Ivory Bill

Report stage (Hansard - continued): House of Lords
Wednesday 24th October 2018 Lords Chamber

Report (Continued)

21:10

Clause 15: Power to stop and search vehicles

Amendment 43

Moved by

[Lord Gardiner of Kimble]

43: Clause 15, page 9, line 38, after “powers” insert “on police or customs officers”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I should say at the outset that the Government and I are sincerely grateful to the Constitution Committee for the clear recommendations outlined in its report, which we have considered thoroughly and addressed through the Government’s amendments to the Bill. I also express my gratitude to the noble and learned Lord, Lord Judge, and my noble friend Lord Cormack for raising this matter in Committee. At that stage, I promised that I would consider it fully and return to it on Report. Since then I have met the noble and learned Lord with officials on a number of occasions with a view to bringing forward the amendments tabled today. He asked me to say how much he regrets that he had to leave to fulfil a long-standing commitment outside the Parliamentary Estate. I am also permitted to say that he was prepared to put his name to the Government’s amendments to Clauses 17 to 19, and his name would have been on the Marshalled List had it not been for some timing on the day on which he sought to do so. Through those discussions, the Government have tabled a series of amendments that both address the concerns previously raised by the noble and learned Lord and my noble friend, and ensure that the ivory ban continues to be underpinned by robust and proportionate enforcement.

I must first clarify that, when I refer to accredited civilian officers, I am referring to officers of the regulator, which will be the Office for Product Safety and Standards. OPSS is part of the Department for Business, Energy and Industrial Strategy. In Committee, I also acknowledged the Constitution Committee’s recommendation that the Government could more clearly define the enforcement role of accredited civilian officers. We have taken on board these recommendations by removing Clause 17 from the Bill, and proposing two new clauses, which will be inserted after Clause 22. Together, these ensure that the powers conferred on accredited civilian officers are set out separately from those conferred on police and customs officers. This ensures that the role of accredited civilian officers as regulators of compliance is now much clearer in the Bill.

The noble and learned Lord, Lord Judge, previously raised concerns about the extent of the powers conferred on accredited civilian officers to enter and search a premises. The Government have tabled a number of amendments that significantly restrict the powers of accredited civilian officers and I would like to explain these restrictions further. These amendments mean that accredited civilian officers no longer have a specific power to enter premises for the purpose of raising awareness of the provisions of the Bill. This amendment further clarifies OPSS’s core responsibility of assessing compliance with the sales ban.

The first of the proposed new clauses, “Accredited civilian officers: powers of entry”, clearly outlines when an accredited officer may enter a premises. “Premises” is defined in the Bill as any place, including,

“(a) a vehicle, vessel or aircraft;


(b) a tent or moveable structure”.

Subject to giving reasonable notice, accredited civilian officers may enter a premises if they reasonably believe it might be used in connection with the dealing of ivory, such as the back office of an antiques shop—that is, an area that is not publicly accessible—for only one of two reasons. The first is for the purpose of assessing compliance; the second is if there are reasonable grounds to suspect there is evidence relevant to an offence on that premises.

21:15

OPSS officers may also lawfully enter a premises open to the public without giving notice. Such public spaces would include a shop, an antiques fair or a street market. Having entered such a public premise, the officer may assess compliance of items, but if they wish to enter any non-public part of the premises, such as a back office to a shop, they would need to give reasonable notice.

The Government’s amendments make it absolutely clear that accredited officers will no longer have the power to apply for a search warrant to enter any premises—that means dwellings and non-dwellings. The power to apply for a search warrant will be limited to police and customs officers only.

Government amendments remove the power to search from accredited civilian officers, and replace it with a power to “examine”. Other powers of accredited civilian officers confer the power for an officer to examine visually or measure anything that they believe may be relevant evidence—for example, an item that appears to be made of or contain ivory on display in a shop and which does not appear to fall within an exemption. They may also request any person on the premises to produce any relevant document, such as an exemption certificate or registration, that may demonstrate compliance or otherwise with the ban. If an officer identifies an item or document that is relevant evidence of an offence, or is relevant evidence to an investigation into whether an offence has been committed, the officer may seize that item or document pending further investigation.

