to be traded.
The exemption before us would undermine that purpose and risk weakening the Bill by enabling trade in many pre-1947 worked items. The proposal of the noble Lord, Lord Cormack, to replace “important” with “significant” will similarly severely weaken the exemption criteria. It will already be possible for Art Deco items to be purchased by museums from private owners under Clause 9, which intentionally does not specify the age of ivory artefacts that can be acquired by museums. It is unwise and unnecessary to widen the exemption further.
As I said, those who support extending the exemptions do not see that this increase in items containing ivory will impact on the elephant population. Unfortunately, they are not correct. It is also wrong to assume that anything that is not exempt, or does not get a certificate, will be destined for the rubbish dump. Families will keep their personal artefacts and furniture containing ivory and pass them on to their children or grandchildren. Unfortunately, a lot of hysteria is being generated.
The monitoring of the elephant population, particularly in Africa, is much more sophisticated nowadays—due to the use of drones—than previously. The sad truth is that the population is down to 400,000. For the first time since records were kept, the number killed each year is higher than the number of live calves born. It is time to make a stand, and it is obvious that this House—across the political divide—supports the Bill. While the Ivory Bill is not perfect, it is a significant step forward in protecting the elephant. We must show the world that we are serious, in the hope that others will follow suit. We cannot support this group of amendments.
My Lords, I shall respond to these amendments, which would move the applicable date for exemptions from pre-1918 to pre-1947 and would lower the threshold for exemptions, allowing larger numbers of items containing ivory to be bought and sold.
As has been said, these amendments will considerably weaken the impact of the Bill. As the Minister explained in Committee, 1918 was chosen because it defines items which are 100 years old and therefore classified as antiques. A move to include more recent items for exemptions, as suggested in Amendment 3, would inevitably increase the number of items containing ivory in circulation. It would include a much wider group of objects than the Art Deco items which the noble Lord seeks to protect. In any prohibitive Bill of this kind, it is impossible to find a perfect date from which to apply the constraints. As we have mentioned several times, we would have preferred a complete ban on ivory sales but, if there has to be a cut-off date for exemptions, we agree that 1918 has the best logic. Of course, as has been said, that would not affect the ownership or gifting of items, nor the continuing trade in Art Deco items which do not contain ivory.
We have similar objections to Amendments 4, 5 and 6. We believe that the criteria should be set higher, if anything. Indeed, we proposed an amendment in Committee to curtail exemptions to the rarest and most important pieces of their type. Our aim should be to avoid all subjective definitions or scope for ambiguity to ensure that the market for ivory is properly closed down and that the professionals making the judgment have a clear mandate within which to operate.
As we have heard and debated several times now, some noble Lords opposite have never accepted that there is a link between the antique ivory trade and the current slaughter of elephants. The noble Lord, Lord Cormack, described the debate as a worn record and I think we are all beginning to feel a bit like that. But a growing body of evidence shows that illegal new ivory is smuggled across borders and mis-sold online as antique ivory. That is at the heart of our debate but I do not feel that there is any meeting of minds on the issue.
It is perfectly possible to forbid online sales, full stop. We would not object to that. Again, as has been implicit in all our arguments throughout every stage of the Bill, it is perfectly possible to insist that only registered auction houses and registered dealers, whose expertise has been established, can deal in ivory. All of that we have said time and again, so it is quite unfair for the noble Baroness to make such a sweeping statement.
I find it ironic that the noble Lord talks about sweeping statements. The fact is that we talked about having a complete ban on online sales. Indeed, colleagues on the Lib Dem Benches proposed that in Committee; it is perhaps sad that they have not brought it back on Report. The noble Lord, Lord Cormack, will also know that the reason we are here today is because we already had a ban, which was meant to constrain what auction houses and so on were doing. It was then found that illegal pieces were passing through the auction houses.
I am not saying that the Bill is perfect; it is not, but it is a considerable step forward from the previous legislation. The Government would not be pursuing the Bill, with our support, if they did not feel that the evidence was compelling and overwhelming. The noble Lord, Lord Hague, is absolutely right: we have to close down the domestic ivory market, not for its own sake but because this is part of an international movement. Only when we all share the same broad objectives internationally will we actually be effective in all this.
I was quite offended by some of the comments from the Benches opposite in the previous debate, which somehow implied that there was a conspiracy among some African countries on this issue. I do not see it on that basis. I too attended the Illegal Wildlife Trade Conference and the Minister was absolutely right. There were Heads of Government there and people in various senior positions from all round the world, including the African nations. They were absolutely passionate about needing to protect the elephants and protect their economic interests in the longer term, and therefore to close down the illegal ivory trade. Until we all understand why that is necessary, we will not be able to make much progress on this. On that basis, I therefore urge noble Lords to reject all these amendments.
My Lords, these amendments seek to widen the scope of the Clause 2 exemptions, which provide for:
“Pre-1918 items of outstanding artistic … cultural or historical value”,
and which are rare and important examples of their type. Their effect would be to increase—in some cases quite significantly, as noted by my noble friend Lord Hague—the number of items that would meet the criteria to be exempted under this category. This exemption is just one of a package of five carefully balanced and deliberately limited exemptions. This package was developed following extensive consultation with stakeholders and represents what we believe is a proportionate and reasonable approach, while retaining the integrity of the Bill’s critical purpose. The exemption in Clause 2 recognises that there is a strata of items, made of or containing ivory, which are traded for their artistic, cultural or historical value rather than their ivory content. This exemption is specifically intended to be narrow and applicable only to rare and important items of their type.
Amendment 3, tabled by my noble friend Lord De Mauley, would change the backstop date of this exemption from 1918 to 1947. That would significantly increase the number of items which fell under the exemption. I recognise my noble friend’s concerns that ivory items from the Art Deco period would not be included in the exemption. However, I emphasise that the intention of the Bill is to ban dealing in ivory with narrow exemptions. In the case of any ban, there will always be items that fall outside any exemptions. We believe, as I am sure many other noble Lords do, that the 1918 backstop date is reasonable and proportionate.
However, as per the exemption set out in Clause 9, acquisitions by qualifying museums will not be affected by the ban—this was noted by my noble friend Lord Carrington and mentioned in her speech by the noble Baroness, Lady Bakewell. Significant items from the Art Deco and Art Nouveau periods may be sold to accredited museums, where they may be enjoyed by the public and preserved for the nation. I reiterate: the Bill has no impact on any individual’s right to personally own, bequeath, gift or inherit these items.
