Ivory Bill

Debate between Lord Gardiner of Kimble and Lord De Mauley

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

[Lord De Mauley]

I am very grateful to my noble friend. Can he give us an indication of what the level will be?

[Lord Gardiner of Kimble]

No, my Lords, I am not able to give an exact sum.

Ivory Bill

Debate between Lord Gardiner of Kimble and Lord De Mauley

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 12th September 2018 Lords Chamber

[Lord De Mauley (Con)]

My Lords, I reiterate my declaration of interest as chairman of LAPADA, the art and antiques dealers’ trade association. We have worked closely with BADA, the other major trade association.

On the face of it, Clause 12(2) provides protection against prosecution for those people who are not aware that the item they are handling contains elements of ivory. That they may be prosecuted only if it can be shown that they knew or suspected, or ought to have known or suspected, that an item was made from ivory appears to me to be reasonable. I suppose that I could see that the interaction between this subsection and Clause 35(4) could cause confusion and potentially prove unjust. As I understand it, Clause 35(4) means there is the presumption that, if a material can be proved to be ivory of any animal, it can be assumed to be the ivory of an elephant unless proved otherwise. If one takes the case of someone who genuinely believes an item to be made from the ivory of another species and not from elephant ivory, I am not sure whether they would receive the protection of Clause 12 because it does not refer specifically to elephant ivory. I wonder whether the Minister can shed any light on this point.

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

My Lords, this amendment would mean that persons could not use a defence that they did not know or suspect, or ought to know or suspect, the item was ivory. I should therefore explain why this provision was included and how it would be applied.

This provision has been included to help tackle the problem of illegal ivory items being deliberately mislabelled as another substance, such as bovine bone. It is also to protect those who fall victim of mislabelling of ivory and who, and I underline this, genuinely did not know that the item they were buying contained ivory. The purpose of the Bill is not to penalise or criminalise unnecessarily people who have made a genuine mistake. This provision also allows the police, enforcement bodies and courts to use their professional discretion when considering the most appropriate approach to deploy for individual defendants.

The issue of labelling ivory as another substance when it is sold is a common one. Illegal ivory items are often deliberately mislabelled as another substance, such as bovine bone, in order to evade existing restrictions on ivory sales. For this reason, the Bill ensures it is an offence to deal in ivory where that person knew or suspected, or ought to have known or suspected, that it was ivory. In practice, this means that, where it is clear that a person is deliberately mislabelling ivory as some other substance in order to attempt to circumvent this ban, this will be an offence. Likewise, anyone buying items of mislabelled ivory who could reasonably be expected to know it is elephant ivory will also be liable.

The enforcement bodies and courts will consider the position of the person when taking a view as to whether they should have known or suspected the item was ivory; for instance, if the person is an antiques dealer or a member of the public. They may also, for example, take into account if it is a repeat offence or if the seller deliberately mislabelled the item and then provided other information to indicate more discreetly to potential buyers that the item was in fact ivory. For example, sellers have been known to include close-up photographs in order to show the tell-tale lines or crosshatching, which are characteristic of ivory.

I will need to reflect on what on my noble friend Lord De Mauley said, but the Bill at this moment relates to elephant ivory. We will come on to further amendments that relate to the ability of this legislation potentially to extend to other species. For the moment, the Bill is dealing with elephant ivory.

Clause 12(2) is phrased to capture some instances of genuine mislabelling, where there was no intention to breach the ban and where the person could not reasonably be expected to know the item was ivory. This element of the Bill is designed to protect such people, who may be buyers, sellers or those facilitating a sale or purchase and whose prosecution I think your Lordships would accept is not what we are seeking in this legislation. I hope for those reasons the noble Baroness is able to withdraw her amendment.

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[Lord De Mauley]

My Lords, I rise to speak to Amendments 39 and 40. Starting with Amendment 39, Clause 14 grants National Crime Agency officers powers to stop and search someone when they have “reasonable grounds” to believe that an offence may have been committed. This could, for example, include an alleged offence connected to the registration of an antique with a low ivory content—not just an ivory carving. NCA officers are not police or customs officers and it is not entirely clear to me why they should be granted the same powers as police officers—unless, perhaps, they are qualified to assess whether an item is made from ivory and falls under the Act.

