Committee (1st Day)
Relevant document: 31st Report from the Delegated Powers Committee
Clause 1: Prohibition on dealing in ivory
1: Clause 1, page 1, line 5, at end insert “unless it has been certified that the object containing the ivory was created before 1918”
Member’s explanatory statement
This amendment is designed to ensure that steps taken to enforce the Bill are directed primarily at those who poach, use and trade in poached ivory.
My Lords, this Bill, which received its second reading in July, is far-reaching and has real implications for many people whom this House does not always consider. Before I move the amendment and explain why I think it is important, perhaps I might strike a note that I am sure will receive the approbation of everyone in the House and also those who have now quitted it—namely, that we wish to send our warmest good wishes to my noble friend Lord Carrington of Fulham, who is in hospital at the moment. We hope to see him back in full fighting form by the time that this Bill reaches Report.
I thought it would be sensible to table, at the very beginning of this Bill, an amendment that enables us to discuss the fundamental, controversial point. I do not think that anyone in your Lordships’ House, present or absent, does not wholly subscribe to the aims of the Bill as they have been enunciated over the past year or more. We all deplore the poaching of elephants and we all wish to see those noble creatures, both in Africa and in Asia, preserved. We wish to see them multiply and we should have absolutely no compunction about treating those who poach these animals with the utmost severity. Equally, we should treat with the utmost severity those who work the tusks of the animals and those who profit from what has been worked. That, I think, is common ground across the House.
But one does not save an elephant from being poached by effectively forbidding people to own and treat as proper property ivory items that are one, two, three, four or five centuries old. It is true that the Bill has certain limited exemptions: items of supreme museum quality and those which contain, in the case of furniture and so on, less than 10% ivory, while in the case of musical instruments, less than 20% ivory, as well as miniatures, as long as they are less, I believe, than 320 centimetres in size. The very recognition that there should be exemptions creates a situation which is arbitrary in the extreme. The Government accept these exemptions and they therefore acknowledge that it is entirely proper for antique objects of either great importance or which have a small percentage of ivory to be saved. But where does the ivory come from? It is ivory that has come from elephants in the past and the recognition of this makes a nonsense of the proposition that all other antique ivory should, in effect, not be allowed to be kept or traded or sold. What I am saying in the amendment is that we should look at this carefully before proceeding.
I shall give your Lordships one or two examples. Only the other day, when I tabled my amendment, I had a letter from a body of which I had not previously heard: Chess Collectors International. Many people in our country enjoy playing chess, and until the beginning of the 20th century a very large number of chess pieces were made of ivory. Perhaps the most famous of all in this country are those made of walrus ivory, the Lewis chessmen in the British Museum. But there are many others, many of them made from elephant ivory. Often these chess collectors have purchased these sets not only because they wish to play chess with them but because they regard them as some of the finest small sculptures in existence and objects of beauty and importance.
It is not difficult for somebody who has a collecting instinct to decide that he or she will try to collect various sets of whatever they are interested in, and so it is with chess collectors. It is not difficult, therefore, to have a collection worth many thousands of pounds. As I explained to the Secretary of State when he kindly telephoned me on Saturday morning, there may be many people in his constituency and in other constituencies around the country who have a collection of that sort.
We are in effect, by saying that after this Bill comes into force they cannot dispose of those sets for monetary gain, sequestering private assets. That ought to be inimical to any true democrat—the confiscation by legislation of legitimately acquired and entirely legal private property. As my correspondent points out in his notes to me, over a lifetime of collecting the average collector can have a number of sets worth £20,000 or £30,000, often acquired with the knowledge that there is a little nest egg if he or she hits hard times or something to leave to the children. There is something to cover the costs when that person goes into care. If we, at a stroke, take away the value of that, we are confiscating private property because we are making it worthless.
The immediate consequence, even of the Bill being before your Lordships’ House, is that we have already apparently lost a royal ivory set from early to mid- 19th-century design by Edward Bird of the Royal Academy and carved in London. That has gone to Switzerland. At risk is an 1860 set known as the Lord Lyttelton set, named after George Lyttelton, the fourth Baron Lyttelton, Under-Secretary of State for War and the Colonies at the time of Sir Robert Peel. It is an object not necessarily of museum quality in itself, but of real historical interest and importance. There are many others as well. I merely mention chess sets as an example, because there is no point, in this House where there so many experts, in merely mouthing platitudes and generalities. One wants to give specific examples.
Another was brought to my attention by a lady who is a great expert on netsuke, those little Japanese toggles. Sometimes they have the most extraordinary tiny carvings of great beauty and importance. They are not all ivory; some are wooden and some are stone, but there are ivory ones. As the lady who wrote to me said, it is possible over a lifetime to have amassed a collection worth many thousands of pounds. From the moment this Bill comes into force as an Act of Parliament, unless it is amended along the lines that I am suggesting, that property will be worthless.
Later, we will debate exceptions for things of museum quality, but all I will say at this stage is that a thing does not have to be of museum quality to be interesting, beautiful or historically important. Also, what is of museum quality in Lincoln, where I have the honour of living, is not necessarily of museum quality in London. Again, it is arbitrary. We have not addressed this issue with the detailed attention it deserves. The Bill smacks of gesture politics. If we forbid the sale of virtually all ivory objects, we are doing something and are seen to be doing something, but this is a question not of doing something, but of doing the right thing.
The noble Baroness, Lady Quin, will address an amendment later in our deliberations on a specific exemption that causes her concern. I am trying to point out that there are many such examples. In the amendment, I set a cut-off date of 1918. Anything certified as having been made before 1918 should be exempt because we will enter a bureaucratic quagmire if we do not do something such as this. Ivory will have to be certified or it will be got rid of. What about those of you with grandmothers’ ivory-handled fish knives, hairbrushes or perhaps—my favourite example—like a friend of mine, who had a large collection of those little ivory tokens that were used to gain admission to the race track and London theatres in the 18th century? These are not objects of great beauty or great intrinsic worth, but they are very important to the historic fabric of our country. It seems important that we address this.
I want to use an analogy. I suspect we are all as anxious that the rainforests should be preserved as we are that elephants should be preserved, but do we seriously think it would be sensible to mount a campaign or introduce a Bill to forbid the sale of 18th-century mahogany furniture? One has only to state the proposition to illustrate its absurdity. It is important that we address this basic fact at this stage of the Bill. We are talking about the legitimate rights of ordinary, decent people to realise their assets if they need or wish to do so. As so many people will be caught up unwittingly in the tentacles of bureaucracy which it will be necessary to establish after the Bill becomes law, it would be in the good interests of all if we said that what was made before 1918 is not our concern because it will save no elephants and punish no poachers.
Of course, those who deal in ivory, such as auction houses and dealers, should have to pass a strict certification process. For those who transgress—and some will, just as some people fake paintings by great artists—the full weight of the law should come upon them. I submit to your Lordships’ House that this is a sensible way to proceed. It does not in any way demolish the Government’s good intentions in respect of elephants, but passing the amendment—or something similar to it—will produce a Bill that conforms far more to the principles of common sense. I beg to move.
My Lords, I echo the good wishes to the noble Lord, Lord Carrington, that the noble Lord, Lord Cormack, expressed, and of course we wish him a speedy recovery.
I have the greatest respect for the noble Lord, Lord Cormack, and I have listened very carefully to his arguments, but he will not be surprised to hear that, on this amendment, we really cannot support the position that he has put forward. I think that, on this issue, he has his priorities wrong because this is a debate about where our energies and our loyalties should lie. I think that the whole emphasis, the reason that we had the consultation and have this Bill before us today is that it was felt that the previous legislation was not working and therefore more stringent steps needed to be taken to stop the trade as concerns elephants.
I have listened carefully to what the noble Lord is saying, but I do not see that he is doing anything to help stop that trade. If anything, he is making the situation worse.
Can the noble Baroness give one single piece of evidence where the sale of a genuine piece of antique ivory has created the problems to which she alludes?