I understand that it is the purpose of my noble friend Lord Cormack’s amendments to remove the power of seizure from accredited civilian officers. We believe, however, that this power is critical to regulating compliance. For example, if an officer suspects that an ivory item does not fall within an exemption but is on display for sale, it is important that the officer has the power to seize that item as relevant evidence of an offence. As I previously stated, the amendments I just outlined address the concerns raised by my noble friend by explaining why it is necessary for an accredited civilian officer to be able to seize an item on the grounds that it is evidence of an offence having been committed, or relevant evidence to an ongoing investigation.

We believe that the amendments strike a careful balance between ensuring that officers have only the necessary power, while ensuring that they remain able effectively to carry out their duties as regulators of the sales ban. To further restrict their powers would leave them unable to carry out their duty. Without OPSS officers, the duty of assessing compliance would fall solely to the police, and we do not believe that that is proportionate. Any ivory ban is only as effective as its enforcement, as was made abundantly clear at the Illegal Wildlife Trade Conference I recently attended.

I turn to an issue on which I have had considerable discussion with the noble and learned Lord, Lord Judge: the Constitution Committee’s recommendation that regulatory functions in the Bill should be subject to the Regulators’ Code. We fully concur with that recommendation, but are unable to address the point through an amendment to the Bill. The noble and learned Lord and I had considerable discussions on the matter, and he entirely understood the mechanism by which this needs to be done.

The Regulators’ Code is given effect by the Legislative and Regulatory Reform Act 2006. Section 24(2) provides that bodies and enforcement functions must have regard to the Regulators’ Code if they are listed in the Legislative and Regulatory Reform (Regulatory Functions) Order 2007. Using the order to ensure that the regulator is subject to the code would be consistent with the intention of Parliament when it approved Section 24(2) of the 2006 Act and would follow the correct procedure laid out in that Act.

Laying secondary legislation to amend the 2007 order to include the regulatory functions of the Bill will be a priority for the department as it works to implement the Bill. Officials are in close contact with the Department for Business, Energy and Industrial Strategy, which holds responsibility for the Legislative and Regulatory Reform Act 2006.

With these government amendments, I hope your Lordships will accept that we have taken appropriate actions to restrict and better define the role of OPSS and taken on board the recommendations made by the Constitution Committee and the noble and learned Lord, Lord Judge, and my noble friend Lord Cormack. I know that the noble and learned Lord, Lord Wallace of Tankerness, who is in his place, also contributed in Committee on these matters. I hope that noble Lords will feel that the Government have sought to address these matters in the most appropriate fashion. I beg to move.

[Lord Cormack (Con)]

My Lords, I thank my noble friend for adding his name to some of the amendments that I tabled and for listening clearly and sympathetically to what was said in Committee. I had the privilege of a brief conversation with the noble and learned Lord, Lord Judge, yesterday and he told me that he was pretty well satisfied and very sorry that, because of the engagement to which my noble friend referred, he could not be with us this evening. I said that I would mention our conversation and his satisfaction was certainly influential as far as I am concerned.

I have not got the whole loaf that I asked for in Committee, and my noble friend will recognise that, but he has gone a long way to easing our concerns. I shy away from the idea of civilian accredited officers but I accept the logic of what my noble friend said a few moments ago and I am content. I only wish that he could have been as conciliatory and obliging on some of the other amendments that I moved on the Bill, but I realise that his room for manoeuvre was somewhat limited. I thank him very much and give my full support.

[Lord Wallace of Tankerness (LD)]

My Lords, as a member of the Constitution Committee I subscribed to the amendments which were moved by the noble and learned Lord, Lord Judge, in Committee and I was delighted to be able support the concerns that he articulated so well about these provisions, which the Government have addressed very fairly. They have gone a considerable way to meeting the concerns that were expressed in the Constitution Committee’s report.

I know from conversations that I have had with the noble and learned Lord, Lord Judge, that he has been very appreciative of the time and consideration that the Minister has given to these issues. We have here a set of amendments which very much address these concerns, in terms of the restriction of the powers of accredited civilian officers, the role of OPSS and the designation that will be forthcoming under the 2006 legislation. It is a very good model of how this House works where a Committee produces a report and the Government listen and engage and come forward with some substantive changes which acknowledge the concerns that were originally raised. I am happy to support the amendments.

