Ivory Act 2018 (Meaning of “Ivory” and Miscellaneous Amendments) Regulations 2024

Lord Carrington of Fulham Excerpts

Tuesday 5th November 2024 Grand Committee

[Lord Carrington of Fulham (Con)]

My Lords, I start by declaring my interests, as in the register. I am the president of the British Antique Dealers’ Association, which is an honorary and, sadly, unpaid position. However, I am of course speaking on my own behalf, not on behalf of any outside body.

I want to take this opportunity to review a little of the relationship that this statutory instrument has with the 2018 Act, as well as the way in which the two operate together. I hope that the Grand Committee will bear with me in this. I should start by saying that I hope we are all in favour of preserving wildlife, particularly endangered species and those threatened with extinction. We should all, therefore, be in favour of improving the Ivory Act so that it helps to achieve that aim.

The concern that some of us have about the Ivory Act, had when that Act passed through your Lordships’ House in 2018 and now have about this statutory instrument is not about their noble objectives. It is about whether they work to achieve their aspirations, the all-encompassing way in which both the Act and the SI are drafted and the unintended consequences that they lead to, not least the destruction of items made of or containing ivory above the de minimis limit—in other words, low-value items of historic interest and often of great beauty, but not of museum quality, being put in landfill because they cannot be sold.

The statutory instrument extends the definition of ivory to include whale teeth and narwhal tusks. I do not have a problem with banning the sale of modern products made from whale teeth and narwhal tusks, although I do not think there is much evidence that there is any market for modern items made from whale or narwhal.

Historically, whale teeth were used by sailors to make scrimshaw in one form or another. Whale scrimshaw can be a tooth, which has patterns or pictures inscribed into it using a sailor’s knife or another sharp object. They are of great historic interest because they shed light on the often difficult and miserable lives of sailors in the 18th and early 19th centuries. They are of particular value because of their being works of art made by the poor and working classes, so little of which has come down to us as compared to the art of the aristocracy and the upper classes. They are folk art. They are not of great monetary value. A good early example will typically sell for £100 to £200 at auction. They can be faked but rarely are because they cannot be sold for enough to justify the work that goes into them. In any case, modern scrimshaw is easily distinguished from old.

Narwhal tusks are rarely worked. Historically, they were mounted and displayed, sometimes whimsically as unicorn horns. Perhaps the most famous example is in Fishmongers’ Hall, used as a weapon to stop the terrorist on London Bridge in 2019.

The Ivory Act allows a limited trade in some antique objects containing ivory, hence the Act’s exemptions—including one permitting trade in registered antiques with less than 10% ivory content. I understand that, under this exemption, some 19,000 elephant ivory items and portrait miniatures painted on ivory have now been registered under the Act. A further 325 items of outstandingly high historical value have exemption certificates.

However, in stark contrast to elephant ivory, virtually all old objects in this statutory instrument are solid ivory, so scrimshaw cannot benefit at all from the Act’s de minimis exemptions. Nor are any of these items likely to be granted an exemption certificate for being of outstandingly high historical value, since they are folk art. So, for scrimshaw and old ethnographic objects, this statutory instrument means a 100% prohibition on sales to antique collectors—zero trade. If they cannot be sold, they will inevitably end up in landfill in time.

Why are we doing this? There is virtually no import/export trade in whale teeth or narwhal tusks. For example, in 2022, there were no commercial imports of sperm whale teeth, while just two teeth were exported. Narwhal are not on the International Union for Conservation of Nature’s endangered list.

The major concern about the way the Act and the SI work comes down to the impact on historical objects of beauty and artistic merit made of ivory. We debated extensively in Committee on the now Act whether antique ivory objects had to be destroyed to stop modern ivory knick-knacks being made in China and Vietnam. The market in Asia is for modern ivory items, often from newly poached elephant tusks, not for antiques.

One of the claims made to justify the draconian impact of the Act and statutory instrument is that it is impossible to tell whether the ivory came from an animal killed 100, 200 or 300 years ago or from one killed yesterday. However, now that we have experience of the working of the Act, it is clear that museum experts in antiques and specialists in the antiques trade can prove the age of ivory objects with or without using simple scientific tests. Indeed, the Act itself set up panels of experts to determine whether an ivory artefact of high artistic and historic importance was genuine and worth preserving. These panels seem to have no trouble distinguishing between old and new ivory. Now that it is well established that it is possible to tell the difference between old and new ivory, why can we not widen this vetting by a panel of experts to other ivory objects? It should be possible to allow them to be sold through licensed dealers and auction houses, for example.

The other argument used to justify the Act and this statutory instrument is the more nebulous one: it is all about the United Kingdom’s soft power—that is, if we crack down on the sale of ivory, Asian countries will wake up to their responsibilities to save endangered species and follow the UK’s lead, apparently not having realised that they should do so until we showed them the way. The view that we are the moral leaders of the world seems weird, patronising and possibly colonial.

How has our soft power worked? It has not had much influence on the European Union, which bans the import and export of ivory but allows it to be traded within the EU. That is very different from the UK, where the trade is completely banned. Dare I say, as a Conservative, that the EU’s response is much more logical and sensible than ours. As far as I can tell, ivory is also still freely available in much of Asia.

That brings me to a few questions for the Minister. First, what assessment have His Majesty’s Government made of the impact of the Ivory Act on the poaching of elephants in Africa? Secondly, which countries have followed the UK in introducing a total ban on the trading of ivory items? Thirdly, what assessment have His Majesty’s Government made of the number, type and value of objects containing ivory that have been destroyed as a consequence of the Act? Finally, what assessment have His Majesty’s Government made of the number of narwhal tusks and whale teeth imported into and exported out of the UK in recent years?

I know that this SI will pass but I hope that we can have a Government who understand our heritage in beautiful objects created down the ages, redolent of social and artistic history; and that such a Government can realise that saving the elephant, the whale and the narwhal can be done successfully without the destruction of hundreds of years of historic and beautiful art.