Amendments 4, 5 and 6 would alter the definition of items in this exemption by removing “outstanding” or “outstandingly high”, and replacing “important” with “significant”. The effect of these amendments would be similar to others, by significantly increasing the number of items which fall into this category. In setting the criteria for this exemption—my noble friend Lord Carrington raised this—we will draw on existing criteria used to assess pre-eminence and national importance, such as the Waverley criteria and the export licensing regime for cultural objects. We will of course consult and work alongside expert institutions, museums and other key stakeholders to establish regulations setting out the detailed criteria for this exemption.
We are clear that items must be valued for their artistry, historical or cultural value, not their ivory content. As my noble friend Lord Gardiner and my right honourable friend the Secretary of State have said on a number of occasions, the Government intend to reduce the desirability of ivory items domestically and internationally. But nothing in the Bill will prevent anyone continuing to appreciate, enjoy or admire the artistry or craftsmanship of any ivory item that they own, have collected, have been given or have inherited.
My noble friends Lord De Mauley and Lady Neville-Rolfe talked about the inevitable loss of items. Why will these items be lost? The items might be artistic— perhaps an Art Deco sculpture. Why would they be destroyed? They might be theatre tokens, as in the case mentioned by my noble friend Lord Cormack. These items are interesting and elements of our social history; you would not destroy them.
They are also personal property, legally and properly acquired by people who felt that they would at some stage be able to sell them if they needed to. This is an invasion of private ownership and the principle of being able to dispose of what you legitimately acquired and own.
I think that we have been through that particular hoop a number of times. Indeed, this Bill complies with the European Convention on Human Rights. It is a proportionate response to an issue of global concern.
These objects will not be destroyed. Perhaps even if individuals no longer want them, they could do what I do and give them away or use Freecycle for items with little sale value. I find items on Freecycle last for about a day. There are many options available to individuals who want to pass on their items containing ivory.
With that explanation, I hope that my noble friend feels able to withdraw his amendment.
My Lords, I have seen the result of the whipping by the three main parties in your Lordships’ House this afternoon, despite none of them addressing, or apparently even understanding—as was amply demonstrated a moment ago by my noble friend the Minister—the critical points some of us have raised. To divide the House on Amendment 3 would be futile and I am not in the business of wasting the House’s time. Let me therefore withdraw the amendment by quoting our Lord from Luke, chapter 23, verse 34:
“Lord, forgive them, for they know not what they do”.
Amendment 3 withdrawn.
Amendments 4 to 6 not moved.
7: Clause 2, page 2, line 18, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 2(3)(c) currently allows the Secretary of State to use guidance to specify matters that must be taken into account when considering whether an ivory item is of outstandingly high artistic, cultural or historical value. This amendment requires these matters to be specified in regulations instead.
The amendments in this group arise from the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. I thank the committee for its report, which has been extremely helpful in developing further how key parts of the Bill are to be implemented. The committee made a number of recommendations suggesting that negative resolution regulations, instead of guidance, should be used to set out certain matters.
First, Clause 2(3)(c), which allows for “other matters” that may be taken into account when deciding whether a pre-1918 item is of outstanding artistic, cultural or historical value, will be amended to be set out in regulations. “Other matters”, in this context, are in addition to consideration of the rarity of an item and the extent to which it is an important example of its type. Such matters might include an item’s religious significance, scientific importance or whether it has previously been on public display.
The Government agree with the Delegated Powers and Regulatory Reform Committee that in this case, guidance would not be an appropriate method of detailing the other matters that prescribed institutions—museums with expertise in ivory items—should take into account when providing advice on whether items are of outstanding artistic value and importance. As the committee notes, setting out regulatory requirements in guidance can mean that a person can have an element of choice about whether to follow them. This is not the Government’s intention and we therefore accept the committee’s recommendation.
Amendments 7 and 11 also replace powers to set out in guidance additional information that those applying for an exemption certificate under Clause 2 and those registering items as exempt under Clause 10 must include in their applications. This is in addition to that set out in the Bill under Clause 3(1) and Clause 10(1). Work on the implementation of the Bill has revealed that it already lists all the information we will need to issue exemption certificates and handle registration applications. We therefore accept the committee’s recommendations with respect to Clauses 3 and 10 by requiring additional information requirements to be set out in regulations rather than guidance, should a future Government need to do this. While important details will be set out in regulations, the Government will still produce guidance that will help applicants navigate their way around the application processes for both the exemption certificate and registration regimes.
Amendments 14 and 38 remove Clause 4(8) and Clause 11(5) from the Bill. These provisions allow guidance to be used to set out how applications for exemption certificates and registrations must be made. Guidance may, for example, require applications to be made electronically or online. The Government have decided to allow maximum flexibility with regard to how applications may be made and will therefore be removing these powers from the Bill because they will no longer be necessary.
Applicants for exemption certificates and those registering items as exempt will be able to apply online or download forms to be completed in hard copy for postal submission. They will also be able to telephone or email requests for copies of forms to be sent to them by post. This is to reflect the diversity of persons that may wish to submit applications, which may range from private individuals without internet access to large auction businesses.
Will they be able to apply by post? Do they have to download it or get it by email? My noble friend said they can send things in by post. Many of these people will be very elderly and will not necessarily be familiar with modern devices.
I will make sure that I get a precise note. The whole purpose of us saying that people can apply online and offline is precisely to cover the diversity of private individuals, as I mentioned. I will just check for my noble friend whether a form can be sent or whether it has to be downloaded.
The answer, apparently, is that there will be a range of opportunities for people to receive forms—online or not. I am told that a hard copy application can be requested by telephone. I think that covers, in one way or another, most people in this country.
The committee also recommended that Clause 5 should include more details about the appeals regime, rather than leaving it to secondary legislation. Amendments 17 to 21 deliver the committee’s recommendation. First, the amendments set out in the Bill that the First-tier Tribunal will hear any appeals against a decision by the Secretary of State not to issue an exemption certificate or to revoke an existing certificate. As many of your Lordships will know, the First-tier Tribunal has wide experience of hearing appeals concerning regulatory matters and, indeed, is the body to hear appeals against decisions to serve civil sanctions in Schedule 1 to the Bill. The amendments also set out in the Bill the grounds on which an appeal may be made and the powers of the tribunal on hearing an appeal. The only matters that will be left to secondary legislation will be any further grounds that the Secretary of State may wish to add and the cost of an application for an appeal to the tribunal. I acknowledge once again the recommendations of the Delegated Powers and Regulatory Reform Committee, and I beg to move.