For instance, would they have sufficient understanding of the operation of the Act to be able to identify when the proportion of ivory in an object comprises more or less than the 10% threshold, or the 20% threshold in the case of a musical instrument? To carry out their duties properly, they should surely have some expertise in judging whether an item is of the correct date. The purpose of the amendment therefore is to ensure that NCA officers are properly trained for the job they are undertaking.

On Amendment 40, while there are misgivings about the extent of the role and powers of accredited civilian officers, one of their jobs is to raise awareness and understanding of the provisions in the Bill in order to facilitate and assess compliance. This being the case, there is nothing in the Bill to require sufficient knowledge of ivory on the part of an accredited civilian officer. It is important that they possess the skills and knowledge to equip them to make sound judgments, and to understand the information presented to them, when viewing antiques which may contain ivory. Unless this is the case, searches of dealers’ and auctioneers’ premises could result in inaccurate and misguided reports being submitted, alleging breaches of the provisions of the Bill. When appointing these officers, the Secretary of State should be under an obligation to ensure that the appointees have demonstrable knowledge of antique and modern elephant ivory in its various forms, and an ability to identify it. I beg to move.

[Lord Gardiner of Kimble]

My Lords, my noble friend’s first proposed amendment would require police or customs officers to undertake specific training in identifying ivory items before exercising the enforcement powers provided in the Bill. The CITES border force team is recognised as one of the best in the world at enforcing controls against illegal wildlife trade. Both the CITES border force team and the National Wildlife Crime Unit are experienced in identifying illegal wildlife products, including ivory, and already lend their expertise to police forces across the country. The skills of the CITES border force team in detecting illegal wildlife products are in demand internationally and the team regularly undertakes training with their counterparts around the world.

As needed, police forces also seek the opinion of experts, including APHA wildlife inspectors. Before the Bill comes into force, we intend to run an awareness- raising campaign around its provisions. We will work closely with the police to ensure that wildlife crime officers in police forces nationwide are apprised of these measures.

The second amendment in this group would require accredited civil officers to have,

“proven knowledge of and expertise in identifying ivory”.

In the next group of amendments I will spend a little time in my reply outlining the work of the Office for Product Safety and Standards. The accredited civilian officers from the Office for Product Safety and Standards —OPSS—which is part of the Department for Business, Energy and Industrial Strategy, will work alongside the police and customs officers to help enforce the ivory ban. While I will expand more fully, perhaps in the next group of amendments, on the important task of enforcement arrangements, the OPSS officers will be tasked primarily with raising awareness and ensuring that sellers are able to comply with the ban. They will also be responsible for checking that items for sale have the correct registration documents.

On the particular point about expertise in ivory, I can reassure my noble friend that an appropriate training programme for OPSS officers will be developed and implemented before the Act is commenced to ensure that they are equipped with the skills and expertise required to help enforce the ban. This will include, for instance, the ability to recognise the distinctive Schreger lines, the visible cross-hatching that identifies a substance as ivory. It is worth mentioning that, as needed—for example, with serious offences—officers would normally refer the items to expert witnesses. I understand the points that my noble friend made, but I hope that, with that explanation, he will feel able to withdraw his amendment.

Ivory Bill

Debate between Lord Gardiner of Kimble and Lord De Mauley

Monday 10th September 2018 Lords Chamber

[Lord De Mauley (Con)]

My Lords, Clause 2 currently leaves to the Secretary of State the choice of bodies that will perform the task of authorising the issue of exemption certificates. However, it is imperative that the Secretary of State appoints bodies that represent specialists who know their subjects and have expertise in their field. This amendment will require the Secretary of State to appoint only institutions which have expertise in objects that contain ivory. The incorporation of this requirement would also protect the Secretary of State from an accusation that he has appointed an inappropriate body. I beg to move.