[Lord Trees (CB)]

My Lords, the Ivory Act 2018 and subsequent statutory instruments pertained only to ivory of elephant origin. Although those instruments covered the vast majority of ivory products, these new regulations extend the meaning of ivory to include the “tusk or tooth” of a hippopotamus, killer whale, narwhal or sperm whale. These species are listed under CITES, and although they compromise only a small amount of the broad definition of “ivory”, the amending regulations limit opportunities for laundering ivory under the guise of another species that is not prohibited. The regulations also mitigate the risk of poaching displacement—a lovely word I had not come across but which was in the Explanatory Memorandum—to non-elephant ivory-bearing species.

The current legislation places the burden of proof on anyone accused of potential ivory trading to prove that the ivory is not from a prohibited species. It is very useful that specific institutions are named as able to provide expert advice to the Secretary of State. I wonder whether that could partly satisfy some of the noble Lord’s concerns. I note that walrus products are already covered under the assimilated EU regulations, as the Minister mentioned.

The regulations sensitively recognise that certain indigenous communities, such as the Inuit, rely on subsistence hunting of some of these species for food and derive part of their income from the sale of ivory products as a by-product of this hunting. As I understand it, these regulations would not prevent UK tourists acquiring small amounts of ivory items made from the species covered by these regulations from these communities and bringing them back as personal possessions under CITES regulations—that is, with a permit and declaration at customs—but will prevent any degree of commercial trade and onward sale in the secondary ivory market in the UK. Can the Minister confirm my understanding of this permitted trade with indigenous communities?

The miscellaneous amendments in the instrument will further strengthen the protection of endangered species around the world. I welcome them, although I have some sympathy with the noble Lord’s concerns.

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[Baroness Hayman of Ullock (Lab)]

My Lords, I thank all noble Lords for their contributions to the debate and for raising important points. As described earlier, extending the Act to these four species demonstrates UK leadership in support of international conservation efforts, setting an example at home to encourage similar actions globally. It makes the existing ban more effective and adds protections to four species that will complement those already in place internationally under the Convention on International Trade in Endangered Species.

I was involved with this the first time around, back in 2018, and, as the noble Baroness, Lady Bakewell of Hardington Mandeville, said, it seems to have taken an awful long time to get here. I wonder whether, like me, she had a stuffed narwhal on her desk—which my grandchildren have now chosen to play with. From our perspective, it is good to see these regulations in front of us.

This measure is part of a comprehensive package of UK leadership to tackle the illegal wildlife trade and reduce poverty, including through our Illegal Wildlife Trade Challenge Fund, which has allocated £57 million to 173 projects across 60 countries. These projects are reducing demand for illegal wildlife products, strengthening law enforcement, establishing effective legal frameworks and promoting sustainable livelihoods.

I turn to answer some of the questions, and hope that we do not have another vote in the middle this time. I will look first at the consultation and stakeholder engagement that took place ahead of this. There was a call for evidence in 2019 and a public consultation from 17 July to 11 September 2021 on extending the Act to other species. The consultation received 997 responses and a clear majority supported an extension to these species. The previous Government published their response to the consultation in May last year.

There is a conservation risk to each species as exhaustible natural resources, which includes the trade in their ivory, both legal and illegal, and how this relates to their conservation status and other threats that they face. There was a clear demonstration in the proportion of respondents who supported this option and the comments submitted that commercial exploitation of species that are endangered or accepted as being in need of protection from the threat posed by trade in their parts violates public morality. So that was the consultation and its outcomes.

The noble Lord, Lord Carrington, asked specific questions around the effectiveness of the Act. One was how many elephants had been saved to date. This is a cross-cutting policy, so it is not possible to say what impact the Ivory Act alone has had. For example, the Illegal Wildlife Trade Challenge Fund is a grant scheme that funds actions to tackle illegal wildlife and poverty reduction in developing countries. These projects contribute to reducing the demand for illegal wildlife products, strengthening enforcement and establishing effective legal frameworks, and promoting sustainable livelihoods through innovative approaches, partnerships and evidence-based interventions that protect endangered species, including elephants. So I cannot be specific, but it does play a role.

The noble Baroness, Lady Bakewell, asked for more information about why we are not extending it to walrus. As I said, walrus were included in the original consultation but are not now, because they continue to be protected under existing regulations on the trade in seal products. Under these regulations, seal products, including walrus ivory, can be imported and placed on the UK market for sale only in very limited circumstances and subject to strict conditions. You can bring seal products to Great Britain and sell them only if they qualify under the Inuit and other indigenous communities exemption and have a seal catch certificate. This is an attestation document that proves that the item is exempt and that the seal products are certified as coming from a traditional hunt carried out by the Inuit or other indigenous communities. The hunt must be carried out for and contribute to the subsistence of the community, and must consider the welfare of the animal. I hope that goes some way towards answering the question from the noble Baroness, Lady Rawlings, around the fact that we work with indigenous communities on these pieces of legislation.

Further questions from the noble Lord, Lord Carrington, were to do with trade and why we decided to add these species. The main problem is that international trade in these species needs to be regulated to ensure that it does not threaten the species’ survival. The UK is also a net exporter of ivory from these species, and we are concerned that it fuels global demand and the market for these ivories.

[Lord Carrington of Fulham (Con)]

The Minister is, I think, getting slightly confused about what I asked. I was not asking whether ivory is being exported; clearly, it is not now, because it is banned. But narwhal tusks are not banned and there is no evidence that they are being exported or imported. Also, the evidence we have is that, in 2022, no sperm whale teeth were imported and two were exported. What I am saying is that, distinct from the ivory market—we can probably dispute that—the products covered specifically by this SI are exported or imported in such small quantities as to have no effect on international trade at all.