My Lords, I support these amendments. We are very pleased that the Government have listened to the delegated powers committee and have addressed its concerns about too much detail being contained in guidance. We will return to this issue when we debate our Amendment 40, which seeks to establish regulations about how those dealing in ivory can verify the exempted status of the piece being bought or sold.
We also welcome government Amendments 17, 18 and 21, which considerably tighten up the basis on which appeals on exempted certificates can be made. We raised this issue in Committee and are very pleased that the Government listened to those arguments and have produced specific grounds for appeal that cannot be used to undermine the clarity of the decision-making process. We therefore support these amendments.
My Lords, I think it is customary that I thank the noble Baroness very much for her support for this group of amendments. It is an indication of the importance of the work of your Lordships’ House and the committees.
Amendment 7 agreed.
8: Clause 2, page 2, line 18, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.
My Lords, the UK Government have acted in accordance with the devolution settlements and engaged throughout the process with each of the devolved Administrations on the territorial extent and implementation of the Ivory Bill across the UK. I am pleased to say that the Governments of Scotland and Wales have both clearly expressed their support for the Ivory Bill. We have also worked closely with the Northern Ireland Department of Agriculture, Environment and Rural Affairs.
The UK Government’s engagement with the devolved Administrations concluded that dealing in ivory items either within a devolved country or between a devolved country and another part of the UK is a devolved matter. For instance, a dealing conducted wholly within Scotland or between Scotland and Wales will be devolved. Dealings between any part of the UK and a third country remains a reserved matter. The UK Government have therefore come to an agreement with the devolved Administrations to ensure that these devolved interests are protected through a number of amendments tabled in the name of the Minister.
The government amendments ensure that most regulations under the Bill that apply in relation to Wales, Scotland or Northern Ireland may be made only by, or with the consent of, Welsh Ministers, Scottish Ministers or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. If a devolved Administration does not provide consent, it can make its own regulations. The only exceptions are the powers to set fees by regulations and the publication and consultation of enforcement guidance, which remain exercisable by the Secretary of State but will require consultation with Welsh Ministers, Scottish Ministers and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. These exceptions are made simply because the power to prescribe fees and the publication of enforcement guidance are technical matters.
We have also agreed to a minor amendment to specify Scottish Ministers as the appropriate body to publish a list of accredited museums. This change was requested by the Scottish Government as a reflection of the different status of Museums Galleries Scotland and Arts Council England and does not alter in any way the effect of this provision.
I assure noble Lords that the Scottish Government and the Welsh Government have confirmed that they are content that these amendments accurately reflect their devolution settlements and their rights under those settlements. These two devolved Administrations will issue legislative consent Motions ahead of Third Reading and the appropriate official procedure will be followed with respect to Northern Ireland. I beg to move.
I thank the Minister for her introduction and explanation of these amendments concerning the devolved Administrations. I listened carefully and I have one or two queries. It would be helpful if she could clarify the source and inspiration behind the amendments, bearing in mind that they were not tabled for Committee and so their impact was not debated. Will she outline the problem that her department seems to have stumbled across and to which these amendments are the solution? They seem to point to inconsistencies in the Bill between devolved competences and Clause 37(1)(b), on regulatory provision, that I need to grasp. Has the Minister’s department run into problems during dialogue on the Bill with one or other of the devolved Administrations? She did not seem to suggest that.
The Minister’s letter dated 19 October concerning the government amendments stated that the Secretary of State will be able to make regulations with the consent of the relevant Administrations, leaving aside for this purpose the requirement merely to consult on the fees or guidance. I remain unconvinced about how the involvement implied under consent will lead to more effective implementation of the Bill. On the contrary, there is concern that these amendments could result in unwarranted duplication of legislation and bureaucracy, at best, and regulatory divergence and differences at worst. It is regrettable that this group of amendments has been tabled so late in the process and that the House has not had more time to consider the matter. Will the Minister explain why she concluded that these provisions are necessary, bearing in mind that this is a reserved matter, as she said, and that there does not seem to be any policy differences between the UK Government and the devolved Administrations? Does she share the concern that the authorities will have to duplicate the canopy of administration when they may not have the required expertise in dealing with ivory or the trade in endangered species? Can she assure the House that these amendments will not lead to a delay in implementing the Bill or in commencing regulations or to it being implemented on different dates in different parts of the UK?
I thank the noble Lord, Lord Grantchester, for his comments. I reassure him that these amendments came out of lengthy discussions over time. They were laid when they were laid—in good time consideration by your Lordships on Report, I think—as a result of a timeline issue. It was necessary to establish whether certain issues were devolved or reserved matters. In my opening remarks I made it very clear that we have listened carefully to the devolved Administrations and that we now fully understand how we can practically make sure that the Bill works in every country of the United Kingdom. I agree with the noble Lord that there could be concerns about bureaucracy and duplication but I think that because of the conversations we have had with the devolved Administrations, that will not be the case. Many of the systems will be used by every country. The enforcement regime will be the same, although it will be conducted by different people north of the border. OPSS, the enforcer in the first instance, operates nationally. When we look at these amendments, it is important that we respect the devolution settlement that we have reached with these nations. We thank the other Governments for their support in pushing this forward. Although the noble Lord has concerns, I reassure him that I believe they will not come to pass.
Amendment 8 agreed.
Amendments 9 and 10
9: Clause 2, page 2, line 21, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.
10: Clause 2, page 2, line 21, leave out “his or her” and insert “the authority’s”
Member’s explanatory statement
This amendment is consequential on the Minister’s first amendment at page 2, line 21.
Amendments 9 and 10 agreed.
Clause 3: Applications for exemption certificates
Amendments 11 and 12
11: Clause 3, page 2, line 39, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 3(1)(g) currently allows the Secretary of State to use guidance to specify information that a person applying for an exemption certificate must provide. This amendment requires the information to be specified in regulations instead.
12: Clause 3, page 2, line 40, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.
Amendments 11 and 12 agreed.