The noble Lord will know that that is not the issue. The issue has always been that the market is flooded with some legitimate pieces and some illegitimate pieces, and the market has not been able to distinguish between the two. This is why we have to restrict the sale of goods more stringently than we have done. That is the issue. If we introduced his date of 1918 rather than 1947, we would be back to square 1 because everyone would suddenly reclassify their ivory as being pre-1918. We would be in the same ball game of trying to distinguish between what was legitimate and what was illegitimate. The problem is of being able to date what comes on to the market effectively. The legislation as it stands has had a problem with that, which is why we are taking these further steps, so we are having a debate at cross purposes. I am trying to do something that protects elephants. The noble Lord is trying to protect inanimate objects. I think that, at the end of the day, the elephants win that argument. They are a higher priority. That was the view of the vast majority of people who responded to the consultation. I will not rehearse all those arguments; we argued them through in the Second Reading. He will know that there was a huge response to the Government’s consultation, and the vast majority of people supported tighter restrictions because they could see that, without those, elephants are being hunted down and massacred to extinction. Nothing that he is saying today is going to stop that.
I have the figures here. Of the people who responded to the consultation exercise—and incidentally, 35,000 were identical emails—99% were from three organisations dedicated to the preserving of elephants. We all agree with the elephants’ being preserved, but you do not need to ban the sale of genuine antique items to preserve genuine living elephants.
Can the noble Lord explain how to tell pre-1918 ivory from more modern ivory? Is there a kind of test that experts can do? Is it reasonably sound, or is it a matter of opinion?
I hesitate to respond when the noble Baroness has the floor, but, as the question was directed at me, yes, there are people who are expert in this and who are able to assess ivory very carefully. I am not saying that the test is infallible, because nothing is infallible. I referred to faked pictures when I was moving this amendment. It is, however, a very good test. It would pass “Fake or Fortune?” pretty comprehensively every Sunday evening.
My Lords, that is not the issue. The problem is that we simply do not have the resources to go around carbon-dating every single piece of ivory on the market. That is why we have to find some way of restricting it. If not, people will put their own classification on the ivory; sometimes it will be correct and sometimes it will be incorrect. We do not have the wherewithal or the facilities to manage that effectively. That is why the Bill is before us today: it gives us a structure for managing what ivory is coming on to the market and a more authenticated version of whether it is legitimate.
I take issue also with what the noble Lord said about the consultation. Around the Chamber, there are noble Lords who represent a number of the elephant charities whose members care passionately about the issue, but if we were to ask anybody in the street what they thought the priorities were, I think that the vast majority would say that they cared more about the elephants than the issues that he is raising today. That is the reality; the noble Lord has a very niche view of it, but I think that most people care more about seeing elephants and other animals living at peace in the wild.
The issue is not whether people own ivory. The noble Lord put great emphasis on sequestration and confiscation, but that is not what this Bill is about; it is about buying and selling of ivory. People can own all the lovely pieces that he was talking about; they can pass it down through the family, but it is only when they want to buy or sell it that it becomes an issue. The Bill does not stop people valuing, loving and caring for family heirlooms. It is only the commercial market that is under question.
There are very good reasons for our trying to put in the Bill tightly worded exemptions—we shall talk about those shortly. The restrictions have to be extremely tight and the rarest and most precious items have to be recognised and distinguished. Not all items produced prior to 1918 are beautiful or valuable. There would be that cut-off date, but to allow all ivory unrestricted circulation in an unrestricted market would skew the market and undermine the wider intent of the Bill. The very existence of such markets would encourage fraud in a similar way to that which made the 1947 date unworkable. With a free flow of pre-1918 ivory, I think that everybody would start to reclassify ivory and the whole date would become blurred.
I am summarising—I am sure that Minister will do it better than me. We had a huge debate on this at Second Reading. I did not persuade the noble Lord; he did not persuade me, and I think that we will carry on the debate as the Committee proceeds. At the end of the day, it is about priorities. As far as I am concerned, the priority is the elephants living in the wild. On this issue, the noble Lord has his priorities wrong.
My Lords, due to illness in the family, my noble friend Lady Bakewell is not present for this part of Committee, although I believe that she will be along later. In her absence, I want to intervene briefly in support of the remarks of the noble Baroness, Lady Jones.
The noble Lord, Lord Cormack, has started off Committee in fine, eloquent style, but the phrase “coach and horses” springs to mind as a result of what he had to say. The noble Baroness is absolutely right: the kind of amendment that the noble Lord is putting forward would serve only to introduce further ambiguity and uncertainty into a Bill which has been designed to make sure that we do not have the ambiguities and uncertainties of the current legislation. The noble Lord, Lord Berkeley, had it absolutely right: the difficulties in identifying the difference between pre-1947 and pre-1918 ivory are rife. John Betjeman disapproved strongly of fish-knives—
I draw the noble Lord’s attention to Clause 7, for example, which already contemplates differentiating by date. The Government are obviously aware of a way in which this can be done.
My Lords, I am sure the Minister will deal with that issue as far as this amendment is concerned, but to introduce further differentiation into the Bill is extremely unhelpful, particularly in the light of its intentions and the fact that the CITES convention will take place later next month. I do not think that that would be a particularly good symbol.
I am the proud owner of a set of fish knives—I do not believe that John Betjeman would have approved of them. I am firmly in the category that the noble Lord, Lord, Cormack, has identified as being caught by this provision. I am very relaxed about it. I do not believe one should be able to trade, deal or sell that kind of commodity. It is the sort of thing you pass on to your descendants. I very much hope this provision will remain part of the Bill.
My Lords, I join all noble Lords in saying that I very much look forward to the early return of my noble friend Lord Carrington of Fulham and, indeed, the noble Baroness, Lady Bakewell of Hardington Mandeville, for later stages.
My noble friend’s amendments intend to allow pre-1918 ivory objects to be bought, sold and hired within the United Kingdom, regardless of whether they meet one of the exemptions. Indeed, my noble friend—and this has been raised already—used words such as “confiscation” and “loss of ownership”. These measures precisely do not affect the right to own, gift, inherit or bequeath ivory. They are precisely not for that purpose.
As this is the beginning of Committee stage, I reiterate the overriding purpose of this Bill. Its intention—and the noble Lord, Lord Clement-Jones, also made this clear—is to introduce one of the strongest ivory bans in the world, with narrow and limited exemptions, to curtail the demand for ivory that currently threatens the elephant with extinction. As your Lordships know—a number of noble Lords have referred in different ways to the public consultation—there is overwhelming public support for this ban. I say to my noble friend in particular that we have worked extensively with conservation NGOs, the arts and antiques sector, and musician and museum sectors to help shape this Bill, and we believe it is a proportionate response.
The exemptions outlined in the Bill have been included to allow limited dealings in ivory to continue where they are unlikely to contribute to the poaching of elephants. To allow all pre-1918 ivory items to be bought, sold and hired, regardless of whether they meet one of the exemptions, would significantly undermine the aim of the Bill and the carefully balanced package of exemptions. My noble friend is, of course, conversant with Clause 2, which we will address in more detail later. We have specifically created an exemption so that pre-1918 ivory items that are of outstandingly high artistic, cultural or historical value, and which are the rarest and most important examples of their type, can continue to be traded.
I suggest to my noble friend that his other amendment concerns the offences of buying or hiring ivory as the owner within the UK only. Subsection (4)(b) concerns selling and hiring ivory as the lender both in and outside of the United Kingdom. My noble friend and my noble friend Lord De Mauley have raised a number of issues about the antiques sector. A 2016 report by TRAFFIC, the wildlife monitoring network, on the UK’s domestic ivory trade, showed that consumers of UK antique ivory are increasingly from Asia, particularly China, Japan and Hong Kong. This constitutes a change since the last UK ivory market report in 2004, which found that most buyers were from Europe and the United States. This worrying shift demonstrates that the UK antique ivory market is increasingly connected to the Far East, where the demand for ivory is highest, further fuelling the demand for ivory, and its social acceptability.
I also want to refer to a point in the discussion between the noble Baroness, Lady Jones of Whitchurch, and my noble friend Lord Cormack. As I mentioned at Second Reading, the 2010 report from the United Nations Office on Drugs and Crime concluded:
“The trade in illicit ivory is only lucrative because there is a parallel licit supply”.