[Baroness Hayman of Ullock (Lab)]

I thank the noble Lord for his comments. I still think that there are issues around the fact that these species are endangered. We should be covering them in existing legislation that could have an impact on them in future. It is important that that is covered.

The noble Lord asked about exemptions, so let me come on to them. If an item is 100% ivory, it can be kept or follow the exemptions in Section 2 of the Act, of which I am sure he is very aware. Several other countries have closed their domestic ivory markets so, again, it is not just the UK looking at this as an action.

I should say that I have some information about narwhal ivory, which has just come through—apologies. In the 10 years between 2009 and 2019, commercial imports and exports of narwhal ivory totalled 33 items, while those of sperm whale ivory totalled 203 items. I hope that helps clarify the matter.

It might be helpful, as this issue came up a bit, for me to remind noble Lords what the exemptions to the ivory ban are. There are five exemptions, which will apply to all species once this instrument has gone through: musical instruments made before 1975 with less than 20% ivory by volume; items made before 3 March 1947 with less than 10% ivory by volume; portrait miniatures made before 1918 with a total surface area of no more than 320 square centimetres—and we have another vote.

Ivory Bill

Lord Carrington of Fulham Excerpts

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

[Lord Carrington of Fulham (Con)]

My Lords, I support my noble friend Lord Cormack’s amendment. I really just want to add to my noble friend Lord Hague that one of the great problems that the drafters of the Bill faced, and never really answered, is the claim that there is an inability in the ivory markets to tell the difference between modern ivory, newly carved from poached elephants, and antique ivory. It is in fact extremely easy to do and is done as a matter of course; indeed, it is enshrined in the Bill by museums having the expertise to determine whether an ivory item presented as of exceptional international and domestic importance—and therefore exempt under the Bill—is old or new. There is the expertise to determine whether ivory is old or new and to tell whether an ivory chess set—the example used by my noble friend Lord Cormack—is an old ivory chess set or one carved for the Hong Kong market. The reality of all this is that we are destroying a great many highly prized historical artefacts in this country for, probably, zero effect on the elephant population. That is the great tragedy of the Bill.

[Baroness Jones of Whitchurch (Lab)]

My Lords, noble Lords will not be surprised by this, but we are very much opposed to this amendment. The noble Lord, Lord Hague, put the case much more strongly than I will, but I was disappointed by the position of the noble Lord, Lord Cormack, on this. The very fact that his amendment focuses on exports goes to the heart of what the Bill is about. I am sorry that he has sought to start this debate in such a negative way. I hoped that we would have learned from our debates in Committee and that we had made the case in Committee, as the noble Lord, Lord Hague, said, that we are trying to stop the illegal exports of illegal pieces. That is the heart of the problem.

The latest CITES statistics show that there has been a dramatic increase in the amount of both raw and worked ivory being exported from the EU: in 2014-15, the last two years for which data are available, the EU exported 1,258 tusks. That is what has happened according to the CITES information. Over and above that, as the noble Lord, Lord Hague, said, there is the undercurrent of all the illegal trade of which nobody has any record. That is at the heart of this, and I am very sorry that we have started this debate looking at exports, which is the real problem that we have. I know we will go on to talk about other issues, but I regret this and I hope that the noble Lord, Lord Cormack, in other contributions that he might make, will do more to persuade us that he really understands the basis of the Bill. He said that he welcomed the Bill, but I think he has more of a responsibility to demonstrate how. I therefore urge noble Lords to oppose the amendment.

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[Viscount Hailsham (Con)]

My Lords, I rise to speak to my noble friend Lord Cormack’s Amendment 2, but what I have to say is in support of all the amendments in this group, including that tabled by the noble Baroness, Lady Quin, on Northumbrian pipes. Sharp-eyed noble Lords will have noticed that I put my name to a number of these amendments and then withdrew it. That was not because of lack of support but because I thought I was not going to be here performing professional duties, and I thought it discourteous to your Lordships’ House to sign amendments and not be here. That depends on noble Lords’ point of view.

I think everyone who has spoken in this debate and all the other debates about the Ivory Bill endorses the principle of trying to prevent elephant poaching—it is a dreadful thing—and thinks that we need to do all we can to stop it. As a matter of fact, robust action against poaching is probably the most effective way, but an effective, proportionate and reasonable way of disrupting the trade is also appropriate. That is the purpose of this Bill, but we have to apply the test of proportionality to identify whether the actions contemplated by the Bill are proportionate in their consequences both ways. There are two very serious disadvantages associated with what this Bill is about—I shall come to the amendment specifically.

The first, which my noble friend Lord Cormack dealt with quite correctly and at some length, is the interference with private property. This Bill is flagrant interference with private property, and my noble friend Lord Inglewood takes the same view. At the same time, there will inevitably be a consequential loss and destruction of the artefacts. The description of trying to sell a low-cost bit of brown furniture—although of quite interesting historical value—and it proving impossible will inevitably lead to the skip.

There is therefore a cost in all of this: a cost to principle and a cost to artefacts. That takes me on to the question: what will this Bill achieve in stopping the elephant poaching or trade? I share the view of my noble friend Lord De Mauley: I suspect very little. What this is actually about is sending a message, but messages go unheeded and unheard, and I am sure that this one will. It is about making gestures, but often these gestures should not be made. I remember the Dangerous Dogs Bill. I remember unit fines in the magistrates’ court. These were gestures that should never have been made and messages that should never have been sent.

Against that background, I turn to the way of addressing what has been identified. This Bill is going to pass, and I agree with my noble friend the Duke of Wellington that it should pass. However, there are defects within it, and the defects are being addressed by looking at the exemptions. This House should be trying to enlarge the exemptions and seeking to put in further provisos. It is in that spirit that I propose to support probably all the amendments in respect of which your Lordships’ opinion is sought, and I hope there will be quite a few Divisions. I think, too, however—and this will be to the great relief of your Lordships’ House—that the views I have expressed, which are general to the amendments in this group, actually apply to all the other amendments and will not require any repetition from me.