Clause 4: Further provision about exemption certificates
Amendment 13 not moved.
Amendments 14 to 16
14: Clause 4, page 4, line 21, leave out subsection (8)
Member’s explanatory statement
Clause 4(8) currently allows the Secretary of State to issue guidance setting out the form or manner in which anything required by clause 3 or 4 may or must be done. This amendment removes this power.
15: Clause 4, page 4, line 28, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
The effect of the current definition of “specified information” is to allow the Secretary of State to use guidance to specify information that must be provided to the Secretary of State when a person other than the original holder of the exemption certificate deals in an item. This amendment requires the information to be specified in regulations instead.
16: Clause 4, page 4, line 29, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
Amendments 14 to 16 agreed.
Clause 5: Fresh applications and appeals
Amendments 17 to 21
17: Clause 5, page 4, line 34, after “appeal” insert “to the First-tier Tribunal”
Member’s explanatory statement
This amendment provides that an appeal against the refusal or revocation of an exemption certificate is to be made to the First-tier Tribunal.
18: Clause 5, page 4, line 36, at end insert—
“( ) An appeal under subsection (1)(b) may be on the ground—(a) that the decision was based on an error of fact,(b) that the decision was wrong in law, or(c) that the decision was unreasonable,or on any other grounds that are prescribed by regulations made by the appropriate national authority.( ) On an appeal under subsection (1)(b), the First-tier Tribunal may—(a) confirm the Secretary of State’s decision to refuse or revoke the exemption certificate,(b) require the Secretary of State to issue an exemption certificate, or to cancel the decision to revoke an existing exemption certificate, or(c) remit the decision to refuse or revoke the exemption certificate to the Secretary of State for reconsideration.”Member’s explanatory statement
The subsections inserted by this amendment set out the grounds for an appeal against the refusal or revocation of an exemption certificate, confer power on the appropriate national authority (see the Minister’s amendment of clause 37 at page 22, line 24) to prescribe further grounds in regulations, and set out the actions that the First-tier Tribunal may take on an appeal.
19: Clause 5, page 4, line 37, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
20: Clause 5, page 4, line 37, after “make” insert “further”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 4, line 36.
21: Clause 5, page 4, line 39, leave out subsection (4) and insert—
“(4) The Secretary of State may by regulations make provision requiring an appellant to pay a fee of a prescribed amount.”Member’s explanatory statement
The effect of this amendment is to remove paragraphs (a) to (d) of the existing subsection (4) of clause 5. Those paragraphs are no longer necessary because the Minister’s amendment at page 4, line 36 will enable the matters in question to be dealt with by First-tier Tribunal Rules.
Amendments 17 to 21 agreed.
Clause 6: Pre-1918 portrait miniatures
Amendments 22 not moved.
Clause 7: Pre-1947 items with low ivory content
Amendment 23 not moved.
24: Clause 7, page 5, line 15, leave out paragraph (d)
Member’s explanatory statement
This amendment removes registration as a precondition of allowed sales of de minimis objects containing ivory.
I am very grateful to the Minister for the way in which he responded to my earlier concerns in our previous debate. I found myself almost seduced by his silver tongue. I found myself wondering whether perhaps he was right, but all along there was a niggling doubt in the back of my mind. As I said in my remarks, the scheme which is being adopted globally to deal with ivory poaching is basically the same right around the globe. The interesting thing about that is that there is nowhere else on earth where there is a registration scheme associated with de minimis exemptions. It is also interesting that in the consultation that was held prior to the Bill, there was no mention of registration. It was a matter that came into the frame—if I may put it that way—right at the last minute. That makes me wonder.
My amendment does not change the substantive law, nor does it change the scheme that this Bill is intended to put into effect. If this amendment were to be passed, two things would follow. The first one is that the very real concern of my noble friend Lord Hague—that somehow we would be outside the scope and general thrust of the international efforts to deal with ivory poaching—could not be the case. We would merely be doing what other people are doing. Equally, the noble Baroness, Lady Jones, made the important point that we do not want to be out of synch with other people. Indeed, you could make quite a strong case for saying that, on the basis of the facts, by including my amendment, we would actually be more aligned with other countries around the world rather than less so. I find it odd that we are being told that the right way to tackle this is rather different from the way that the rest of the world does so. It should be a matter for your Lordships to decide whether we want to be a bit different from everybody else or whether we follow the international pattern. Against that background, I would like to test the opinion of the House on this important matter.
24 October 2018
Division on Amendment 24
Amendment 24 disagreed.View Details
Amendment 25 not moved.
Clause 8: Pre-1975 musical instruments
Amendment 26 not moved.
27: After Clause 8, insert the following new Clause—
“Report on the impact of this Act on the hire and sale of musical instruments
At the end of the period of five years beginning with the day on which this Act is passed, the Secretary of State must lay before each House of Parliament a report on the impact of this Act on the hire and sale of musical instruments containing ivory in the United Kingdom.”
I briefly move Amendment 27, which asks for a report on the impact of the Bill—the Act when it receives Royal Assent—on the hire and sale of musical instruments. The amendment calls for such a report at the end of a period of five years beginning with the day on which the Act is passed. However, since tabling my amendment, I note that my noble friend Lady Jones has tabled Amendment 41, which is in many ways a more satisfactory version of my amendment, because it calls for a more wide-ranging report—including the point that I make in my amendment—on an annual basis. I hope that the Minister will look favourably on Amendment 41 and, because of the existence of that amendment, will say nothing further about Amendment 27.
I shall speak to Amendments 41 and 78 in this group. Amendment 41 would require the Secretary of State to prescribe appropriate categories for the purpose of publication and specifically precludes the release of any information that would be unlawful or might lead to the identification of the owner. At this stage, I ask the Minister to go somewhat further than she did in Committee and clarify more specifically what the Government can do, at what intervals and through what media, to give confidence that the Bill is working effectively.
Amendment 78 requires the Secretary of State to publish an annual report covering the implementation and impact of the ivory ban domestically and internationally. This includes the work of the various bodies involved, including the Office for Product Safety and Standards, the Animal and Plant Health Agency and the National Wildlife Crime Unit. We feel that this is very important given the concerns raised in Committee about the resources—or, perhaps more accurately, the lack of resources—available to these organisations, as well as their specific role in the implementation of the Bill.