This is precisely why we are having to introduce a ban, with only tightly drawn exemptions that are unlikely to continue to fuel the illegal trade and poaching of elephants. To allow all pre-1918 ivory items to be traded would further perpetuate the demand for ivory and undermine the effectiveness of the ban. I agree with what the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Clement-Jones, said: we have got to bear down on the situation in which 20,000 elephants a year are being slaughtered. We saw only last week reports from Botswana of this slaughter continuing, and the status quo at the moment is simply not acceptable. This country has to lead. We have a responsibility to lead. We are one of the world’s largest exporters of ivory and we must act. So, for the reasons I have given, I am not able to support my noble friend’s amendment and I respectfully ask him to withdraw it.
I had hoped we might have a rather longer debate on this, but of course I listened very carefully to what my noble friend the Minister said and I obviously have no intention of dividing the House today. I believe very much in the unwritten convention in your Lordships’ House that it is better to have divisions on Report than in Committee. However, I shall certainly be framing amendments for Report because I have not been convinced by anything that my noble friend or the noble Baroness, Lady Jones, have said that we are assisting the elephants by forbidding the sale of genuinely antique ivory items. I just do not accept that, and although I accept that there have been consultations with the antique trade, with which I have no pecuniary connection and no interest to declare—I have bought the odd thing in an antique shop, although not ivory—I know that those who have been part of these negotiations have not been entirely convinced that their point of view has been really seriously taken on board.
I think that my noble friend must also realise that we are one country. Quite shortly, much to my regret, we will not be part of a European group of countries, and what will happen, as I have already quoted from the note from the chess collecting chairman, is that things will be sent abroad: they are going abroad quite quickly now. I think it is a pity that we are taking this real sledgehammer to this; nevertheless, there is no point in prolonging discussion now and I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendment 2 not moved.
3: Clause 1, page 1, line 23, at end insert—
“( ) For the avoidance of doubt, nothing in this section shall be deemed as applying to bona fide insurance or re-insurance transactions involving UK-licensed insurers.”Member’s explanatory statement
This is a technical amendment designed to address various insurance and re-insurance problems.
My Lords, I declare my interests as set out in the register of the House, in particular as a director or trustee of several museums and in respect of the insurance world.
This is a technical amendment to do with some insurance issues, so I hope to gallop through it, as I am sure not many of your Lordships would be that interested. I should like to add my own thoughts to the messages to the noble Lord, Lord Carrington, because I was going to start by citing something that he said in his Second Reading speech. He quoted a figure, which I have also seen, of there being somewhere between 2 million and 3 million objects that have an ivory content in the UK in personal collections and museum collections. He said that he felt that was an underestimate, and I agree with him that it probably is an underestimate. The UK is a heavy buyer of insurance. I can say with confidence that the majority of those objects are the subject of insurance, so I am talking about a large number of objects all round.
As I looked at the Bill, there were three areas where I felt there could be problems for the way in which the insurance world works today. The first was in simply paying a claim. I am sure that many of your Lordships have not made a claim and so may not realise this, but the point is that, when paying a claim, the insurer will pay out a sum of money, but the title of the object insured will transfer to the insurer. There would probably also be another agreement, a release agreement, between the insured and the insurer. Therefore, there is a tremendous amount of consideration moving and, certainly, the title of the object moving. That knowledge was with me as I read Clause 1(3), as I was very worried that the paying of the claim may be problematic under the way the Bill is currently drafted. For museums and private individuals, I thought that was regrettable.
Secondly, another thing that goes across to the successful claimant is a right of repurchase. Certainly all of the specialist insurance markets grant this right and I think all markets now in the UK grant it. This is a right whereby, if an object is stolen and comes back—quite a lot of stuff does come back, particularly the more valuable stuff, because if there are photographs of it, it is difficult for people to dispose of it—people have the opportunity to repurchase the object at the lower of the market value or the amount of money that was paid out in the insurance claim. For private individuals, that is often very attractive because many people are underinsured, so maybe they can buy something back that is worth more at a lower price. Certainly, for many private individuals, it is attractive because the sorts of things that are stolen are often things with great sentimental value to them. This is a very valuable right for private insurance. For the museum-insured area, which I am deeply involved with, it is important because often what is stolen is the key part of one or other of their collections, and it is very difficult to source replacement parts. I feel that this repurchase right is very difficult under Clause 1(3).
A third problem, which is much more technical, is to do with the way that insurance companies and Lloyd’s syndicates set themselves up, and that is that they move around the salvage rights within themselves. Naturally, this happens in a series of transactions that take place—most famously in the Lloyd’s syndicates, where there is a fresh syndicate every year—and so they move around these rights of repurchase further down. A Lloyd’s syndicate will need to be able to trade with a successor syndicate in order to preserve this right of repurchase. Of course, there are many latent rights of repurchase out there at the moment, which will all be covered, I assume, by this Bill. So this is not about fresh thefts but about stuff that comes back.
Those three issues were circulating in my mind, and I feel that there is a difficulty. I do not think it is the intention of the Bill to stop people from being able to rebuy their own stuff following an insurance loss. That can have nothing to do with the admirable intentions of this Bill, so I drafted a probing amendment, merely to just raise the debate, but not to settle on the precise language of how we deal with this problem that I have identified. I have limited it to providing some sort of route for just the 200 or so professional insurers in the UK. These are carriers who are all regulated by the FCA and who, I can assure your Lordships, if they saw any naughtiness, would be out with the fines book straightaway. I beg to move.
My Lords, the noble Earl’s amendment would insert a declaratory statement into the Bill confirming that prohibitions in the Bill would not apply to insurance and reinsurance transactions. I am very grateful to him for our helpful conversation over the weekend, and I confirm that it is indeed the Government’s intention that insurance and reinsurance activities will be able to continue as usual.
As the noble Earl has pointed out, this sector is very important with regard to items containing ivory. We are mindful of the types of transactions that may occur, and indeed we are further investigating other types of transactions and the associated transfers of ownership and the considerations paid and received in the ordinary course of these transactions. We are therefore considering ways of making it clear that financial transactions associated with the insurance and reinsurance of ivory items are not prohibited by the Bill, and we look forward to working with the noble Earl and other noble Lords to ensure that that is the case.
I hope that, in the light of what I have said the noble Earl feels able to withdraw his amendment.
I am very grateful to the Minister, with whom I had a number of amusing conversations over the weekend that involved lawn-mowing as well. I think this is a very constructive approach, and I hope we will be able to deal with the matters quickly when we get to meet. I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
4: Clause 1, page 1, line 23, at end insert—
“( ) Except in regard to sections 8 and 9, the exemptions referred to in subsection (6) do not apply in circumstances where the dealing in question has taken place online.” Member’s explanatory statement
This amendment would prevent the sale of otherwise exempted items comprising or containing ivory from taking place online. This, alongside other measures in the Bill, would help to prevent illegal trade of ivory. The online ban would not apply to the items exempted under sections 8 and 9.
My Lords, there is ample evidence that illegal ivory trading frequently takes place online. The arguments against committing online trading have been rehearsed many times: the difficulty of policing online transactions; descriptions of ivory being disguised to avoid search-term filters; and the near impossibility of checking every parcel dispatched from the UK.
Surely all online dealing in ivory should be banned. Allowing only physical sales, combined with the exemption certificates and registration process, would considerably reduce illegal trade and make the enforcement authorities’ job far easier. A recent study published earlier this year by the University of Kent illustrates the problem. It found that, in fact, barely any ivory or other illegal wildlife products are being sold via the so-called dark net, where there is a flourishing criminal market in drugs and firearms. Instead, the researchers found that ivory is being sold openly on conventional auction sites, including eBay. Traders have exploited the previous complex rules, which were meant to restrict the trade in Britain to pre-1947 antiques but can act as a cover for the sale of items fashioned from poached elephant tusks.