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

My Lords, my noble friend’s amendment seeks to define the type of institution the Secretary of State can prescribe to provide advice under Clause 2, and I hope to reassure my noble friend that this will not be required.

Subsection (5) confers a delegated power for the Secretary of State to prescribe a list of advisory institutions. Any assessment of an item’s artistic, cultural or historical value is to a degree subjective. This is why the Secretary of State will seek the advice of the country’s foremost experts in different forms of ivory items, from the UK’s most prestigious museums. Indeed, eminent institutions such as the Victoria and Albert Museum and the British Museum, which have world-renowned expertise in areas and periods of artistic history relevant to ivory artefacts, have already confirmed that they would like to be involved. These institutions provide advice to government on matters of pre-eminence and national importance, for instance under the export licensing regime for cultural objects. They will also be required to ensure that their best-qualified experts are engaged to assess the items.

If needed, the Secretary of State may, over time, update regulations prescribing advisory institutions if, for example, a source of expertise moves from an institution or a new centre of expertise emerges. Under no circumstances would we prescribe an institution which did not hold the relevant expertise. I hope that with that reassurance about expertise my noble friend will withdraw his amendment.

[Lord De Mauley]

My Lords, I thank my noble friend. What he has said sounds helpful. I will give his response consideration before Report, so for today I beg leave to withdraw the amendment.

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[Lord De Mauley]

My Lords, I do not fully understand the desire of the noble Baroness, Lady Jones, to limit the number of times the duplicate exemption certificate can be applied for. In the internet age, any sensible person would want to check that a paper certificate was genuine and would perhaps ask for confirmation from Defra, quoting the certificate’s unique reference code. Perhaps the Minister can confirm that. If someone loses his passport more than once, I would imagine that he could still obtain a replacement from Her Majesty’s Passport Office. I am not sure why replacing an ivory exemption certificate deserves a more limited approach. Surely, whether the piece of paper is the first one issued or a second replacement, each will show the same information, presumably with the same unique reference code and image of the item. It is the fact that the item has been exempted, and that the piece of paper indicates as much, that is important.

I am not clear what misdemeanour would occur if, in error, an object owner found that they had two certificates for the same object. Whether second duplicates can or cannot be issued would not stop a criminal from attempting to produce a falsified certificate.

[Lord Gardiner of Kimble]

My Lords, the noble Baroness’s amendment recognises an important issue: to ensure that we avoid any loopholes that could be exploited by those wishing to circumvent the ivory ban and continue to trade ivory illegally. I understand the concern that an individual may exploit the provision included in the Bill to issue replacement exemption certificates under the exemption for the rarest and most important example of its type. The concern is that an individual might fraudulently use replacement exemption certificates for non-exempt items, and I am clearly interested in ensuring that that is not possible. But I say to the noble Baroness and my noble friend Lord De Mauley that such an action would be an offence under the Fraud Act 2006 and may be subject to criminal sanctions—a custodial sentence or a criminal fine.

The Bill is clear that a replacement certificate will be issued only if the original has been lost, the original was not passed on by the original owner when the item was sold, or for any other reason that the Animal and Plant Health Agency acting on behalf of the Secretary of State considers appropriate. I reassure the noble Baroness that the process that an individual must follow to request a replacement certificate will be carefully developed with APHA to avoid any potential loopholes that could be exploited by unscrupulous individuals.

First, the owner will need to declare why a replacement is required. APHA should also be able to check the application against a database of exempt items. Secondly, a unique identification number will be included on the certificate which associates it with the exempt item. Certificates will include photographs of the item as originally submitted when applying for the exemption and a narrative description of the item. Given the nature of items exempted under this category, it is highly unlikely that there would be another item of such close similarity that it could reasonably be taken to be covered by a certificate issued for another item. Officials will be working with APHA because this is an area that we are clear on. We do not want to find any loopholes in what we do. I am grateful to the noble Baroness for raising this issue, but we are very much alive to the need to ensure that the replacement certificate regime is robust and, at the same time, that replacements can be issued.