We also feel that it is important to consider the hire and sale of musical instruments containing ivory, as my noble friend Lady Quin explained. The 20% exemption for musical instruments is designed to allow most instruments to be exempt from the Bill, including pianos and bagpipes. Although we do not support more widely drawn amendments, we must be aware of the impact that the ban will have on this artistic activity.
Importantly, we would also want the report to build on any international reports considering the impact on nations or communities that generate income from ivory. Poachers who kill elephants are usually poor and looking for a way to feed themselves and their family. However, education and development are needed so that communities can be turned to recognise the value of elephant tourism. An elephant is worth 76 times more alive in a savannah than in a market place. The report could augment the view that managed conservation with tourism will offer an alternative sustainable income to elephant communities and wider populations of Africa. Will the Minister go a little further than she was able to go in Committee?
My Lords, I support Amendments 41 and 78, which were debated in Committee and the Labour Front Bench said they would be bringing them back. While I support them, I am interested in what the Minister has to say.
My Lords, the Government fully appreciate the sentiment behind the amendments in this group. Monitoring the implementation and impacts of the ban on the ivory market and other affected sectors is very important.
I turn first to Amendment 41, in the name of the noble Baroness, Lady Jones, on the publication of a report on matters relating to the exemptions to the ban. In Committee, there was widespread agreement in your Lordships’ House about the importance of transparency and providing information to the public. I believe that the Government’s commitment to share publicly information on exemptions, in line with the Data Protection Act, was welcomed. We are committed to publish data on appeals, the number of items registered and the number of exemption certificates issued and revoked each year and to include a breakdown of these numbers into categories such as statues, reliefs, furniture and musical instruments. The noble Baroness’s amendment reflects these commitments, for which I am grateful, and I am happy to repeat them today. I cannot, however, agree that an amendment is needed and hope that the commitments that the Government have made will suffice.
I turn to Amendment 78, again in the name of the noble Baroness, Lady Jones, regarding a report on the impact and implementation of the Bill. I appreciate that the noble Baroness has reflected points raised in Committee in this amendment. I reassure your Lordships’ House that, as a matter of course, the Government will assess the impact and implementation of the ban over time, in particular its enforcement. Much of this information will be available in the public domain and subject to public scrutiny.
It might assist noble Lords if I give a number of related examples of where this kind of information is already provided publicly. Perhaps this will assist the noble Lord, Lord Grantchester, in understanding the types of information that we will be publishing. The regulatory body that we have chosen to help enforce the ivory ban, the Office for Product Safety and Standards, already publishes an annual report which includes its activity over the year for each of the different regulatory areas the body covers. The Animal and Plant Health Authority, which will administer the registration system among other things, submits annual trade data on used permits to the secretariat of the Convention on International Trade in Endangered Species—CITES. This data is available publicly on the CITES database. The National Wildlife Crime Unit, where appropriate, issues press releases on closed cases it has been involved in, often including the penalties issued. These publications will continue, and we will consider how we can provide further information that will complement but not duplicate them. An obligation in the Bill to produce reports would risk duplication and be a considerable and unnecessarily expensive undertaking.
With regard to the Department for International Development, a number of announcements were made at the Illegal Wildlife Trade Conference earlier this month about additional funds being made available from DfID and Defra, including £46.6 million to protect endangered species and a £20 million round of UK Aid Match for wildlife and conservation issues. Any programme that is run by DfID must publish an annual review online demonstrating its results.
With regard to nations generating income from ivory, as referred to in Amendment 78, we believe that the decline in elephant populations deprives some of the poorest countries in the world of their natural resources, which impacts economic growth and sustainable development. The illegal ivory trade is almost uniquely conducted by organised criminal groups and the money from this despicable trade rarely reaches local communities and the people who need it.
At the request of the noble Baroness, Lady Quin, I will not respond directly to her amendment, but I hope that she takes comfort from my words about the types of data that we will be drawing out and the categories of items that we will be able to summarise.
I hope that I have been able to reassure the noble Lord, Lord Grantchester, and the noble Baroness, Lady Jones, and that the noble Baroness, Lady Quin, feels able to withdraw her amendment.
My Lords, I beg leave to withdraw my amendment.
Amendment 27 withdrawn.
28: After Clause 8, insert the following new Clause—
An item that has ivory in it is exempt from the prohibition if it is a musical instrument that has been certified by the Northumbrian Pipers’ Society, or a similar approved organisation, as being a set of, or part of a set of, Northumbrian pipes made before the passing of this Act, and covered by a valid Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) certificate.”
My Lords, I spoke to this amendment earlier. I felt that I was proposing a tightly drawn amendment which would remove any opportunity to create a loophole of the kind that the Government feared. I was disappointed that the Government did not take the opportunity to accept the amendment or say that they would look at it with the view to introducing an amendment later dealing with the points that I raised. Normally, I would be tempted to test the opinion of the House, but I recognise political reality when I see it. Certainly, since the Government, the Opposition Front Bench and the Liberal Democrat Front Bench did not express their support, I beg leave to withdraw the amendment.
Amendment 28 withdrawn.
Clause 9: Acquisitions by qualifying museums
Amendments 29 to 31
29: Clause 9, page 6, line 1, leave out paragraph (a) and insert—
“(a) in the case of a museum in England, the Channel Islands or the Isle of Man, it is shown as being accredited in a list published by or on behalf of Arts Council England;(aa) in the case of a museum in Wales, it is shown as being accredited in a list published by or on behalf of the Welsh Government;(ab) in the case of a museum in Scotland, it is shown as being accredited in a list published by or on behalf of the Scottish Ministers;(ac) in the case of a museum in Northern Ireland, it is shown as being accredited in a list published by or on behalf of the Northern Ireland Museums Council;”Member’s explanatory statement
This main effect of this amendment, which is about how museums are to be identified as “qualifying museums” for the purposes of clause 9, is to replace the reference to Museums Galleries Scotland with a reference to the Scottish Administration. It is also intended to clarify the drafting.
30: Clause 9, page 6, line 10, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
31: Clause 9, page 6, line 11, after “(a)” insert “, (aa), (ab), (ac)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 6, line 1.
Amendments 29 to 31 agreed.
Clause 10: Registration
Amendment 32 not moved.
Amendments 33 and 34
33: Clause 10, page 6, line 37, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 10(1)(f) currently allows the Secretary of State to use guidance to specify information that the owner of an item must provide when applying for registration of the item. This amendment requires the information to be specified in regulations instead.