[Lord Grantchester (Lab)]

My Lords, I rise briefly in appreciation of these amendments, which are designed to address concerns about civilian use of policing powers. I, too, thank the noble and learned Lord, Lord Judge, for his interventions in Committee. I am grateful to the Minister for his willingness to carefully consider these issues and bring forward these amendments tonight. I also place on record our gratitude to your Lordships’ Constitution Committee for its scrutiny of the Bill and the recommendations that prompted the Government to rethink its approach to civilian enforcement bodies. These amendments deal with the concerns over policing functions, including the power of entry, search and seizure being exercised by civilian officials, and bring a more reassuring approach to their enforcement.

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend Lord Cormack, the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord Grantchester, for their support for these government amendments. I agree with the noble and learned Lord, Lord Wallace of Tankerness, that the function of this House is to consider these matters very carefully. We in government were very seized of the points that were made. I absolutely assure your Lordships that we have no intention of overstretching what I think is a better definition of what was the accredited civilian officer responsibilities. We have got there, and I am most grateful. I place on record again not only the Constitution Committee’s work on this but that of the noble and learned Lord, Lord Judge, who I am sorry cannot be here tonight, because his contribution to getting us over the line and working together was another very strong example of how we get better legislation.

Amendment 43 agreed.

Amendment 44

Moved by

[Lord Gardiner of Kimble]

44: Clause 15, page 9, line 39, leave out “sections 17 and” and insert “section”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendment 44 agreed.

Clause 16: Power to board and search vessels and aircraft

Amendments 45 and 46

Moved by

[Lord Gardiner of Kimble]

45: Clause 16, page 10, line 22, after “powers” insert “on police or customs officers”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

46: Clause 16, page 10, line 23, leave out “sections 17 and” and insert “section”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 45 and 46 agreed.

Clause 17: Powers to enter and search premises

Amendment 47

Moved by

[Lord Gardiner of Kimble]

47: Clause 17, leave out Clause 17
Member’s explanatory statement
This amendment leaves out clause 17, under which accredited civilian officers have power to enter and search premises. Instead, the new clauses inserted by the Minister’s amendments after clause 22 give accredited civilian officers a more limited power of entry, and a power to examine documents and other items, but not a power to conduct a search.

Amendment 47 agreed.

Clause 18: Warrants authorising entry and search of premises

Amendment 48

Moved by

[Lord Cormack]

48: Clause 18, page 11, line 17, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment and the others which are similarly worded would prevent the appointment by the Minister of accredited civilian officers with powers of entry and seizure.

Amendment 48 agreed.

Amendments 49 to 54

Moved by

[Lord Gardiner of Kimble]

49: Clause 18, page 11, line 21, leave out “or an accredited civilian officer”
Member’s explanatory statement
Clause 18(2)(a) currently allows an accredited civilian officer to apply for a search warrant in England and Wales or Northern Ireland. The effect of this amendment is that this will no longer be possible.

50: Clause 18, page 11, line 23, leave out “, an accredited civilian officer”
Member’s explanatory statement
Clause 18(2)(b) currently allows an accredited civilian officer to apply for a search warrant in Scotland. The effect of this amendment is that this will no longer be possible.

51: Clause 18, page 11, line 25, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at page 11, lines 21 and 23.

52: Clause 18, page 11, line 32, leave out paragraph (d)
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at page 11, lines 21 and 23.

53: Clause 18, page 12, line 8, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 11, line 17.

54: Clause 18, page 12, line 9, at end insert—
“(7) In this Act “premises” includes any place and, in particular, includes—(a) a vehicle, vessel or aircraft;(b) a tent or moveable structure.”Member’s explanatory statement
This amendment takes the definition of “premises” from clause 17 (which is left out by one of the Minister’s other amendments) and adds it to clause 18.

Amendments 49 to 54 agreed.

Clause 19: Further provision about search warrants

Amendment 55

Moved by

[Lord Cormack]

55: Clause 19, page 12, line 18, leave out “or an accredited civilian officer”

Amendment 55 agreed.

Amendments 56 to 59

Moved by

[Lord Gardiner of Kimble]

56: Clause 19, page 12, line 19, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

57: Clause 19, page 12, line 22, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

58: Clause 19, page 12, line 25, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

59: Clause 19, page 12, line 28, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

Amendments 56 to 59 agreed.

