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

Debate between Lord Carrington of Fulham and Lord Trees

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.