[Lord Carrington of Fulham]

My Lords, I rise to speak to my Amendment 25, which is a very specific amendment and rather esoteric, but I will come on to that in a moment because I really just wanted to register my agreement with the previous speakers that this Bill is far too restrictive. We are banning ivory items and ivory inlays and items containing ivory that have no possibility of being recarved in the Far East for sale on to that market and no prospect of having any value in themselves. An ivory carver sitting in Vietnam, for instance, would have no interest in carving a sliver of ivory to go into a false 18th century box. It would just make no sense at all and it would be nonsense. We ought to have a sense of proportion about what we are trying to do in this Bill.

What we are trying to do is to stop large lumps of ivory being exported to countries where they will be recarved and converted into the items that their populations think are attractive and for which they will pay good money. This is not an emotional business; it is purely a financial business. If we ban the export of large items of ivory, or their sale in this country—because they will be smuggled out of this country eventually, just as rhino horns are smuggled out of here, which is a similar problem—we will achieve what we can achieve in respect of saving the African elephant using the antique ivory trade.

As has been said, the protection of the African elephant is not down to what is sold at Christie’s in King Street in London. It is down to whether we can finance the actions against the poachers, whether we can train the police and protection officers in those countries, whether we can arm them properly, and whether we can ensure that the supply routes where the ivory is taken out of the country are shut down. That is what it is really all about. It is not about this gesture politics Bill. That is what it is about, and that is what we should be concentrating on.

I add something that has not been mentioned because it is not politically correct to do so. A lot of ivory is not obtained by rogue poachers; it is done with the connivance of people who are very powerful in the countries where the elephants are, and they make a lot of money out of it.

My noble friend the Minister assures me that several of the countries which have large numbers of elephants are in favour of us banning the sale of ivory. I am perhaps too cynical. Perhaps I have lived too long a life dealing with rogues and rascals both in politics and in business, but if I were trying to make money out of selling ivory, I would try to shut down part of the market which I thought conceivably—however misguidedly—could be competition. In other words, I would of course say, “Ban the ivory market. Ban, ban, ban”, so that I can kill the elephants in the savannah and make money by selling those tusks to Hong Kong.

I should apologise, because perhaps I should have made that speech during Committee but, as some noble Lords will know, I was under the depredations of various surgeons then, so I apologise for not making it then.

My Amendment 25 is rather esoteric. It is even more esoteric than the Northumbrian pipes of the noble Baroness, Lady Quin. Under the Bill, an item which is detachable and can stand alone is an individual item and is therefore treated as such. This is not usually important, but it is very important if you are dealing with scientific instruments. The way that 18th-century or early 19th-century mercury barometers are regulated is by a little knob that pulls out. It is detachable and independent of the barometer itself. You would use it to adjust the vernier on the scale to measure the height of the mercury and to put pressure on the mercury reservoir at the bottom of the barometer, when you regulated the barometer to show the correct barometric pressure, to make sure that the mercury was at the right level. So it has two functions.

My amendment is specifically designed to say that this knob should be treated as part of the barometer, not as a separate item, because these knobs were almost always an ivory disc—not dissimilar, I have to say, to the discs used in so many other things, such as portrait miniatures, tickets for theatres, and so on, which have no commercial value for recarving. They have commercial value because there are artistic elements to them, but the knob has no commercial value. If I tell your Lordships that they are 2.54 centimetres in diameter, those of you with a scientific bent will know that that is an inch. They are of a maximum of an inch in diameter, very thin and on a metal shank. All I am trying to do by the amendment is to ensure that antique dealers do not have to throw away the integral knob when they sell the barometer.

[The Earl of Clancarty]

My Lords, I apologise for not having spoken at Second Reading, so I shall speak very briefly. I fully support Amendment 2, tabled by the noble Lord, Lord Cormack, as well as the other amendments in the group. I believe very strongly in the protection of endangered species, but I also believe strongly in the protection of cultural heritage. The principles I hold on culture are no different from those I held on a previous Bill that passed through this House concerning the protection of cultural property in time of war. As it stands, this is a lop-sided Bill. We need to prevent the destruction of our cultural heritage, which, for some objects, is a far more likely outcome than the Minister thinks, unless the exemptions are allowed.

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[Lord Cormack]

My Lords, I wish to refer briefly to Amendment 6, which is grouped with my noble friend Lord De Mauley’s leading amendments, as is my Amendment 5. I will not speak to that amendment; my noble friend Lord De Mauley has effectively covered it, because I also want to take out the word “outstandingly”.

My Amendment 6 would take out the words “an important” and put in “a significant”. That might sound of no significance, but it is. My noble friend Lord De Mauley talked about the sorts of objects we will be dealing with here. One of the things that attracts me to social history is the things that people used and gave. I once knew a man—I have mentioned him in your Lordships’ House in earlier debates—who had an amazing collection of theatre and race tickets. Many of them were in ivory. They could not be called outstanding and I do not think that any of them could be called important, but significant they most certainly were. This was a collection that reflected the social history of the mid-18th century: the people who patronised the playhouses or went to the racecourses and gained admission by presenting an ivory ticket or token. A large collection such as the one my friend had is of some value. Many of the examples were indeed individually unique; no other tickets to that particular theatre or performance were known to exist.

I referred to this earlier when I talked about the first amendment: he collected these things because of their intrinsic interest and his own fascination with social history, but also because of the knowledge that collectively, even though he probably had not given more than £10 or £20 for any individual item, the collection was worth something. He knew that if he fell on difficult times or wanted to help a son or daughter, there was a little nest egg that would probably produce a few thousand pounds. If we enact the Bill, we will deprive a collection and a collector like that. We are effectively confiscating private property. We are not physically destroying it, although, as my noble friend Lord De Mauley said a few minutes ago, that might well be the ultimate result, but we are saying to somebody that that property, legitimately and lovingly acquired, is no longer theirs to dispose of for any money at all. That is unjust and wrong. I return to the old, worn record: how does preventing the sale of such a collection, the items in which are all of some significance, help in any way to preserve an African or an Asian elephant in 2019 or 2020?