34: Clause 10, page 6, line 38, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
Amendments 33 and 34 agreed.
Amendments 35 and 36 not moved.
Clause 11: Further provision about registration
37: Clause 11, page 7, line 13, leave out from “section 10” to end of line 15 and insert “remains valid if the ownership of the item passes by inheritance to a member of the family of the registered owner.”
Member’s explanatory statement
This amendment is designed to reduce the administrative arrangements which will follow the enactment of this Bill.
My Lords, I will not detain the House very long on this amendment, which is similar to an amendment I moved in Committee. I was disappointed in the response that I received. This amendment does not touch at all on any of the exemptions or provisions of the Bill; it merely makes the point that if somebody has a certificate, it should remain valid if the ownership of the item passes by inheritance to a member of the family of the registered owner. That seems to me to be sensible, fair and equitable and I cannot understand why anybody would be opposed to it. I beg to move.
My Lords, Amendment 39 is a probing new clause, because I think the issue is already covered in the Explanatory Memorandum. The concern is that if an ivory item or collection of ivory items is not registered, it cannot be sold. If it cannot be sold, it has no value. If somebody dies and a valuable collection of ivories is in their estate and they have left their estate to, say, their children, then the ivories will pass to the children, as I understand it, under the provisions of this Bill—indeed, that is made clear in the Explanatory Memorandum.
My concern is not to do with the Bill and not even really with the Explanatory Memorandum, but with those wonderful, devoted ladies and gentlemen at HMRC. Like many colleagues here, I have had dealings with HMRC over the years and, perfectly reasonably, the tax inspectors’ view is that their job is to maximise the tax revenue. They wish to obtain every last penny they can under the provisions of the taxes Acts.
There is something that I want to avoid—and to make clear in this new clause—when an estate has a valuable collection of ivories, or indeed any ivories at all. Let us say for the sake of argument that there is a collection of ivories of museum quality—netsukes worth £100,000, for example; a substantial amount—and the estate is well above the inheritance tax threshold. When looking at probate, HMRC will come along and say, “You are passing this extremely valuable collection on to your children under your will”. If this collection had been registered, it would have a value. It might be a value that a museum would pay; it might be a value, if it were less than 10% ivory, such that you could sell it on the open market, but it would have a value. But without it being registered, it has no value. This new clause tries to tease out this issue and hopefully get it on the record, and to make it clear to HMRC that an ivory item that is not registered has no value and therefore no value for probate, so the wonderful inspectors at HMRC should keep their sticky fingers off it.
My Lords, my noble friend Lord Cormack’s amendment aims to enable a person who inherits a registered ivory item from a relative also to inherit the title to that registration. Self-registrations for items meeting the de minimis, musical instruments or portrait miniatures exemptions, or for items to be sold to an accredited museum, are in the name of the owner. If a new owner subsequently wishes to deal in that item, or wants to ensure that it is registered as exempt for any other reason, he or she must register it online in their name. A person inheriting a registered ivory item would assume the responsibilities of ownership of that piece, including the decision whether to register it in their name, in line with their specific circumstances. If a person inheriting or taking possession of an ivory item is unsure whether it is registered, this would not affect their rights or responsibilities as the new owner. Because the registration is associated with the individual, it therefore falls to the person inheriting the piece, as the new owner, to register the item if they wish to undertake dealing in it. I repeat: if they wish to undertake dealing in it.
The Government are working closely with interested parties to develop an online self-registration system for ivory items that will be quick and simple to use and meet the needs of all users. I also reassure noble Lords that an offline system will also be made available to cover the points that have been raised in other amendments. Of course—I emphasise this to my noble friend—for items under the rarest and most important items of their type, the exemption certificate remains with the item when it is passed to a subsequent owner. That is the distinction.
I turn to my noble friend Lord Carrington’s amendment concerning ivory items passing through probate. This is an important issue and I can reassure your Lordships that the Bill will not impact on, or cause additional burden to, those involved in such situations. The ivory ban does not affect one’s right to bequeath or inherit any ivory item, regardless of whether it meets an exemption, is registered or is certified. An ivory item may therefore be bequeathed without requiring registration by either the person inheriting the item or the executors of the estate.
The matter of inheritance tax has been clarified in your Lordships House before and I am happy to do so again for the record. Her Majesty’s Revenue and Customs confirms that ivory items will be considered to have nil value on the open market for inheritance tax purposes unless that item has been registered or certified as exempt. Items registered or certified as exempt will be assessed against their market value in the normal way and may therefore be subject to inheritance tax. With this explanation, I hope that my noble friend can withdraw his amendment.
Like the noble Baroness, Lady Quin, I too know when I am beat. I do not think it would serve any purpose to press this amendment. I am mildly comforted by what my noble friend said; maybe we can have conversations on this as the Bill comes into force. I beg leave to withdraw my amendment.
Amendment 37 withdrawn.
38: Clause 11, page 7, line 32, leave out subsection (5)
Member’s explanatory statement
Clause 11(5) currently allows the Secretary of State to issue guidance setting out the form or manner in which anything required by clause 10 or 11 may or must be done. This amendment removes this power.
Amendment 38 agreed.
Amendment 39 not moved.
40: After Clause 11, insert the following new Clause—
The Secretary of State may by regulations produce and publish guidance to enable a person dealing in ivory to verify the exempted status of an item.”Member’s explanatory statement
This amendment would enable the Secretary of State to lay verification guidance before both Houses of Parliament.
My Lords, Amendment 40 concerns verification regulations. As we debated in Committee, it is imperative that the exemption processes introduced in this Bill are robust and proportionate. In Committee, we introduced a probing amendment that would allow the Secretary of State to create a verification system to enable buyers to ensure that they were complying with the law. We felt that this was particularly important, given that the definition of “dealing” in Clause 1 specifically includes buying as well as selling ivory. Even the noble Lord, Lord De Mauley, with whom we on these Benches have found little common ground with regard to this Bill, concurred that it was a most sensible suggestion.
In response, the noble Baroness, Lady Vere, agreed that a potential buyer must be able to verify that it is legal to purchase the item before finalising the sale. She outlined how a buyer wishing to check the legality of buying or hiring an item would be able to confirm that it had been registered or certified as exempt and look it up on the online system via the item’s reference number. This would enable them to compare the photos and description on the system with the object they intended to purchase. This was a welcome commitment from the Government. I was disappointed, however, by the noble Baroness’s insistence that we do not need regulations to underpin such a system.
Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee report raised concerns about the scope of regulation-making powers contained in the Bill, concluding that the delegation of powers was inappropriate in many areas. We agreed with this view and feel strongly that it would be inappropriate for the purpose of establishing a verification system too. The verification process described by the noble Baroness, Lady Vere, must be subject to parliamentary scrutiny and should be set out in regulations. We feel that this is very important, given the legal implications for breaking the prohibition on dealing, as well as issues involving privacy and the protection of personal data. Indeed, it was for this reason that the noble Lord, Lord Gardiner, advised that the Government would be unable to publish photos or descriptions of specific items exempted. We need to be much clearer about the verification processes that would underpin the Bill and the protections that would be afforded to the buyers, particularly when they are making online purchases, when fake sales particulars are all too often a hazard.
Having reflected on the Minister’s earlier response, we also believe that the negative procedure offers an appropriate level of parliamentary scrutiny for the verification of exempt items. Therefore, we hope that noble Lords will support this amendment, which would insert regulations, but to be approved only through the negative procedure. I beg to move.
My Lords, this proposed new clause would provide the Secretary of State with a new delegated power to make regulations and publish guidance to enable a potential buyer of an ivory item to check its exemption status prior to purchase. I reassure the noble Baroness that the Government will ensure that compliance, by both sellers and purchasers of ivory items, is fully facilitated. The Secretary of State will issue non-statutory guidance, which will set out the detail of each exemption and the requirements for self-registration or certification of exempted items. The guidance will also contain clear advice, for both buyers and sellers, on compliance, including the process by which a potential buyer will be able to check a registration or certification before purchasing an item. I also make the point that verification is in the Bill. We will provide administrative guidance to assist both the buyer and the seller.
I note that the amendment tabled by the noble Baroness would create an additional delegated power for the Secretary of State, by allowing him to specify how many items should be verified. Furthermore, to lay regulations to specify this would be a duplication of the relevant provisions already in the Bill.
Before I set out for your Lordships precisely how the registration system will work, which is important, and thus the measures in place to enable verification, I also note that the Delegated Powers and Regulatory Reform Committee of this House has considered the Bill in detail and made a number of recommendations to reduce the number of delegated powers, which, as we heard on earlier amendments, the Government have addressed.
Ultimately, it will always be in the seller’s interest to ensure that the exemption certificate or registration document is available at the point of sale. It would be appropriate for an antique dealer or auction house to display the certificate or registration details alongside the item or show it to customers at the point of sale. For online sales, we would similarly anticipate that a seller would show proof that the item has been registered or an exemption certificate issued.
We are currently working on the design and build of a new online system to enable owners of exempt items to register them prior to sale or hire. A potential buyer wishing to check the registration of an item will be able to look up that item on the online system, using the unique registration number provided on the seller’s registration document. The buyer will be able to view the information concerning that item held on the database to satisfy themselves that it indeed relates to the item in question. This will allow buyers the comfort that the seller has complied with the process and to verify the registration document.
For items with an exemption certificate under Clause 2 of the Bill—that is, the rarest and most important items of their type—we would in practice expect the seller to make the exemption certificate available to the potential buyer. Similarly, the potential buyer will also be able to consult the online database using the unique identification number on that exemption certificate.
That is why we do not need a power in the Bill to provide the means for buyers to verify that they can legally buy a certified or registered ivory item: as I have explained, it is our intention that this will be achieved through the functionality of the online registration system. This provides a clear means for the buyer to verify the legitimacy of their intended purchase. Furthermore, the Government will publish non-statutory guidance, which will set out exactly how sellers should provide buyers with the assurance that they are entitled to sell an item and that the transaction will therefore be lawful.
Before the Bill is commenced, we will run an awareness-raising campaign to ensure that relevant stakeholders and members of the public are fully aware of the new legislation and associated guidance. As such, we believe it would be unnecessary to include additional powers in the Bill to enable a potential buyer of an ivory item to check on the exemption status of an ivory item. As I have explained, this is precisely why perfecting the online registration system is so important and why work is under way on that.
I believe that the Government have covered the points that the noble Baroness seeks to address, given the explanation and a bit more detail. As the online system is developed, I am happy to ensure, for any noble Lords interested in these matters, a continuum of assurance that this work is well in hand. On that basis, I say to the noble Baroness that these points are covered. I sincerely hope she feels able to withdraw her amendment, because the Government have covered this point.
My Lords, I am grateful to the Minister for that response but I am disappointed by what he had to say. I had hoped that he would have reflected a little more on the debate we had in Committee on these issues. He acknowledged that the Delegated Powers Committee has already been critical of the amount of delegation included in the Bill. He went on to talk about producing administrative guidance or non-statutory guidance, which is a continuation of that non-specific process. He then said that the Government were working on the design of the registration scheme. I understand that it may not currently be fully functioning, but that is all the more reason we need to see the detail and need regulations that spell it out.
I am sorry that the Minister was not able to meet us further on this. There are big issues around implications for privacy and data protection. There is a legal underpinning: if you break this law, sanctions will be taken against you. It is not a frivolous issue; it is important. It is not simply about buying and selling but about complying with the law and not complying with the law. I am therefore sorry to say that, unless the Minister is able to tell us that he is prepared to come back to this at Third Reading, we would like to test the opinion of the House.
24 October 2018
Division on Amendment 40
Amendment 40 disagreed.View Details
Amendment 41 not moved.
Clause 12: Offence of breaching the prohibition or causing or facilitating a breach
42: Clause 12, page 8, line 7, leave out subsection (2) and insert—
“(2) It is a defence for a person charged with an offence under this section to prove that they did not know or suspect, and could not reasonably be expected to know or suspect, that the item is ivory, is made of ivory or (as the case may be) has ivory in it.”Member’s explanatory statement
This amendment permits a defence of ignorance, with the onus on a person to prove that they did not and could not have been expected to know or suspect that an item contained ivory, to help tackle the problem of deliberately mislabelling ivory items as other substances.