Despite perfecting a prototype software scheme that can pinpoint potentially illegal ivory with 93% accuracy, the University of Kent team has been told by law enforcement agencies and wildlife protection groups that they cannot afford to fund its deployment on the front line. I very much hope the Minister will be able to look at that allegation by the University of Kent and give a response. Dr David Roberts, a conservation scientist at the University of Kent and co-author of the study into illegally traded wildlife, has been quoted as saying:
“The surface web is being used by criminals because they have found they can trade there for the most part with impunity. Unlike those selling drugs or guns, they don’t feel they have to move to the darknet. What is frustrating is that tackling this online trade does not seem to be priority. It falls between boots-on-the-ground enforcement against poaching in Africa and reduction of demand in south east Asia. We have had enforcement agencies and campaign groups say they would like to have our software as an enforcement tool but they don’t have the funding to progress it further”.
The fact is that the illegal wildlife trade is a rapidly evolving environmental crime that is expanding through e-commerce. Because of the nature of the internet, the detection and enforcement of online illegal wildlife trading has proven to be difficult and time-consuming, often based on manual searches through the use of keywords. This is aggravated by the fact that, as a result of scrutiny, traders in elephant ivory now use code words to disguise the trade, thus adding an additional level of complexity. Rather than blatantly advertising items as “elephant ivory”, online traders use alternative key words recognised by buyers, at least some of whom are likely to know that they may be purchasing illicit items.
In his letter after Second Reading, the Minister said—I will quote extensively:
“Several Noble Lords have called for a total ban on all online ivory deals, I understand the concerns that differentiating legitimate and illegitimate sales online can often be difficult, but we believe it would be disproportionate to ban online sales, given that existing regulations on other products such as alcohol and medication, which do pose a threat to human health do not have their online sale banned. The Bill has been drafted from the outset with both online and physical sales in mind. The Bill makes it clear that it will be an offence to cause or to facilitate a sale of ivory that either does not meet an exemption, or has not been properly registered or certified. This will apply equally to any website or online forum which hosts or facilitates an illegal sale. It will be the responsibility of any online forum to ensure that ivory items sold on its site are legitimate in exactly the same way we will expect of a high street shop or auction house”.
Those are very reasonable words and I am sure that the Minister was being utterly genuine when he talked about the need for proportionality. However, what assurance can the Minister give about the energy devoted to enforcement online? How will the online dealing ban be enforced in practice? Will the resources be in place? Otherwise, surely it will be necessary in due course, if not now, to have an online ban if it is seen simply to be the easiest way of ignoring the legislation and engaging in dealing in these ivory items.
I am pessimistic that any enforcement situation can cope with the sheer volume of trade online and be able to distinguish online between legitimate and illegitimate sales. I do not believe that the alcohol and medication examples that the Minister has given should be brought into account. This is a much more difficult situation. It is much more difficult to distinguish between legitimate and illegitimate sales of ivory than in either of the two other cases that the Minister has cited. I hope the Minister will rethink the Government’s decision not to include online sales. I think an insistence that all sales were physical would make life a great deal easier. I beg to move.
My Lords, I wholly support the words of the noble Lord, Lord Clement-Jones. However, one serious aspect that may have been overlooked is a nasty little market which may escape the whole of this affair, and that is the casinos’ use of roulette balls. This is a very big, constantly renewing market. The life of a roulette ball in ivory is only about five weeks and they cost £100 each. They can only be obtained from the Far East at present through the dark market.
I do not know what the solution is, but we should not be ignorant of this big market. It is likely to continue and will be very persistent. The only alternative for a casino is to use a Teflon ball, which is fine but it bounces too much. It is too easy to use a Teflon ball which has a steel interior which can then be mixed up with a magnetisation of the roulette wheel’s rim and give easy distortion for fraud. This is why casinos do not want Teflon balls and they do want ivory balls. We should be on guard against this because it is going to be a big, dark market.
My Lords, I think that the amendment in the name of the noble Lord, Lord Clement-Jones, is intended to cover items described in Clause 7—those that contain de minimis quantities of ivory. In his remarks, he kept talking about “ivory items”. These are actually slightly different. They are not ivory items but other sorts of items containing an element of ivory which is integral to the whole. There are many more of those than there are pure ivory items.
My Lords, I have sympathy with the amendment. I have nothing further to add but the noble Lord, Lord Clement-Jones, has come up with a convincing set of arguments. I hope that the Minister will come up with some rather more powerful arguments than were contained in his letter.
As noble Lords have heard, despite a ban on international trade in ivory, tens of thousands of elephants are killed each year for their tusks. It is a tragedy and every respected antique dealer would wholeheartedly agree that everything possible must be done to bear down on it. Having in an earlier phase of my life been the Minister responsible for the UK’s efforts to bear down on illegal wildlife trafficking, I now find myself as chairman of LAPADA, the art and antique dealers’ trade association and, as such, declare an interest. Although my remarks represent my own views, they are informed by what I have learned in that capacity, as well as that of a former Minister.
As with countless other businesses today, antiques are marketed and promoted online and professional antique dealers increasingly use the internet to sell antiques and works of art. Amendment 4 would be extremely unfair on some who may deal with exempt ivory. Furthermore, it is not necessary to give effect to the Bill. In addition, to underline the fact that it is unnecessary, I point out the inconsistency of exempting musical instruments from these restrictions. I take it that anyone advertising an item online who has been granted an exemption certificate, or who has registered the item under the Clause 10 provisions, would be advised to indicate the existence of the certificate or registration as part of their promotional material.
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this issue today. We touched upon it at Second Reading and noble Lords have referred to the letter from the Minister that we received in response to that. The noble Lord will know that we have considerable sympathy with the arguments that he has put forward this afternoon. The online sale of items containing ivory is undoubtedly the most difficult market to police. The Committee has already heard that the worst violations of existing restrictions take place online. It is a global trade, using global communications. As the noble Lord said, the poachers and middlemen have sophisticated communication networks, including codes and jargon to conceal the real nature of the goods being traded. This is happening globally, across borders. This is why, ultimately, we need a global response to close these markets down. It is an area for the UK Government alone to be effective in doing this.
We also know that, as the noble Lord said, we have limited resources to police these sales. This issue is covered in amendments to the Bill which we will come to later. I also like to think that the measures already in the Bill and the additional amendments we propose would at least bring the legitimate UK online trade under control. The requirement for exemption certificates; the need for registration and photographs; the oversight of professional institutions; the removal of the defence of ignorance for buyers and sellers and the tightening up of enforcement should help to deliver more watertight controls. I understand the argument about proportionality and we need to bear it in mind quite sensitively.
Although I am sympathetic to the noble Lord, I wonder if, at this time, we should let the current proposals run and then use the reviews we are proposing in later amendments to the Bill—for example, working with the National Wildlife Crime Unit and border police—to assess how effective the Bill has been. That would give us the opportunity to look at whether we still have an online problem. The onus is on the Minister to reassure the Committee that this is going to be effective in tackling online trade. Otherwise, the whole Bill will be effectively undermined if all the trade moves towards there.
I would like to think that the checks and balances are there. It may be that we have been proved wrong. I would like to hear more from the National Wildlife Crime Unit about whether it thinks it can manage within the existing constraints. If it feels it can do it, albeit it will probably need some extra resources—we are all well aware of that—then I am inclined to take it on trust at this moment. However, it is certainly an important issue to get right.
I thank the noble Lord, Lord Clement-Jones, for initiating this debate on whether to ban certain types of exempted, and therefore legally saleable, ivory items through online channels. The noble Lord has read out much of my answer already but it does bear repeating. From the very outset, the Bill was drafted with online and offline sales in mind. The Bill prohibits all commercial activities in ivory, regardless of where those activities take place, subject, of course, to the exemptions in the Bill.
Equally, anyone who breaches the ban, be it online or not, will be committing an offence and will face the same range of sanctions, including a criminal sanction of up to five years in prison and/or an unlimited fine. There are a number of further provisions included in the Bill that will assist in tackling illegal online sales. It will be an offence to facilitate breaching the ban. Therefore, this would include, for example, a UK-based online sales forum which facilitates the sale by allowing sellers to advertise their item, make contact with buyers and accept payment.