We are all concerned about the elephants—we keep coming back to that—but there is nothing incompatible between being desperately keen to save elephants and being desperately keen to save elements of our social history.

[Lord Carrington of Fulham]

My Lords, I do not want to intervene for long, but there is a slight problem with the definition of “outstandingly”. What is outstanding to one expert may well not be to another. I raised this at Second Reading. It comes down to what sort of museum collections you are trying to create. Museums such as the V&A or the British Museum are interested only in outstanding items, and they can define what they mean by an outstanding item by reference to what they already have in their collections: to be outstanding the item should add to that collection.

Many museums, however, are not trying to do what the British Museum or the V&A do. The example that I have used before is the Geffrye Museum, a series of old almshouses on the continuation of Bishopsgate, just outside the City of London. The Geffrye Museum recreates middle-class rooms down the ages. Those middle-class rooms will have ivory items—ivory cutlery and tea caddies for example—none of which is outstanding in itself. However, items are outstanding in the sense that the Geffrye Museum considers them exemplars of what was used at that time by middle-class people—and increasingly, in some museums, by working-class people in this country. The definition of outstanding is, therefore, somewhat open to interpretation and it would be much better to remove “outstandingly” and replace it with a word such as “significant”, which would allow much more leeway in deciding whether an item is worthy of a national collection or is something that no one is interested in preserving.

[Baroness Neville-Rolfe]

My Lords, my concern is with the effects of this Bill, which may come to be criticised in the fullness of time, as elephant stocks recover and beautiful objects are lost as a result of it, and collectors of Art Deco work containing ivory are stopped in their tracks. I accept that, as we have heard from the Minister, Defra Ministers consulted during the Commons stage of this Bill, but the debate here has shown that some further changes are needed in the interests of common sense. So I support the amendments in this group from my noble friend Lord De Mauley.

I hope that the Minister will be a bit more receptive than he was towards the previous group, and ask whether he can think of any ways to reduce the concerns of people such as us about the perverse effects of these arrangements, for example in the guidance he described earlier.

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[Lord Cormack]

My Lords, I will not detain the House very long on this amendment, which is similar to an amendment I moved in Committee. I was disappointed in the response that I received. This amendment does not touch at all on any of the exemptions or provisions of the Bill; it merely makes the point that if somebody has a certificate, it should remain valid if the ownership of the item passes by inheritance to a member of the family of the registered owner. That seems to me to be sensible, fair and equitable and I cannot understand why anybody would be opposed to it. I beg to move.

[Lord Carrington of Fulham]

My Lords, Amendment 39 is a probing new clause, because I think the issue is already covered in the Explanatory Memorandum. The concern is that if an ivory item or collection of ivory items is not registered, it cannot be sold. If it cannot be sold, it has no value. If somebody dies and a valuable collection of ivories is in their estate and they have left their estate to, say, their children, then the ivories will pass to the children, as I understand it, under the provisions of this Bill—indeed, that is made clear in the Explanatory Memorandum.

Ivory Bill

Lord Carrington of Fulham Excerpts

2nd reading (Hansard): House of Lords
Tuesday 17th July 2018 Lords Chamber

[Lord Carrington of Fulham (Con)]

My Lords, strangely, I want to start by making a declaration of non-interest. Because of the sometimes emotional nature of this debate on the Bill, I think it is important to make clear that I have no interest to declare: I am not connected to the antiques trade; nor do I have a collection of ivory items, although inevitably, in common with many people, including perhaps some of your Lordships, I own some objects that contain ivory. Most were inherited from long-dead relatives, such as a Victorian coffee-pot and some early 20th-century fish knives and forks, or are decorative items which contain a small piece of ivory inlay, such as an escutcheon around the keyhole of a wooden box.

Let me add that I strongly support the intention of the Bill, as I suspect do the overwhelming majority of your Lordships and people outside this House. We all want to protect elephants and other animals hunted and slaughtered to feed the trade in modern ivory, and I have no doubt that the intention of the Bill is to do just that. However, I have very real concerns that the Bill will fail to achieve these objectives. Indeed, I fear that, paradoxically, the Bill as drafted may well increase the likelihood of poaching of elephants for their ivory.

The logical basis of the Bill is that modern ivory items are indistinguishable from items made from ivory long ago. Many people familiar with antique ivory dispute this assumption by Defra. I will return to this in detail but, broadly speaking, there are many ways to distinguish old from new ivory. At one extreme is radio carbon dating and at the other is the expertise of museum curators and ivory specialists in the antiques trade. As the Bill assumes that it is not possible to distinguish old from new, it bans all trade in ivory—except that it does not, as it creates three groups of exemptions from the ban. First, it creates an elaborate system for identifying museum-quality items of exceptional importance, which museums can then buy and sell. This accepts that museum curators can distinguish old ivory from new, since these items will be vetted by experts before they can be considered to have met the museum-quality criteria. Just how this fits with the belief that it is not possible to date antique ivory with an acceptable degree of certainty for lower-quality items is unclear.

If it is possible to tell that an item of museum quality is made of old ivory and not faked in some Vietnamese workshop, then it is possible to tell that a less remarkable item is also old. After all, the ivory is the same; it is just the ageing effects on the ivory, and often the quality of the workmanship, that are different. The Bill ignores the scale of the problem which any panel of curators will face: the number and range of items will be very large. We have many museums in this country and, of course, museums able to buy and sell will not be confined to the UK: American and EU museums regularly buy and sell in the UK’s thriving art market, and the Bill seems to allow for that.