Clause 20: Powers of examination etc

Amendments 60 to 63

Moved by

[Lord Gardiner of Kimble]

60: Clause 20, page 13, line 2, leave out “an” and insert “a police or customs”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

61: Clause 20, page 13, line 3, leave out “, 17”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

62: Clause 20, page 13, line 4, leave out subsections (2) to (4) and insert—
“( ) The officer may carry out any examination or measurement of anything on the premises that the officer thinks is or may be relevant evidence.”Member’s explanatory statement
The effect of this amendment is to remove the power of a police or customs officer to test an item that the officer thinks is or may be relevant evidence, and also the power to take a sample of the item (possibly in a way that might damage it).

63: Clause 20, page 13, line 18, leave out “, 17”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 60 to 63 agreed.

Clause 21: Power to require production of documents etc

Amendments 64 and 65

Moved by

[Lord Gardiner of Kimble]

64: Clause 21, page 13, line 22, leave out “an” and insert “a police or customs”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

65: Clause 21, page 13, line 23, leave out “, 17 ”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 64 and 65 agreed.

Clause 22: Powers of seizure etc

Amendments 66 and 67

Moved by

[Lord Gardiner of Kimble]

66: Clause 22, page 14, line 4, leave out “An” and insert “A police or customs”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

67: Clause 22, page 14, line 4, leave out “, 17”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 66 and 67 agreed.

Amendments 68 and 69

Moved by

[Lord Gardiner of Kimble]

68: After Clause 22, insert the following new Clause—
“Accredited civilian officers: powers of entry
(1) An accredited civilian officer may on giving reasonable notice—(a) enter premises that the accredited civilian officer reasonably thinks may be used in connection with dealing in ivory (including any item that is made of ivory or has ivory in it) for the purpose of assessing compliance with the provisions of this Act, or(b) enter premises on which the officer has reasonable grounds to suspect that there is relevant evidence.(2) In this Act “accredited civilian officer” means an officer of the Secretary of State who is authorised by the Secretary of State for the purposes of this Act.(3) A notice under this section must—(a) be in writing,(b) be given to the occupier of the premises,(c) set out the purpose of the proposed entry, and(d) explain the effect of section 27 (offences of obstruction).(4) The requirement in subsection (3)(b) may be complied with by delivering or leaving the notice at the premises or sending it there by post.(5) This section—(a) does not authorise the entry into premises used wholly or mainly as a dwelling;(b) authorises entry only at a reasonable time.”Member’s explanatory statement
The new clause inserted by this amendment confers powers of entry on accredited civilian officers. These powers are more limited than those currently given to accredited civilian officers under clause 17, as the new clause does not confer a power of entry for the purpose of promoting awareness and understanding of the provisions of the Bill once enacted.

69: After Clause 22, insert the following new Clause—
“Other powers of accredited civilian officers
(1) This section applies where—(a) an accredited civilian officer enters premises under section (Accredited civilian officers: powers of entry), or (b) an accredited civilian officer who is lawfully on premises has reasonable grounds to suspect that there is relevant evidence on those premises.(2) The officer may carry out any examination or measurement of anything on the premises that the officer thinks is or may be relevant evidence.(3) The officer may require any person on the premises to produce any document or record in the person’s possession or control that the officer thinks is or is likely to be relevant to—(a) the question whether a relevant offence has been committed, or(b) the investigation of a relevant offence.(4) The officer may—(a) seize and detain or remove any item found on the premises;(b) take copies of or extracts from any document or record found on the premises.(5) An officer to whom a document or record has been produced in response to a requirement under subsection (3) may—(a) seize and detain or remove the document or record;(b) take copies of or extracts from the document or record.(6) The powers under subsections (4) and (5) may be exercised only—(a) for the purposes of determining whether a relevant offence has been committed, or(b) in relation to an item that the officer concerned reasonably believes to be relevant evidence.(7) The officer may require any person on the premises to provide any help or facilities, with respect to matters under the persons’s control, that the officer considers would facilitate the exercise of a power conferred on the officer by this section.(8) This section—(a) does not confer power to search a person;(b) does not confer power to seize an item that is an excluded item (see section 23).(9) Subsections (3) and (4) of section 21 apply for the purposes of this section as they apply for the purposes of that one.”Member’s explanatory statement
The new clause inserted by this amendment contains most of the powers of accredited civilian officers that are currently contained in clauses 20, 21 and 22, but not the power to break open containers.

Amendments 68 and 69 agreed.