In that example, those responsible for such online sales forums, which would include corporate bodies, would be found to be in breach of the ban if they could not show that they had taken reasonable steps to prevent an illegal sale taking place. These steps would include, for example, ensuring that the item for sale is exempt and had been registered or had an accompanying exemption certificate. We therefore expect such online forums to take all actions to ensure that they and their users act in compliance with the ban, in the same way that we expect offline channels to do the same. The Bill also prohibits the deliberate misrepresentation of ivory during a sale—for example, as bovine bone. This issue was raised by the noble Lord and it is very important. Both the seller and the buyer could be committing an offence if one or both of the parties knew or suspected that it is ivory.
Noble Lords will be aware that other items subject to restrictions, such as kitchen knives, are allowed to be traded online. Indeed, I am not aware of any item that is singled out for such a ban depending not on the legality of the sale but on the channel—that is, online or offline—through which the sale is transacted. We believe it would be disproportionate to completely ban the commercial dealing in exempt ivory items online and that it would shut off a relatively transparent means of monitoring the extent to which trading is happening online. As a noble Lord mentioned earlier, there are 2 million to 3 million items containing ivory and it would be utterly wrong to ban the sale or the legal trading of those items online. Indeed, as my noble friend Lord De Mauley pointed out, the auction houses use the online environment as a very valuable way of marketing the items they have for sale.
We agree that enforcement is extremely important. We cannot have online trading in ivory if we are unable to enforce properly. Online sales are a priority for the National Wildlife Crime Unit regarding the illegal wildlife trade. There will be much more on enforcement and funding in due course. However, this issue is so important that I will recommend that we write to noble Lords on enforcement, on what we can do in the online environment and on the resources we intend to put into that enforcement.
I turn briefly to the point raised by my noble friend Lord James of Blackheath about roulette balls. I understand that he has been in touch with officials about this and that they have written to him. These balls will be caught by the ban but, as was mentioned, there are alternatives. I hope with this explanation I have reassured the noble Lord that we have considered—and, indeed, are considering—the matter of online sales and that he will therefore see fit to withdraw the amendment.
My Lords, can the Minister explain how we can take action against a forum that is based, say, in the Russian Federation? She talked a lot about the ability to prosecute people for contravening the law—the provisions of the Bill—but it is not clear how we would be able to take action against forums domiciled overseas.
My noble friend is quite right. If a forum is domiciled overseas, it will be up to enforcement to look at those advertising their wares and those who are looking to buy those items. However, we should also consider that in due course, the items for sale online will either be registered or will have an exemption certificate. We will be able to see clearly whether those items are legitimate, and that additional level of security for buyers and sellers is the most important thing when it comes to online sales.
My Lords, I thank the Minister. In particular, that last sentence was extremely important in the circumstances, and the noble Baroness, Lady Jones, made the same point: that that will be the essence of the online sale as well. I thank the noble Earl, Lord Attlee, for his intervention and the noble Baroness, Lady Jones, for her positive words. In response to the noble Lord, Lord Inglewood, the amendment is meant to do what it says on the tin: certain of the exemptions are exempt, and certain others are not, and Clauses 8 and 9 are excluded from the ban on online sales for a purpose.
To come back to what the Minister said, I am of course reassured about the provisions of the Bill, and it is precisely the resources and the activity around enforcement which are absolutely crucial. A provision about banning online sales is not disproportionate if enforcement is inadequate. If enforcement is adequate, then of course it would be disproportionate, but this is in a sense designed to prevent the mischief of online sales taking place without adequate enforcement. I look forward to the letter from the Minister. In particular, the noble Baroness, Lady Jones, mentioned the National Wildlife Crime Unit and other aspects of enforcement, and I very much hope that they will be fully apprised of the importance of making sure that online sales are scrutinised and that these keywords—these coded words—are understood and combated in accordance with the research from the University of Kent. This is not some figment of the imagination of those who are against ivory poaching but respectable research, and we should pay heed to it. I look forward to the letter from the Minister and obviously I reserve the right to come back on Report if necessary. In the meantime, I beg leave to withdraw.
Amendment 4 withdrawn.
Clause 1 agreed.
Clause 2: Pre-1918 items of outstanding artistic etc value and importance
5: Clause 2, page 2, line 11, leave out “pre-1918” and insert “pre-1947”
My Lords, I will deal with Amendments 5, 6, 8 and 9 in this group, and start with Amendment 5. Clause 2 represents a feature of the Bill that has resulted in the largest number of concerned comments from people who handle antiques, so it is no coincidence that we have today several amendments that address this clause.
The dateline chosen for Clause 2—for objects of,
“outstandingly high artistic, cultural or historical value”—
is, as I say, causing considerable concern. According to Clause 36(3)(a), only cultural objects made before 1 January 1918 would be eligible for an exemption certificate. It is mystifying that 1918 has been used for this exemption when it appears that even an ordinary upright piano made in 1965, with keys faced in ivory, would qualify for exemption, yet a great work of art created by a leading artist from the 1920s or 1930s would not. As things stand, no items from the Art Deco movement would gain an exemption certificate. Art Deco is greatly celebrated in the fields of architecture and artistic design, and in 2003, the Victoria and Albert Museum devoted a major exhibition to the subject.
The Minister in another place has previously expressed the desire not,
“to unduly affect artistic and cultural heritage”.—[Official Report, Commons, Ivory Bill Committee, 14/06/18; col. 98.]
Is my noble friend the Minister aware that modern British art of the 20th century, by artists both living and dead, is a thriving, distinctively British and well-respected genre? On 20 June, the auctioneer Christie’s devoted its entire day’s sale to the subject. The sculptor Richard Garbe worked in a number of different media in the 1930s, including bronze and ivory. His monumental work includes sculpture in the collection of the National Museum of Wales in Cardiff, and many of his works would be considered pre-eminent by the panel that considers acceptance of historical objects in lieu of tax. The effect of the 1918 cut-off date would be to prevent his great works being sold or exported by their owners.
Since objects for which an exemption certificate is being sought have to pass the inspection of a prescribed institution, there is very little chance that a work by Garbe would be by an impostor. Many such works will already have full provenance, describing the art galleries where they have been displayed previously and their previous ownership, particularly if they formed part of a well-recognised private collection.
The Clause 8 exemption for musical instruments allows the continued sale of musical instruments dating from as recently as 1974. If the intrinsic features of the ivory contained in post-war musical instruments are not seen as having a direct or indirect connection with modern-day poaching, it is difficult to see why a moving sculptured tablet, fashioned by Eric Gill in the 1920s, should not be afforded the same protection.
Having 1947 as a common dateline for the Clause 7 and Clause 2 exemptions would be logical and sensible and would recognise the great contribution of 20th century art to the cultural life of the United Kingdom. For those reasons, therefore, I am intrigued to know why 1918 was chosen, and I do urge on the Government a rethink in respect of this anomalous date.
I turn to Amendment 6. As things stand, the restricted way in which Clause 2 has been couched means that ivory carvings containing an amount of ivory incapable of meaningful reworking, such as small Japanese netsuke, have to meet the “outstandingly high” quality criteria. I question why this needs to be the case.
Perhaps I should first debunk one oft-repeated myth—referred to on Second Reading by the noble Lord, Lord Grantchester, at col. 1147, and the noble Lord, Lord Clement-Jones, at col. 1157—that the United Kingdom is the world’s largest legal ivory exporter. Indeed, my noble friend the Minister referred to the United Kingdom, in the debate on the first group of amendments today, as one of the largest exporters. The ivory export data submitted by the Animal and Plant Health Agency to CITES in respect of 2016, unlike data for the previous year, categorised ivory carvings under two headings. Of a total of 5,050 commercial and personal exports of worked ivory items, an incredible 4,284—that is, 84%—comprised piano keys. This represents about 82 pianos. The Government do not publish a breakdown of the remaining 766 worked ivory items exported that year, but doubtless these will include portrait miniatures, antique furniture with ivory inlay as well as solid ivory carvings. Of the items that were not piano keys, 367 were destined for China and Hong Kong. That year, Belgium exported sufficient raw ivory tusks to China and Hong Kong to create more than 20,000 small carvings and trinkets.