What is museum quality for the British Museum, which has just accepted the Sassoon collection of ivories, will be different for another museum, equally respectable and academically rigorous and duly registered by the Arts Council. There are 1,576 Arts Council-registered museums in the UK. A museum such as the Geffrye Museum near Bishopsgate in London, specialising in middle-class and working-class life in the 17th, 18th and 19th centuries, would probably not be interested in the Sassoon collection, but might well be interested in an ivory-handled table knife of no great artistic value from the 18th century as illustrating the lifestyle of ordinary people 300 years ago. It might be the Millennium Gallery in Sheffield, which has an outstanding collection of cutlery through the ages, many pieces of which will have ivory handles.

The second and third categories of exemption are pre-1918 portrait miniatures and pre-1975 musical instruments. I warmly welcome these exemptions, although I suspect that they were granted not because of any logic about the amount of ivory as compared with other similar items, but rather to avoid vocal opposition from well-organised lobby groups and media stars in the music industry and on “Antiques Roadshow”. It is important to point out that the amount of ivory in a portrait miniature can be greater than that in an 18-century theatre ticket disc, yet the miniature is exempt and the theatre ticket is banned. The value of both, by the way, has nothing to do with the small amount of ivory they contain.

For musical instruments, the curious exemptions are the cut-off date of 1975 and the 20% by volume of ivory that the instrument is allowed to contain, as opposed to a limit of 10% for all other items containing ivory. If you have an upright piano with ivory keys dated before 1975, you are exempt and able to sell it. If you have a 1920s art deco sculpture, by a world-famous artist, of a dancer with a metal body but ivory head and arms, above or below 10% by volume makes no difference: you are banned from selling it as the cut-off date is 1918. Any exemption is welcome. All I ask for is some consistency and perhaps some clear and transparent logical justification.

This illustrates another problem with this Bill: the sheer volume of ivory items created over the centuries before plastics became available. I have seen estimates of 2 million to 3 million objects incorporating ivory, and I suspect that this will turn out to be a gross underestimate. Most table cutlery, to take but one example, had ivory handles prior to World War 2. There are probably several million knives and forks of all types incorporating some ivory still in existence. Before the advent of plastics, ivory was used as an insulator for a wide variety of items, such as coffee-pot and tea-pot handles. Many chests of drawers, tea caddies and writing boxes had small ivory inlay, and so it goes on. The number of items containing ivory made before 1918 will run into many millions.

The Bill recognises this problem by allowing a so-called de minimis rule of 10% by volume, although it is unclear what is meant by volume. Is it the volume of the item, including the volume in the inaccessible interior of, say, a hollow statuette or is it the volume of the silver and ivory that the outer casing of the object is made from? Who is to judge—and indeed how—whether the ivory is 10% or above or below without removing the ivory and measuring its height, width and depth? Measuring the amount of wood, let alone the amount of ivory inlay in, say, a chest of drawers is not easy because of the construction. Even with a humble fish knife and fork set, the handle may be ivory, but it is likely to be a thin tube of ivory slid over a metal shank, so the ivory content may appear to be above 10% but in reality may be well below and so qualify for the de minimis exemption.

Indeed, is the supposed ivory ivory at all? Ivory was always an expensive material, so for cheaper items, particular for household use, bone from domestic animals was substituted for ivory. Particularly with small items, it is very hard to tell the difference because the bone was chosen deliberately and with great care to look like ivory. Is my granny’s set of silver-plated fish knives, probably given to her on her wedding in 1911, ivory-handled, or are the handles made of bone chosen to look like ivory? It would take an expert in ivory to tell, and that expertise is not likely to be available to the police, the enforcement officers charged with raiding auctioneers or antique dealers.

The Bill says that items with less than 10% ivory by volume can be sold, but to be sold they have to be registered. We will need to explore in Committee how the registration will work. Whoever is charged with keeping the registry will have a major database problem, given the high number of items that potentially will need to be registered. To work, it will also have to be a low-cost registration process. I have a silver-plated coffee pot with ivory heat insulators in the handle, so that is well below 10% by volume. It is of little monetary value but considerable sentimental value because it was my great-grandfather’s, probably a wedding present from around 1880. Its value on the market would be £50 to £100 if I was lucky. So if the registration cost is £5, say, that might allow it to be sold, but if the cost is £25 then the coffee pot would end up in landfill, which would be a shame because it is quite attractive and someone might love to use it in years to come. More seriously, there are also implications for inheritance tax. If someone more fortunate than me has a valuable item that is more than 10% ivory, and assuming that it forms part of an estate that includes a house, taking the total over the inheritance tax threshold, the item containing ivory would have to be valued for probate. Since it could not be sold, I assume that HMRC would be happy to assign it a nil value—unless HMRC’s intention is that items containing ivory will be exempt from inheritance tax.

There is another problem with the register. As I understand it, the intention is that each item of less than 10% ivory will be given a certificate saying that it is registered and can be sold. So my granny’s fish knives wedding present and my great-grandfather’s coffee pot will have just such a certificate, assuming that the ivory content is less than 10%, as will many thousands of other similar items. These items were mass produced. There are many identical coffee pots, fish knives and forks around. If they were silver, they would have a hallmark that would allow them to be uniquely identified, but they are not; they are silver-plated and so have no distinguishing features from the same anonymous manufacturer’s mass-produced similar items. So the certificate of registration will inevitably find it hard to uniquely identify my granny’s wedding present. In unscrupulous hands, this means that it would be possible to forge certificates or to duplicate them electronically, so making enforcement of the ban by the police impossible. I am sure that we will explore these issues in considerable detail in Committee and on Report.

Coming back to whether the Bill will achieve its objective, which is to stop the slaughter of elephants and the carving of new ivory for sale, my right honourable friend Mr Gove believes that the UK will set an example that the rest of the world will follow and that those countries that currently fuel the demand for new ivory carvings will clamp down on their domestic trade in ivory. I hope they do, although the evidence is that the partial ban in China has only moved the carving of ivory into neighbouring countries and the sale of new ivory has continued, although more discreetly.