Clause 23: Excluded items

Amendment 70

Moved by

[Lord Gardiner of Kimble]

70: Clause 23, page 14, line 24, leave out “section 22” and insert “sections 22 and (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 70 agreed.

Clause 24: Further provision about seizure under section 22

Amendment 71

Moved by

[Lord Gardiner of Kimble]

71: Clause 24, page 15, line 5, after “22” insert “or (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 71 agreed.

Clause 25: Notices and records in relation to seized items

Amendment 72

Moved by

[Lord Gardiner of Kimble]

72: Clause 25, page 15, line 25, after “22” insert “or (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 72 agreed.

Clause 26: Powers of entry, search and seizure: supplementary provision

Amendment 73

Moved by

[Lord Gardiner of Kimble]

73: Clause 26, page 16, line 7, leave out “17” and insert “(Accredited civilian officers: powers of entry)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17 and the first of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 73 agreed.

Clause 27: Offences of obstruction etc

Amendment 74

Moved by

[Lord Gardiner of Kimble]

74: Clause 27, page 16, line 39, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 19 at page 12, line 22.

Amendment 74 agreed.

Clause 28: Retention of seized items

Amendment 75

Moved by

[Lord Gardiner of Kimble]

75: Clause 28, page 17, line 6, after “22” insert “or (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 75 agreed.

Clause 29: Forfeiture of seized items by court on application

Amendment 76 not moved.

Clause 30: Appeal against decision under section 29

Amendment 77 not moved.

Amendment 78 not moved.

Amendment 79

Moved by

[Baroness Vere of Norbiton]

79: After Clause 33, insert the following new Clause—
“Contracts of insurance etc
(1) A transaction under which a person acquires an item in pursuance of an existing contract of insurance is not a purchase or sale of the item for the purposes of this Act.(2) A transaction under which an item—(a) is acquired by a regulated insurer acting in the course of the insurer’s business as such, or(b) is acquired, in pursuance of a regulated insurance contract, by a person who is or was an insured person in relation to the item under that contract,is not a purchase or sale of the item for the purposes of this Act.(3) In this section—“existing contract of insurance” means a contract of insurance entered into before the day on which section 1 comes into force;“insurance” includes reinsurance;“regulated insurance contract” means a contract of insurance effected or carried out by a regulated insurer;“regulated insurer” means a person who has permission to effect or carry out contracts of insurance under Part 4A of the Financial Services and Markets Act 2000.”Member’s explanatory statement
Under this amendment the prohibition in clause 1 would not apply to a transaction under a pre-commencement insurance contract; or in a case where (for example) a regulated insurer acquires title to an item from an insured person who has been paid out following a theft, or re-sells the item to the insured person if it is later recovered.

[Baroness Vere of Norbiton (Con)]

My Lords, this new clause tabled in the name of my noble friend the Minister and to which the noble Earl, Lord Kinnoull, has added his name means that existing insurance arrangements concerning ivory items are, for the most part, not affected by the Bill. It also ensures that owners will be able to continue to insure ivory items by exempting regulated insurance activities from the prohibition in Clause 1. Noble Lords will recall that this matter was raised by the noble Earl, Lord Kinnoull, in Committee and I am extremely grateful to him for bringing this matter to the attention of your Lordships’ House and for his ongoing assistance in this matter. I am sorry only that he has had to travel this evening and will therefore not be able to contribute to this debate.

The proposed new clause contains measures that will provide comfort to owners of items containing ivory and to insurers. It ensures that any insurance policy for, or covering, an item containing ivory that is extant at the time of commencement of this Bill is not affected by the Bill.

Secondly, the proposed new clause also exempts from the prohibition at Clause 1 a transfer of ownership from an insured person to an insurance company where the activity is regulated under the Financial Services and Markets Act 2000, as the result of the insurer paying out on a claim made against that item. Further, if that item is subsequently recovered and the original owner chooses to exercise their right to buy it back from the insurer in exchange for return of the consideration paid out, this will also be exempted from the definition of dealing in Clause 1.

However, should the original owner choose not to exercise this right, the insurance company will not be permitted to sell the item on to a third party for its pecuniary salvage value unless that item meets one of the categories of exemption and is registered or certified as such. The proposed new clause also covers transactions between insurers and reinsurers, for example when there is a takeover of an insurance business or when policies are transferred between insurers and reinsurers.