I understand that Hong Kong’s official stockpile of ivory tusks and worked ivory amounts to the equivalent of between 1 million and 1.5 million ivory carvings. The TRAFFIC report about the trade in antique ivory recorded a considerable drop in the number of objects made in ivory offered for sale in London between 2004 and 2016, and a fall of 47% in respect of like-for-like visits to the same antiques markets, streets or premises. That does not suggest that the presence of antiques for sale in the UK is fuelling a market for objects made from ivory, whether for home purchase or overseas consumption.
Regardless of whether some exports of low-value large ivory carvings may have been bought for recarving by workshops in the Far East, the same cannot be said of small carvings such as Japanese netsuke. They are already too small to be worth purchasing with the intention of turning them into something else and invariably have a hole passing through them, which would also make recarving pointless. As I said, our ivory export numbers are small, so the UK is not supplying large numbers of these to buyers in the Far East. Likewise, objects that incorporate small amounts of ivory mixed with other materials, such as small pieces of inlay in wooden Vizagapatam boxes from India, will never be reused, and these objects are not sought by buyers in the Far East.
Amendment 6 would continue to require all objects that contain 10% or more ivory to come under scrutiny and be issued with an exemption certificate. However, where the finite ivory content is less than 30 cubic centimetres, the item would not need to meet the “outstandingly high” criterion. Assessors would simply confirm that the object predated 1918 or 1947. Small trinkets bought 30 years ago in East Africa would not pass that test and would not be granted a certificate.
On Amendment 8, the question of religious items fashioned from ivory was raised on Second Reading, and rightly so. Many antique ivory items have religious relevance, the most obvious being ivory crucifixes. The inspiration of faith has drawn many artists to generate some of Europe’s most significant works of art. Great religious paintings come to mind, but within the field of sculpture, there are many thousands of representations of biblical scenes carved from ivory. The very early ones—15th century pieces—would undoubtedly fall under the “outstandingly high” heading, but there are many works from later centuries that have been finely executed. And we should not forget other religions. Hindu gods are frequently represented in ivory—a material that was readily available in India from its own indigenous Asian elephant. In Judaism, the handles on the end of the antique wood poles that help unroll the Torah scroll sometimes incorporated ivory. All of these items are devotional in nature, and, with this amendment, the Bill would recognise an entire field of human creativity inspired by religion.
Finally, I turn to Amendment 9. Under the Bill as drafted, unless it is a musical instrument, any antique object containing 10% or more ivory would have to pass the test of being,
“of outstandingly high artistic, cultural or historical value”.
It is not entirely clear just how many items the Government envisage would fall into that exemption, but we have been given the impression that very few would do so. It may be helpful to give just a few examples of the types of objects of historical interest that contain 10% or more ivory and which would appear unlikely to meet the Government’s proposed test. Red and white Victorian chess pieces, for example, are often contained in the drawer of a Victorian chess table—my noble friend referred to those earlier. These are of the classical type drawn by Tenniel in his illustrations to Lewis Carroll’s Through the Looking Glass. Reference has also been made today to Sheffield sterling silver English cutlery with carved handles. The list also includes Victorian needle cases and pin boxes; Georgian theatre tokens which gained the possessor admission to a particular seat or box for the season; 18th-century fans with ivory sticks and painted paper leaves; and Anglo-Indian sewing boxes and tea caddies, particularly those made in the 18th and 19th centuries in Vizagapatam on India’s eastern coast—the East India Company often arranged their supply to the UK. The list is pretty endless and a source of enormous concern to many people who value our heritage.
Does Parliament really need to restrict, in the way proposed, the sale of objects not connected with the trade in poached ivory? An individual who does not wish to purchase an antique containing ivory has the right not to do so. Equally, a person who owns an antique silver tray with ivory handles may feel uncomfortable converting it into money. That is their choice. Without a pattern of evidence showing that there is a link between the demand for ivory as a commodity in the Far East and the sale of genuine antique objects such as those that I have described, is it really Parliament’s place to tell the owners of those items that they can no longer sell them, or indeed that antiquarians can no longer buy them? After all, these are objects that it would be perfectly possible to have checked by those who have specialist knowledge.
We need to understand, too, that the objects at threat from an overly restrictive Clause 2 include the cultural inheritance not just of Europe but of Asia—including the great civilisations of India, Japan and China—and of Africa. Though many ordinary tourist souvenirs may have come from Africa, there are plenty of examples of the continent’s own great art, including its indigenous population’s commentary on the colonial era. That is exemplified by West African Loango carved tusks, such as those from the 19th century, depicting vignettes of life at the time they were carved. These show images of enslaved Africans, as well as missionaries and colonial officers. They serve as a reminder of past injustices and it would be perverse if they were to be lost to future generations.
There is also considerable concern among those who appreciate our cultural and social history about the ultimate loss of the objects that fail to meet the Clause 2 exemption test. There appears to be a lack of understanding about what is likely to happen to these objects, particularly the quirky and interesting items. Such objects provide us with a commentary on our past. I am sure that existing owners will continue to look after them, but when they are no longer able to do so, perhaps because they have to go into a care home, or when they die, what fate will then befall these objects? It is absolutely certain that the museums of this country do not have the capacity or the funds to accept or care for every single antique incorporating ivory that may be offered to them. There is no guarantee that the children or relatives of owners will be interested in historical objects—so how will they deal with their inherited items? Like any item that holds little interest to a younger generation, many of these historical objects will simply be put in the dustbin.
It is well established that when no financial value is associated with an object, it will most likely be discarded. Carrier bags are a good current example. As with real estate, when an antique retains a monetary resale value, that helps to ensure that its owner maintains and cares for it. Objects that are 100 years old certainly need looking after, and there are specialist colleges and institutions whose raison d'être is to restore and conserve them. Are we really saying that we want these objects, which help to describe our social and cultural history—objects that originate from an earlier era—to be thrown into the dustbin of history? Surely we are all sufficiently well informed these days to recognise that a silver teapot would not be made with ivory insulators today, but we can understand that 90 years ago ivory was the plastic of its era. It is perfectly possible to appreciate and continue to buy and sell historical objects that happen to incorporate old ivory while appreciating that we do not wish to make such items today.
To rectify these concerns, the exemption certificates could be extended to cover objects that are of a standard suitable for acquisition only by qualifying museums—that is, by UK-accredited museums or members of the International Council of Museums. The Bill already defines the meaning of qualifying museums and so, who better than museum curators and other specialists, who handle antique objects on a regular basis, to judge whether an object containing ivory has the qualities that would be required for acquisition by any of these government-recognised and properly constituted museums?
It has been suggested that the term “museum standard” is too subjective, but it is no more subjective than the existing wording,
“outstandingly high artistic, cultural or historical value”.
The proposal does not change the subsection (3) factors that must be taken into account by the Secretary of State and the prescribed institutions when deciding whether to grant an exemption certificate. The Clause 2 exemption would remain a very narrow one. It would mean that low-grade tourist souvenirs, such as letter openers and carved African figures from the 20th century, or mass-produced items of the type that could be bought in the ivory-carving shops of the Far East, would not be on sale in the UK. It would also mean that we are respecting our history. Owners of legally acquired objects such as a silver teapot with an ivory handle could be able to sell their possessions. Art collectors, who may have put part of their pension investment into antiques incorporating ivory, would not suddenly find that they are without funds for their retirement. I beg to move.
My Lords, I have two amendments in this group, Amendments 7 and 11. I agree with everything that my noble friend Lord De Mauley has said and I will not speak at length because I made many similar points when I introduced my earlier amendment. However, it is terribly important that we do not unwittingly pass into law an Act of Parliament that would, as its inevitable consequence, lead to the destruction of part of the fabric of our rich artistic heritage and civilisation. That is something which we should all take very seriously.
We should also take seriously the point made by my noble friend Lord De Mauley about religious significance, not just in the Christian context but in that of many religions. Of course, in the European and Christian context we should remember the school of ivory carvers that existed in Dieppe for centuries and produced, among other things, some wonderful devotional objects. They are part of the warp and weft of domestic civilisation in Europe. Just as in our churches we would throw up our hands in horror at the thought of the despoiling of monuments and other wonderful objects which happened in the 16th and 17th centuries at the time of the Reformation and the English Civil War, surely we in the 21st century do not want to connive in the despoiling of domestic objects of devotion such as those made in Dieppe.