My Lords, Amendment 42, which deals with the defence of ignorance in Clause 12, would remove the provision in the Bill stipulating that an offence has been committed only if the person knew or ought to have known or suspected that an item contained ivory. Under our amendment, it would be a defence if a person proved that they did not know or suspect, or could not have known or suspected, that an item contained ivory. That might sound as though there is not much difference, but there is an important difference in the burden of proof, and that is something that we seek to strengthen.
We considered this issue in Committee but failed to have a meeting of minds on the wording of this clause. At the time, the Minister, the noble Lord, Lord Gardiner, advised that the provision had been included to help tackle the issue of illegal ivory in items being deliberately mislabelled as another substance, and to protect those who fall victim to such ploys who genuinely did not know that an item they were dealing with contained ivory. Of course, we know that mislabelling is common. Numerous studies have found that new elephant ivory offered for sale is often mislabelled as ivory from other species or another material altogether, such as bovine bone. In some instances, this may well have been due to genuine unawareness, although deliberate mislabelling is a well-known tactic used in the illegal ivory trade to evade detection and facilitate illegal sales. In those circumstances, a seller might provide other information to indicate more discreetly to buyers that the item is indeed ivory, such as close-up photographs that depict cross-hatching, a tell-tale sign of ivory, or code words used in the trade to surreptitiously indicate that an item is made of or contains ivory.
We must have a form of wording that differentiates between those who are playing the system and know perfectly well what they are trading and others who have been genuinely duped. If we stick with the original wording, it would too easy to claim that you were unaware of what you were buying and would make enforcement a real challenge for the agencies, which would have to prove that you knew it was ivory.
Our amendment allows for a defence of ignorance but introduces a higher evidential threshold than in the clause as currently drafted. It also brings it in line with the provision in Clause 12(3), which allows for a defence if an individual can demonstrate that they took all reasonable precautions to comply with the law. I am therefore moving this amendment and I hope noble Lords will see the sense of our arguments. I beg to move.
My Lords, I thank the noble Baroness, Lady Jones of Whitchurch, for her amendment to Clause 12(2). The purpose of the current subsection (2) is to outline the criteria required to demonstrate that an offence has been committed. Subsection (3) provides a person accused of an offence with the defence that they took reasonable steps to avoid the commission of that offence. The purpose of subsections (2) and (3) together is to provide a balanced and proportionate framework with regard to prosecutions under the Bill, and to tackle the problem of illegal ivory items being deliberately mislabelled, while also providing a defence that allows a person to prove that they took the reasonable steps needed to ensure that the item was not elephant ivory.
Amendment 42 is explained by the noble Baroness, Lady Jones, in the Member’s explanatory statement published alongside the amendment as permitting the “defence of ignorance”. As noble Lords will know, there is no defence of ignorance in UK law. It is not permissible for someone accused of a crime, be it large or small, simply to claim that they did not know that it was illegal to do something. If we were to accept the amendment, we would also be suggesting that an individual would be able to prove a negative—to prove that they did not know something. That would be extremely problematic.
Furthermore, the amendment as drafted does not in fact reflect a “defence of ignorance” as referred to in the Member’s explanatory statement to the amendment. To explain a little, the amendment would remove the criteria in Clause 12(2), which outlines the requirements that must be satisfied for an offence to occur. Subsection (2) provides legal certainty on what constitutes an offence. It states that an offence is committed in relation to an item only, first, if a person knows or suspects or, secondly, if the person should have known or suspected that the item involved in the commission of an offence is elephant ivory or has elephant ivory in it. Subsection (3) essentially achieves the desired effect of the noble Baroness’s amendment. It states:
“It is a defence for a person … to prove that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence”.
In fact, subsection (3) goes further than the amendment, as it explicitly states what a person must prove to rely on that defence. Furthermore, in this case the individual will be seeking to prove a positive action. It is a far easier prospect to prove that due diligence has been undertaken than to prove a negative—that they simply did not know.
Let us have a quick look at how the Bill would operate if the noble Baroness’s amendment were accepted. Mrs Smith goes to a car-boot sale and sees a lovely box, which is very similar to her grandmother’s. She is not a very well-off lady, she owns absolutely no antiques and she pushes the boat out on that day and pays a tenner for this box as a treat. The box has a tiny, almost imperceptible, amount of ivory in it. Is Mrs Smith a criminal? It is not our intention that she should be. Removing subsection (2) makes the law far less clear because in that subsection is the outline of the requirements that must be met for an offence to occur. In the current draft of subsection (2), the elements of an offence are clear. To remove the subsection, as suggested in the amendment, would upset the firm legal foundation of the Bill. Removing the criteria for the offence in subsection (2) would cause significant uncertainty and risks overwhelming the enforcement system with Mrs Smiths, while the real criminals are left free to continue to break the law by dealing in ivory on much larger scale.
The Bill seeks to be balanced and proportionate. Removing subsection (2) would achieve neither aim. The police, enforcement bodies and the courts can use their professional discretion when considering the approach to use, based on a number of factors—for example, whether that person knew about ivory trading, whether it is a repeat offence or whether there is any evidence of deliberate mislabelling. Discretion is very welcome, but it must be based on a firm foundation of effective law. The amendment of the noble Baroness runs the risk of criminalising those who are not criminals at all.
Clause 12(2) and (3) are very carefully phrased. They protect individuals where there is absolutely no intent to breach the ban, and where the person could not be reasonably expected to know that the item was ivory or even contained ivory. It is not our intention to criminalise these people; that would be disproportionate and counterproductive. I have listened very carefully to the arguments put forward by the noble Baroness, Lady Jones. It is the Government’s intention in subsections (2) and (3) to be clear and proportionate, and I believe that is the case. Given this explanation, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, the Minister and I agree that it was never our intention to criminalise Mrs Smith at the car-boot sale, and that is part of the argument that I had intended to set out. We were trying to criminalise those people who were playing the game and deliberately trying to mislead people. I am pleased that the Minister said that there was no defence of ignorance in UK law. Our worry was that that was exactly how her wording came across, because the original amendment says that an offence is being committed only if the person knew or ought to have known or suspected than the item contained ivory; that implied a defence of ignorance.
However, I hear what the Minister says: we have to look at subsections (2) and (3) together, and, perhaps because of the late hour, I will not choose to pursue it on this occasion. I therefore beg leave to withdraw the amendment.
Amendment 42 withdrawn.
Consideration on Report adjourned until not before 9.10 pm.