While the objective of the Bill is to prohibit the trade in items containing ivory, there is no desire to have an undue impact on the insurance industry or on consumers who own such items and wish to insure them. There will also be a desire for museums to be able to insure items containing ivory alongside other important pieces within their collections. This proposed new clause allows them to do so.

This proposed new clause will not in any way undermine the main objective of the Bill: to prevent trade in items containing ivory. It does, however, ensure a functioning insurance market for those owners of items containing ivory who wish to access it. I beg to move.

[Lord Grantchester]

I rise merely to thank the Minister for clarifying these issues around insurance, which will be helpful to many people. The noble Baroness has our support.

Amendment 79 agreed.

21:30

Clause 35: Meaning of “ivory”

Amendments 80 to 82

Moved by

[Lord Gardiner of Kimble]

80: Clause 35, page 21, line 4, 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.

81: Clause 35, page 21, line 7, after “regulations” insert “made by the Secretary of State”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 21, line 4, read with the Minister’s amendment of clause 37 at page 22, line 24.

82: Clause 35, page 21, line 10, at end insert—
“( ) Regulations made by the Scottish Ministers under subsection (2) are subject to the affirmative procedure.( ) A statutory instrument containing regulations made by the Welsh Ministers under subsection (2) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before the National Assembly for Wales and approved by a resolution of the Assembly. ( ) Regulations made by the Northern Ireland department under subsection (2) may not be made unless a draft of the instrument has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 21, line 4, read with the Minister’s amendment of clause 37 at page 22, line 24. (For the meaning of “subject to the affirmative procedure” see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010; for the meaning of “the Northern Ireland department” see the Minister’s amendment of clause 36 at page 21, line 36.)

Amendments 80 to 82 agreed.

Clause 36: Meaning of other expressions

Amendments 83 to 86

Moved by

[Lord Gardiner of Kimble]

83: Clause 36, page 21, line 19, leave out “17(7)” and insert “(Accredited civilian officers: powers of entry)(2)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17 and the first of the new clauses inserted by the Minister’s amendments after clause 22.

84: Clause 36, page 21, line 20, at end insert—
““the appropriate national authority” has the meaning given by section 37(1A) and (1B);”Member’s explanatory statement
This amendment inserts a signpost to the definition of “the appropriate national authority” inserted in clause 37 by the Minister’s amendment at page 22, line 24.

85: Clause 36, page 21, line 36, at end insert—
““the Northern Ireland department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;”Member’s explanatory statement
This amendment defines “the Northern Ireland department” for the purposes of the Minister’s amendments of clauses 35 and 37 and Schedule 1 that use the expression.

86: Clause 36, page 21, line 41, leave out “17(7)” and insert “18(7)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 12, line 9.

Amendments 83 to 86 agreed.

Clause 37: Regulations and guidance

Amendments 87 to 91

Moved by

[Lord Gardiner of Kimble]

87: Clause 37, page 22, line 24, at end insert—
“(1A) In this Act “the appropriate national authority” means—(a) the Secretary of State, for regulations that do not apply in relation to Wales, Scotland or Northern Ireland;(b) the Welsh Ministers, for regulations that apply only in relation to Wales; (c) the Scottish Ministers, for regulations that apply only in relation to Scotland; (d) the Northern Ireland department, for regulations that apply only in relation to Northern Ireland.(1B) But in the case of regulations that apply in relation to England and any other part of the United Kingdom, or in relation to any other part of the United Kingdom and not England, the appropriate authority is the Secretary of State if each necessary consent is given.The “necessary consent” is—(a) the consent of the Welsh Ministers if the regulations apply in relation to Wales;(b) the consent of the Scottish Ministers if the regulations apply in relation to Scotland;(c) the consent of the Northern Ireland department if the regulations apply in relation to Northern Ireland.(1C) The Secretary of State must consult the Welsh Ministers, the Scottish Ministers and the Northern Ireland department before making regulations prescribing a fee under section 3(1)(h), 4(7)(b), 5(4) or 10(1)(g).”Member’s explanatory statement
The inserted subsections (1A) and (1B), read with the amendments substituting references to “the appropriate national authority”, require most regulations under the Bill applying outside England to be made either by the relevant devolved authorities or with their consent. Under the inserted subsection (1C) the Secretary of State must consult those authorities before setting fees by regulations.