However, what effect will the ban have in the UK on the sale of antique ivory, and on having new ivory and passing it off as old? It is unlikely that anyone will try to carve new ivory to look like my granny’s fish knives, but then, they never would have done, as there is no value in doing so. The only value will be in forging new ivory carvings that look like antique museum-quality ivory carvings, which can then be sold. If a faked modern carving passes the vetting, its value will become very large outside the UK—an attractive proposition to criminals.

On the plus side, the Bill will stop the sale of ivory in the UK on eBay, particularly modern ivory trinkets, where perhaps the real problem of new ivory carving lies. But that trade could easily be stopped by much simpler legislation, even if it is not already illegal under existing laws, which it almost certainly is.

Since the Bill already accepts that a vetting panel can identify old ivory from new for the museum exemption and, indeed, would have to for registration purposes, I suggest it would be simpler to extend that to a general licensing system, so that antique ivory can be sold only through authorised dealers and auction houses which can demonstrate to a panel of experts their competence in identifying old from new ivory. Again, we may want to explore this in Committee.

In summary, this is a very worthy but complex Bill which will be hard to enforce and which the police will be unlikely to have the resources to enforce. It will lead to the destruction of many historic antiques, arbitrarily stripping the value from items currently legally owned by voters, and encourage the faking of high-value, museum-quality ivory carvings. All this when there are simpler and more effective ways of achieving the laudable aims of the Bill. In other words, this Bill has all the potential for being another Dangerous Dogs Act. For all its virtue signalling and gesture politics, it will fail to save the life of one single elephant currently roaming the African veldt.

Ivory Trade

Lord Carrington of Fulham Excerpts

Thursday 21st December 2017 Lords Chamber

Moved by

[Lord Carrington of Fulham]

That this House takes note of the impact of the trade in ivory on endangered species, and of the efforts being made to eliminate that trade while protecting the cultural heritage of antique ivory.

[Lord Carrington of Fulham (Con)]

My Lords, I am very pleased to have secured this debate, timed as it is to air the issues around the trade in ivory and the protection of endangered species ahead of the closing of the Defra consultation on 29 December. I recognise that, because of the consultation, my noble friend the Minister will be constrained in what he can say in reply. I look forward to the contributions from all your Lordships and, in particular, the maiden speech by the noble Lord, Lord Hogan-Howe, who has experience second to none of the problems of law enforcement.

I start, perhaps surprisingly, by making it clear that I have no interests to declare. I am not involved in the antiques trade, nor am I active in the conservation sector. In common with many people, however, I own some small items made of or decorated with ivory. Their value is minimal and the proposals in the Defra consultation paper would not materially affect me.

There is no question but that the first priority has to be to protect elephants and the other endangered species which are hunted for their ivory in Africa and Asia. The figures are stark, as laid out in the Defra consultation: the number of elephants has declined by some 30%, from 480,000 10 years ago to an estimated 144,000 on the latest count. There is little doubt that this has been driven by the demand for raw ivory to be carved, principally in China and Vietnam. I understand that China is soon to introduce a ban on ivory carving, but it remains to be seen how effective this will be and whether Vietnam will follow suit—there are some indications that Vietnam is in fact expanding its carving industry.

There has been a ban on the sale of new ivory for over 40 years under CITES. The UK has a ban on the sale of any ivory that is post 1947. The problem is that, as can been seen from the decline in the elephant population, this ban has not worked. One reason is that there is a demand for ivory carvings in the Far East, but it is not only a Far Eastern problem. New carvings—often passed off as old carvings from prior to 1947—seem to be readily sold on the internet and elsewhere in countries that, like the UK, have a ban. The problem is that the ban as it stands does not work. Everyone is agreed that we need a more effective ban and most people, as well as the WWF, agree that there will need to be exemptions from the ban.

The consultation suggests that museum-quality items held in museums could be traded between museums and that there would be an exemption for musical instruments and for items whose ivory content is minimal compared to the totality of the object—the so-called de minimis rule. There is also increasing acceptance, notably from the WWF, that miniatures should also be exempt. As I am sure your Lordships know, miniatures are small painted portraits that were popular in the late 18th and early to mid-19th centuries. They were often, but not always, painted on to thin ivory discs. However, ivory was used for many religious, decorative and household objects right up to and beyond World War II, when plastics increasingly took over most of the uses of ivory.

Some items are of important heritage value, possibly of museum quality or near museum quality. Take, for example, a medieval religious ivory carving, of great cultural and historical importance: few would argue that it should not be preserved for posterity. However, where it belongs to a private individual, as many do, under the present proposals it could not be sold unless it met the very restrictive definition of the,

“rarest and most important item”.

It could be donated to a museum, although, in many cases, this is not practical as museums want only the best, not the second best, and often only one of a particular type of object. Museums do not see their role as being to provide storage of many duplicate or near duplicate items. Indeed, many museums, when offered a collection of any sort, will accept it only if they can sell the items which they do not need for their own collection, usually in the open market and rarely to other museums. So, if no museum can be found to accept a fine medieval ivory, the only way to dispose of it would be to destroy it, since it could not be sold. I have taken a medieval carved ivory as an example, but many thousands—probably millions—of objects made of or incorporating ivory were created in 17th, 18th and 19th centuries, and not just in Europe but in India, China and, most wonderfully, Japan, where some of the greatest artistic treasures were carved from ivory from the 17th century onwards.