My two amendments have a similar aim to that of my noble friend Lord De Mauley in that I would delete the words “outstandingly high” so that that paragraph in Clause 2(2) would refer to the item being of,
“artistic, cultural or historical value”.
I would of course accept “religious value” as well. That is much more objective, much less subjective, and easier to determine. In Amendment 11 I would take out the word “important” and replace it with “significant” because again that is a little less subjective and thus easier to determine.
When I spoke earlier in moving Amendment 1, I referred to the fact that there is a different application for what is an item of museum quality in my native city of Lincoln than there would be in London. There is nothing right or wrong about that, it is just a fact, and we do not wish this Bill to penalise smaller museums in places like Lincoln at the expense of London. Of course I want wonderfully important objects that naturally would go to the London museums to continue to do so—they house our great national collections. Equally, however, items from historic families in Lincolnshire, although they might be less important, nevertheless in the context of Lincolnshire history are of incalculable wealth. I hope that when the Minister replies, he will recognise the force of the many points made by my noble friend Lord De Mauley and that within this group of amendments there are things that could improve the Bill without in any way diluting its central purpose.
My Lords, I wish to speak to Amendment 9 and I declare my interest as a former president of the British Antique Dealers’ Association, which is still superbly run by the secretary-general, Mr Mark Dodgson.
We are all, and when I say “all” I mean in this Chamber and outside, appalled by the disgraceful poaching of elephants in Africa and elsewhere. The reports last week of the slaughter of so many elephants in Botswana are beyond belief. Although the Government announced extra funding last July, in the joint statement from the Foreign Office, Defra and DfID, I wonder whether even more direct help can be provided to range states in Africa. I hope all your Lordships agree that we want Britain to play its part in protecting elephants.
When I spoke during the Second Reading, I expressed the view that the Bill provides a framework for preventing the sale of modern ivory trinkets in this country, which is desirable, but we surely must bring a sense of proportion to how we protect elephants. As Clause 2 is presently worded, the requirement that cultural property may be sold only if it is of “outstandingly high” cultural value is so restrictive that it will have a damaging effect on the cultural life of this country and will prevent the sale of many items of historical significance.
The allegation that the UK is supporting a large commercial ivory trade conjures images in the public’s mind of a trade in ivory as a modern commodity, which is how it is thought of in Africa and Asia. I am not aware, however, of any evidence to suggest to any significant extent that modern poached ivory is imported into this country, offered for sale here or exported. I will explain this further since this is important to grasp in the context of this clause.
We have already heard from my noble friend Lord De Mauley that the number of worked ivory antiques exported from the UK is not as large as some of us imagine. Additionally, the TRAFFIC report made clear that large-scale seizures of African ivory tusks and bangles at UK airports are relatively rare. Furthermore, when they occurred, they represented items in transit to other countries, not destined for buyers or workshops here. Of course, some modern ivory carvings may have made their way to the United Kingdom, which TRAFFIC says are brought here by private individuals from trips abroad, not as part of smuggling rings. In the context of the hundreds of thousands of antique items incorporating ivory owned by people in Britain, there is no evidence that modern poached ivory is prevalent. Furthermore, as the antiques trade is aware, any seizures of exported ivory objects that occur do so because someone is attempting to export them without the required CITES permits, not because they represent examples of poached ivory.
Lucy Vigne, a conservationist and ivory trade researcher working in east Africa, is the author of a number of respected reports, including one recently for Save the Elephants looking at China and the trade in ivory there. She is on record in the press as saying that:
“This recent issue in the West has been taking away valuable time and resources from dealing with the big issues we are facing urgently”,
by which she meant,
“the trade in new ivory in Asia and poaching in Africa”.
In case the Committee feels that I have diverted from the points in hand, I say that I am not aware of anyone having demonstrated that the UK is awash with poached ivory. Precisely the same result would be achieved without sacrificing so many cultural items. For this reason, I support this amendment proposed by my noble friends Lord Carrington of Fulham and Lord De Mauley. I add that the debate is not “elephants or history”; both need preserving and should be dealt with together to be successful.
I was recently written to by Mary Kitson, who is honorary secretary of the Fan Circle International, an antique fan study group whose membership includes collectors, dealers, museum curators, conservators and art historians. She is extremely concerned about the impact that the Bill will have on this delightful part of our social history, and indeed the history of fashion. She explained that a collector of antique fans is likely to include in their collection fans whose sticks are made from a variety of materials such as mother of pearl, ivory, wood or metal. A fan’s sticks give strength to what is termed the leaf—the part of the fan that is exposed when the fan is fully opened. Fans with ivory sticks certainly comprise more than 10% ivory.
Other items of our social history include games that incorporate ivory components. The immediately obvious example is Victorian chess pieces, as mentioned earlier by my noble friend Lord Cormack. Then there are children’s games such as bagatelle, where the small balls can be fashioned from ivory, or the cup-and-ball game bilboquet, where the cup can likewise be made of ivory. Some of your Lordships may argue that these items could be given to museums, but they would not welcome thousands of duplicates. What is more, observing objects located behind a rope cordon or in a glass cabinet is not always the best way to appreciate them properly. There is no substitute for owning and handling antique objects in one’s own home, which is one of the best ways to interact with and appreciate our history. If we cannot recognise properly the way in which different materials were used historically, we can lose touch with our past.
It is very sad that people should even contemplate exchanging original materials in genuine antique objects with modern substitutes. The recent replacement of ivory with ivorine, a form of celluloid, in a Chippendale cabinet is a case in point. I worry about where all this is heading. Next, someone will suggest that bone or leather should be outlawed. Therefore, I support the proposal that exemption certificates should be issued for not only objects of outstandingly high historical value but also for those that are of the same calibre as objects found in our officially recognised museums. This would include not just the British Museum or the National Museum of Scotland but other wonderful collections, such as those of the Fan Museum in Greenwich or the Museum of Childhood in Bethnal Green.
My Lords, I want to make a few brief comments. When I last intervened, I should have explained that I am the president of the British Art Market Federation.
I commend the introduction in Amendment 8 of the word “religious” because there is too much religious bigotry about. It is important to respect other peoples’ views as well as thinking that your own are important. I should explain that I quite like what my children call “old stuff”. For a number of years, I had the very good fortune of chairing the Reviewing Committee on the Export of Works of Art. One thing that struck me during that time was how tastes change. Can my noble friend the Minister ensure that the way in which these things are examined recognises that tastes can change? Sometimes, items that are considered of enormous global significance were more or less unrecognised even just a few years ago. That is very important to the way in which these arrangements—which will inevitably be capricious and arbitrary to some degree—are exercised.
My Lords, I apologise to the House for not being able to be present at Second Reading. Clearly, the Bill is a most important piece of legislation, as expressed at Second Reading and this afternoon. I am sure that everybody in this House supports the main objectives. I read the report of the Second Reading in Hansard, and I particularly commend the speech of my noble friend Lord Hague, who clearly, when he was Foreign Secretary, contributed significant movement to this attempt to control the undesirable trade in recently slaughtered elephant ivory.
I would like to speak in support of Amendment 5. What concerns me is that to choose any date is clearly going to be slightly arbitrary. The Government have chosen 1918, but other international agreements refer to 1947. My noble friend Lord De Mauley made a very well-researched speech about the importance of works of art containing ivory produced in the 1920s and 1930s. It seems very strange that trading in these objects should suddenly become illegal, so I hope the Government will think again.
An earlier amendment tabled by the noble Lord, Lord Cormack, did not find support from the noble Baroness, Lady Jones, and the noble Lord, Lord Clement-Jones. I was saddened by this, because it seemed that neither of them appeared to appreciate the importance of the beautiful works of art that have over centuries been produced using ivory and many other materials.