88: Clause 37, page 22, line 25, leave out subsection (2) and insert—
“( ) A power to make regulations under this Act—(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State or the Welsh Ministers;(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by the Northern Ireland department.”Member’s explanatory statement
This amendment is consequential on the amendments replacing references to the Secretary of State with references to the appropriate national authority. (The amendment does not mention regulations made by the Scottish Ministers because the relevant provision is made by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010.)

89: Clause 37, page 22, line 26, after “regulations” insert “made by the Secretary of State”
Member’s explanatory statement
This amendment is consequential on the amendments replacing references to the Secretary of State with references to the appropriate national authority.

90: Clause 37, page 22, line 28, at end insert—
“( ) A statutory instrument containing regulations made by the Welsh Ministers under this Act, other than regulations under section 35(2), is subject to annulment in pursuance of a resolution of the National Assembly for Wales.( ) Regulations made by the Scottish Ministers under this Act, other than regulations under section 35(2), are subject to the negative procedure.( ) Regulations made by the Northern Ireland department under this Act, other than regulations under section 35(2), are subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.” Member’s explanatory statement
This amendment is consequential on the amendments replacing references to the Secretary of State with references to the appropriate national authority.(For the meaning of “subject to the negative procedure” see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010.)

91: Clause 37, page 22, line 29, leave out subsection (4)
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments to clause 2 at page 2, line 18 (first amendment); to clause 3 at page 2, line 39; to clause 4 at page 4, lines 21 and 28; to clause 10 at page 6, line 37; and to clause 11 at page 7, line 32.

Amendments 87 to 91 agreed.

Schedule 1: Civil sanctions

Amendments 92 to 98

Moved by

[Lord Gardiner of Kimble]

92: Schedule 1, page 29, line 6, 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.

93: Schedule 1, page 29, line 14, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

94: Schedule 1, page 29, line 15, leave out “Secretary of State” and insert “authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

95: Schedule 1, page 29, line 17, leave out “Secretary of State” and insert “authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

96: Schedule 1, page 29, line 18, leave out “Secretary of State” and insert “authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

97: Schedule 1, page 29, line 19, leave out “he or she” and insert “the authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

98: Schedule 1, page 32, line 11, leave out “consult any persons” and insert “consult—
(a) the Welsh Ministers, the Scottish Ministers and the Northern Ireland department, and(b) any other persons”Member’s explanatory statement
This amendment requires the Secretary of State to consult the Welsh Ministers, the Scottish Ministers and the Northern Ireland department before publishing guidance (or revised guidance) under paragraph 21 of Schedule 1.

Amendments 92 to 98 agreed.

Schedule 2: Search warrants: England and Wales and Northern Ireland

Amendments 99 and 100

Moved by

[Lord Gardiner of Kimble]

99: Schedule 2, page 34, line 9, leave out paragraph (d)
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 11, line 17.

100: Schedule 2, page 35, line 36, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 11, line 17.

Amendments 99 and 100 agreed.

Amendment 101

Moved by

[Lord Cormack]

101: Schedule 2, page 36, line 3, leave out “or an accredited civilian officer”

Amendment 101 agreed.

Amendment 102

Moved by

[Lord Gardiner of Kimble]

102: Schedule 2, page 36, line 7, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 11, line 17.

Amendment 102 agreed.

Amendment 103

Moved by

[Lord Cormack]

103: Schedule 2, page 36, line 18, leave out “or accredited civilian officer”

Amendment 103 agreed.

Amendment 104

Moved by

[Baroness Jones of Whitchurch]

104: Insert the following Preamble—
“Whereas in 1989 the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) agreed to ban the international trade in African elephant ivory; and the resolution adopted at the 2016 Conference of Parties to CITES agreed to phase out domestic ivory markets which contributed to poaching or illegal trade in ivory:
And whereas it is expedient to give effect in the United Kingdom to the restrictions on domestic trade:”
Member’s explanatory statement
This amendment would insert a Preamble linking the Bill to the resolution adopted unanimously by governments at the 2016 Conference of Parties to the UN Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which called on all governments to close domestic ivory markets which contribute to poaching or illegal trade in ivory.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am moving Amendment 104, which deals with the Government’s obligations in the international CITES resolution. We debated this issue in Committee and it remains a concern to a number of the wildlife and elephant charities. This amendment would insert a preamble linking the Bill to the resolution adopted unanimously by Governments at the 2016 conference of parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora—CITES. This calls on all Governments to close domestic ivory markets, which contribute to the poaching of and illegal trade in ivory.