Ivory was used as decoration, as inlay and as veneer on furniture; it was used as insulation on silver coffee pots by the finest makers; and it was used to make handles and knobs on clocks, barometers and furniture. The knobs were often detachable and so would cause difficulties over whether they should be considered part of, say, a barometer and are therefore covered by the de minimis rule, or as a stand-alone item and therefore, under the proposals, destroyed. Ivory was used for the heads and arms of dancers in the fine statuettes made in the art deco period of the 1920s and 1930s. Ivory was used for more mundane items, such as for handles on knives and forks. It was even used for tickets to theatres and opera houses in the 18th century—little discs about 25 millimetres in diameter and 3 millimetres thick, with the date of the performance and the name of the person who purchased the ticket on the face of the disc. That is a specialist interest, but of very real cultural and historical value. It is hard to see that there would be any interest in using new ivory to reproduce those tickets, whose value is typically about £300. The ivory content in that little disc would not be of any interest to an ivory carver in China to re-carve into something more commercial. Given the increasing acceptance that portrait miniatures should be exempted because the amount of ivory they include is so small, it is hard to see why other small ivory objects should be destroyed.

I could expand the list endlessly, but I hope I have given enough examples to show the scale of the problem and the difficulty of defining which items are of museum quality, as museum quality is not confined to those items in museums. Then there are the problems of defining where the ivory content is a minimal part of the whole fabric of the item and therefore covered by the de minimis rule. Is the ivory inlay on a piece of 18th-century furniture covered by the de minimis rule, even though the amount of ivory used is greater than that in a Japanese 17th-century netsuke? As the Japanese netsuke is a solid piece of ivory, although weighing less than 200 grams, it would be destroyed whereas the piece of furniture would not be.

There is one further problem that I want briefly to mention. We would all see the sense in stopping the export of unworked ivory, such as the elephant tusks used by the Victorians to support dinner gongs in country houses. We would also see that ivory billiard balls—and virtually all were made of ivory until quite recently—can be re-carved to produce Chinese ball carvings, and that these new carvings of old ivory could be used to pass off new carvings of new ivory as being the same. In other words, new ivory could be laundered as old ivory. The problem is in the antique restoration business. Antique ivory often needs restoration, like most antiques. If a museum-quality carving needs to be restored, this can be done only with a source of ivory to carve the replacement piece. The source is typically from old billiard balls so, if the sale of billiard balls is banned, the restoration of ivory items becomes much more difficult, if not impossible.

My argument is that this is a complex problem which needs to be solved sensitively. We need a solution which stops the trade in new ivory, stops new ivory being passed off as old ivory and does not lead to the destruction of beautiful, culturally valuable items of historical interest. I suggest that the difficulty comes down to identifying old ivory from new and to ensuring that only a highly controlled and limited trade in ivory heritage items is allowed. Identifying old ivory from new is a specialist business, but one that is done all the time. For larger items, it is possible to carbon-14 date the ivory. It requires taking a piece of the ivory and subjecting it to radioactive treatment. That does not work for smaller items because of the size of the piece of ivory that is destroyed in the dating process. But specialists in ivory can identify old carved ivory from new, partly by the colour, partly by understanding the effect that time has on the deterioration of the ivory, and partly by the quality and type of carving, as well as the evidence of the carving tools used. That is a skill learned from handling many ivory items over many years, which rests in the upper echelons of the antiques trade and auction houses.

Vetting items is a regular part of what happens when an object is taken by a dealer to one of the better antiques fairs. Indeed, much of the value of an antique relies on the item being vetted for its genuine and original state. But vetting would not be enough by itself; it would be open to abuse by rogue experts. I would suggest that it could be coupled with a licensing system, so that the people doing the vetting have to be licensed to perform this task. That in turn could be expanded so that only licensed auction houses and dealers could sell antique ivory. That might sound expensive to administer, and I can quite understand that my noble friend the Minister would quail at the thought of adding that complexity and expense to the Defra budget. However, I suspect that the auction and antiques trade, through the trade bodies, might be prepared to administer and pay for any vetting and licensing scheme under the supervision of Defra.

Of course, any item of ivory, which, for whatever reason, failed the vetting and any possible carbon dating, would not be able to be sold and would probably be destroyed. The vetting system could be coupled with a total ban on the export or import of any type of ivory item, something we will have the power to implement once we leave the European Union—although this might lead to smuggling and just drive the international antiques market into less regulated countries, rather defeating the purpose of protecting elephants and hippopotamuses. Vetting and licensing would depress the value of ivory items domestically, but that might be a small price to pay, compared with a total ban.

I hope I have explained the problems to be overcome, and suggested a workable solution to how they can be overcome, while at the same time achieving our united objective of stopping the sale of new ivory masquerading as old ivory. If we do not find a solution to this problem, the consequences for anyone who owns an ivory item, from fine pieces to everyday items, would be serious, and the consequences for our artistic, cultural and historical understanding of the past would be tragic. I believe this problem is capable of solution, and that we can save the elephants while at the same time saving our history. I beg to move.

--- Later in debate ---

[Lord Carrington of Fulham (Con)]

My Lords, we have had a very interesting, indeed an excellent debate. I thank all noble Lords who have participated, particularly the noble Lord, Lord Hogan-Howe, for his exemplary and excellent maiden speech. I took two things away from it. One was his comment about the difficulty of policing gifts, on which we all need to reflect, because it bears directly on whether ivory can be passed down from one generation to another successfully. The other is that he is from Sheffield. Sheffield was one of the great users of ivory in the 19th and the early part of the 20th century. There is barely a set of cutlery from that age which does not have ivory handles, as did that of the grandmother of the noble Lord, Lord Purvis; some are of very fine quality indeed.

There is unanimity across the House on the objective of protecting the elephant and other endangered animals that are sources of ivory. The question is how that can be achieved. I hear the doubt expressed about whether the ivory trade can be regulated in a way that will be effective in achieving our joint objective. I believe it can; I know that others believe it cannot. We need a proper study of whether a process of vetting—as I said in my speech, it is well practised in the antiques trade—coupled with a rigorous licensing system that takes out all the small auctioneers without expertise and the small dealers in trinkets, could achieve the objective we all want: preserving the elephant. With those comments, I commend the Motion.

Motion agreed.