I find myself in a difficult position. I do not want to disagree with the Government on a matter like this. I do not think it should in any way be a party political point, but I hope they will think very seriously as to whether they have chosen the right date. It seems there are very strong arguments for a later date. Of course we will not vote on this today, but should a similar amendment be proposed on Report, I would be most inclined to vote for it.
My Lords, I shall speak to Amendment 10 in this group. I rather resent the implication that the noble Lord, Lord Clement-Jones, and I do not understand the significance of beautiful works of art. That is clearly not the case. The debate that we are having is about—and we are repeating this time and again—how we can stop the illegal poaching of elephants to create, if you like, imitations of beautiful works of art.
We take a very different view from other noble Lords who have spoken to amendments in this group who have in some way wanted to water down the application of the Bill. We believe that the current definition of,
“outstandingly high artistic, cultural or historical value”,
is too subjective and too widely framed and therefore too difficult to apply with any certainty. We therefore believe that we should set the bar higher and make the definition clearer. These categories were all debated during the consultation and were framed by examining global best practice in this sector in terms of how you apply and enforce these definitions. They are designed to cover items that, when sold, do not directly or indirectly fuel the poaching of elephants, so we are back to that issue again.
We are concerned that the test has been toned down, given that there was an earlier form of wording. The earlier wording talked about the “rarest and most important” pieces, which appears to have been changed to a consideration of an item’s rarity and the extent to which it appears to be an important example of its type. Our concern is that that is difficult phraseology to apply with any certainty.
It is important that we get this wording right. If we do not, there may be other consequences that do not help what we are trying to achieve. We know that the sale of items that seem to be important and the best of their type is fuelling the market in Asia by making some items more desirable. Those who cannot afford the items classified as best of their type go out and try to find imitations, which is where we come back full circle to the reason for the Bill and the need to ensure that whatever we do does not carry on fuelling the demand for newly poached ivory. Despite what noble Lords have said, there is a link between antique and modern ivory and, therefore, a need to close that market. As I have said, the exemptions in the Bill have to be rigorously defined and enforced.
Although I shall not go to the wall on this, I would expect religious items to be covered by the current definitions. I am not convinced that we need a separate category; I would have thought that the cultural definitions covered that.
The noble Lord, Lord Cormack, said that he was worried about local and regional significance not being taken into account. Again, I think that the professionals assessing whether items meet the grade for an exemption certificate would be expected to take account of those local variations rather than just assuming that everything has a value only in the London markets.
Noble Lords are right that whatever we do in the UK is only part of tackling the problem. In many ways, we are only the middle people in an international trade that is passing through our country. That is why the Secretary of State is right in wanting to use the forthcoming international wildlife crimes conference as a means for the UK to put pressure on other countries. There is no point in us trying to do it in isolation; we have to make sure that other countries follow suit, as a number already have. This legislation is only part of the jigsaw, but we have to play our part in all this. To do that, we have to get rigorous, enforced definitions right. I am not sure that we have got them right at the moment and worry that there is too much room for subjectivity, but I am sure that the Minister will reassure me and others that the current definitions hold up.
My Lords, my noble friends’ amendments would widen the scope of Clause 2 to allow more items to fall under this category of exemption, while the noble Baroness, Lady Jones of Whitchurch, strives to tighten it. As noble Lords will know from Second Reading, the Government came forward with the current set of exemptions in discussion with the antique and museum sector.
The Bill’s intention is to prohibit commercial activities concerning ivory in the UK and the import and re-export of ivory for commercial purposes. My noble friend Lady Rawlings and other noble friends mentioned the UK’s market. Between 2005 and 2014, 31% of ivory exported from the EU for commercial purposes was from the UK; the number of worked ivory items exported to mainland China increased from 2,000 to 11,000 between 2010 and 2014, and the UK Border Force recorded 602 seizures of illegal ivory items moving into and out of the UK in the four years between 2013 and 2017.
This is the scenario in which we exist and why what we have had before is simply not good enough. I emphasise that we intend this to be one of the toughest bans in the world. We are clear as a Government that this is the right thing to do in terms of leadership. We also recognise—I feel that my noble friends in particular as owners of ivory see this differently from me—that the public interest of saving the elephant has the supremacy on these matters. However, we have sought as a responsible and reasonable Government to ensure exemptions that we think are proportionate. That is why the limited and targeted exemption from the prohibition on dealing for pre-1918 ivory items which are of outstanding,
“artistic, cultural, or historical value”,
have a rarity value and are important examples of their type is legitimate.
As has been said before, it is not the Government’s intention to affect our artistic and cultural heritage unduly. This exemption recognises that a certain stratum of ivory items are traded not because they are made of ivory, but due to their artistry or rarity. I assure both my noble friends and the noble Baroness, Lady Jones of Whitchurch, that the Government have worked extensively with conservation NGOs and the arts and antiques sector to shape this exemption. We believe that the clause, as it stands, is a proportionate approach and any change would undermine this carefully balanced position. Indeed, the chairman of the Society of Fine Art Auctioneers welcomed the distinction our proposals make,
“between the market for ivory as a substance … and the market for works of art whose significance lies in their status as works of art, not for what they are made of”.
The criteria which must be met for an item to qualify under this exemption are intentionally narrow and will be detailed in statutory guidance. My noble friends Lord De Mauley, Lord Cormack and Lord Inglewood referred to religious significance being a key factor for consideration when determining whether to issue an exemption certificate. We consider religious significance to be a factor of both cultural and historic significance—a point that the noble Baroness, Lady Jones of Whitchurch, made—so we do not believe that it is necessary to reference it separately in the Bill.
On the rationale behind the 100 years backstop, this date has been chosen as it is in line with the commonly agreed definition of “antique” as being items that are 100 years old. It represents 100 years before the Bill was introduced. The amendment from my noble friend Lord De Mauley seeks to widen this exemption to items,
“suitable ... to the collection of a qualifying museum”.
We believe that this is too broad a definition to be included as part of what is intended to be a clearly defined exemption. It is worth noting that any accredited museum may purchase an item of ivory whether or not it meets one of the categories of exemption under Clause 9. This ensures that the decision to purchase rests with the relevant experts at accredited museums.
I repeat that the rationale behind this Bill is the need to curtail the demand for ivory that is driving the disastrous poaching of elephants in increasing numbers. I noted in my Second Reading speech and, indeed, today, that this demand is fuelled by both the illicit and the licit trade. This is what the African leaders are asking to do. It is what is coming out of the UN report. It is not a Minister just saying it. People in Africa and the UN are saying to us: “Please will you bear down on your licit trade because it is part of the problem”.
I am sorry to disappoint my noble friends, but I am sure they will understand that this is designed as a narrowly drawn exemption. I am not in a position to accept the amendments and I emphasise that a great deal of attention has been paid to what are tightly defined packages of exemptions, of which this is one. I believe that the Government have produced something that is proportionate and on those grounds I ask my noble friend to withdraw his amendment.
My Lords, I want to follow up on the figures the Minister has given us. I apologise that I could not take part in Second Reading, but I am listening very carefully to the debate today. If I heard him correctly, he said that 31% of exports within the EU came from the UK. That struck me, and I wonder if it is possible to know whether those items that were exported would have fallen under the category of,
“high artistic, cultural or historical value”,
or whether they were much more ordinary, everyday exports. That might have a bearing on some of our discussions. I do not expect him to answer now, but it might be helpful to those of us who are concerned and feel sympathetic towards some of the amendments if that information could be made available.
I will, of course, look into what my noble friend said and write a letter, which I will place in the Library.
My Lords, I apologise to the Committee for not giving my counsel on this group of amendments: I am conflicted out, but it has nothing to do with ivory.
My Lords, I have listened carefully to what my noble friend the Minister said and I shall read it in Hansard as well. I did not hear him or, indeed, the noble Baroness, Lady Jones, address, for example, the matter of the greatly respected art deco movement, which is all post-1918 and therefore not covered by the 1918 exemption, or the misleading 2016 export figures that are often trotted out. I just hope that the Government know what they are doing. I shall not press these amendments today; I reserve the right to bring them back on Report, but for now I beg leave to withdraw the amendment.
Amendment 5 withdrawn.
Amendments 6 to 11 not moved.