As we explained in Committee, the government amendments introduced on Report in another place, while welcome, had the accidental consequence of removing the explicit link between the Bill and CITES. There is now nothing in the Bill to make it clear that this legislation was drafted partly in response to the resolution adopted unanimously by Governments at the 2016 conference of parties to CITES.

We raised this concern in Committee, where the Minister, the noble Lord, Lord Gardiner, reaffirmed the importance and relevance of CITES. However, he argued that an explicit link in the preamble was unnecessary, given that the aforementioned government amendment made it possible to go further than CITES and broaden the scope of the Bill to all ivory species.

While we welcome this provision, we nevertheless believe that such a preamble would strengthen the Act against possible judicial and European Court of Human Rights challenges by confirming that the legislation enables the UK to comply with international obligations to control domestic ivory markets under a UN-backed treaty. Moreover, as the Minister himself noted:

“No other provision in the Bill could be limited by a reference to CITES”.—[Official Report, 12/9/18; col. 2353.]


We therefore do not accept that the reference to CITES is as limiting as the Minister would have us believe. Indeed, there are precedents for this, notably in the original legislation to implement CITES in the UK under the Endangered Species (Import and Export) Act 1976. This Act also covered thousands of non-CITES species.

We believe that this amendment, contrary to what the Minister has argued, would have the effect of strengthening rather than weakening the Bill. I beg to move this amendment and hope that noble Lords will support it.

[Lord Gardiner of Kimble]

My Lords, the noble Baroness’s amendment would insert a preamble to the Bill to reference the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, and the important resolution agreed at the CITES COP 17 regarding closing elephant ivory markets.

In Committee, I assured the noble Baroness that the removal of a link to CITES in the Bill was not an unintended consequence. It was as a direct result of the amendment made in the other place to enable the Secretary of State to broaden the scope of the Bill in the future to all ivory-bearing species, rather than only those listed under CITES. We are confident that there is no need for a reference to CITES in the Bill, and we do not believe that it would provide additional protection to the Bill, for example against legal challenge.

In Committee, I reassured your Lordships that, as a very active party to CITES, the UK will continue to be bound by and committed to its obligations under this important convention. The UK ivory ban is consistent with our obligations under both CITES and the EU wildlife trade regulations, and therefore neither need to be cited in the Bill. It is also the case that the ban goes much further than both CITES and the EU wildlife trade regulations in restricting the commercial dealing in ivory.

For example, amending Clause 35 to remove reference to CITES species and include reference to all ivory-bearing species means that all ivory-bearing species—not only CITES species—can be added to the scope of the Bill in the future if the outcome of an information-gathering exercise, such as a consultation, supports this. Therefore, the UK has gone further than outlined in the CITES resolution on elephant ivory. While I appreciate the noble Baroness’s intention to provide protection to the Bill, again I must say that we do not believe the preamble is required.

I want to make one other practical point following advice I have received. The noble Baroness referred to a preamble from much earlier legislation. It is now the case that primary legislation uses the long title to specify a Bill’s objectives, instead of a preamble.

I well understand all the connections with CITES and the EU trade regulations, but this Bill goes further. Therefore, we cannot support the noble Baroness’s amendment, for the reasons I have outlined, and I ask her to withdraw it.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the Minister for his response. We accept that the Bill has gone further than the original CITES treaty. Our objective in putting the CITES reference in the preamble was to firm up the Government’s justification, if you like, for having the Bill in the first place. We have been debating this for several days now and we are still trying to justify why we have to do it, and this is part of the continuing justification.

Given that there is still some unhappiness out there—if not indeed in your Lordships’ Chamber—our intention with what has been proposed in the Ivory Bill was to give it some legal extra bottom, if you like, in terms of why we are doing it by referring to a UN-backed treaty. Nevertheless, I accept that the Minister is saying that this was not an unintended consequence but was in fact deliberate. Time will tell whether it would have helped to have our reference in the preamble, because only in time will we know whether there are legal challenges to this.

However, given the lateness of the hour, we do not intend to move to a vote. I therefore beg leave to withdraw the amendment.

Amendment 104 withdrawn.