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[Lord De Mauley]

My Lords, I shall speak to both amendments in this group but deal with Amendment 16 first. Rightly, the Bill makes provision for circumstances where the owner of an item disagrees with the decision of the Secretary of State to refuse to grant an exemption certificate. Under the existing wording, the Secretary of State could simply appoint a lawyer with no knowledge of, or expertise in, ivory artefacts in order to determine the appeal. The intention of the amendment is to make sure that the appeal is heard by someone who has expertise and experience in assessing ivory works of art. An understanding of cultural property and of the methods used by curators or art market professionals to decide on the authenticity and age of such objects would be vital skills for the appointee. He or she would need to understand the reasons for the rejection and ask all the right questions. It would be unjust for all concerned if the person appointed to this role is someone unfamiliar with the relevant issues.

I turn to Amendment 15, tabled by the noble Baroness, Lady Jones. To my mind, refusing further appeals beyond the first appears to fly in the face of natural justice. Take an object such as one which an applicant understood had been owned by a famous person such as Admiral Nelson. At the time the first appeal was heard, it may be that the extent and quality of the evidence in the possession of the applicant to back up the purported provenance was deemed insufficient. Further irrefutable evidence may later come to light. Surely the applicant should be given the opportunity to present this information a second time.

[Lord Gardiner of Kimble]

My Lords, I thank the noble Baroness for her amendment, which would prevent a person applying for a Clause 5 appeal more than once. As drafted, the Bill will allow applicants to appeal a decision either to revoke or refuse the issuing of an exemption certificate for a pre-1918 ivory item that is a rare and important example of its type, so that it can be protected by an exemption. Clause 5 will enable the details of the grounds to be set out in secondary legislation. Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee has questioned this approach and recommended that more details should be set out in the Bill. We are grateful to the Committee for its consideration of the Bill. We are carefully considering its recommendations and will respond in due course and, if necessary, seek to amend the Bill on Report.

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[Lord Gardiner of Kimble]

My Lords, these amendments relate to exemptions. As I said previously, this part of the Bill has involved close consultation and dialogue with all interested parties.

A considerable number of amendments are in this group. That in the name of my noble friend Lord Cormack would remove the size qualification, set at 320 square centimetres, from the portrait miniatures exemption. As the noble Lord, Lord Grantchester, said, this exemption came out of the consultation and formed a further exemption that perhaps had not been identified before.

During the House of Commons evidence session, an expert on portrait miniatures gave evidence on how the exemption for portrait miniatures could be refined by the addition of a size limit. It is important to ensure in legislation that we have as much precision and certainty as possible. The evidence provided to the committee suggested that a size limit of six inches by eight inches for portrait miniatures would be very sensible, as it would cover the vast majority—I say to my noble friend Lord Crathorne that the expert thought this to be 90 to 95%—of pre-1918 portrait miniatures.

The Government were persuaded by this new evidence to include a size limit to this exemption and for it to apply to the visible ivory surface. We have again taken the suggestion of the expert to whom the noble Lord, Lord Grantchester, referred of six by eight inches, converted this to metric—when I took advice, I was told that this is now the way in which official bodies conduct themselves, but I do not want to get into imperial and metric—and expressed it as a total surface area in recognition of the high number of portrait miniatures which are circular or oval in shape. Further—I do not know whether this will be helpful to my noble friend the Duke of Wellington—the Bill makes it clear that the frame will not be included in the calculation of the surface area of a portrait miniature. In consultation with stakeholders, we will issue detailed guidance on the exemption criteria, which will include simple steps on how to measure surface area. This amendment was widely supported in the other place.

On the amendments about “de minimis”, I have previously mentioned the extensive work that we have carried out with stakeholders to shape this Bill and we have come to a proportionate response—mindful of what the noble Lord, Lord Grantchester, said about my own party’s 2010 and 2015 manifesto commitments to press for a total ban, referred to in the Explanatory Notes. As such, the de minimis exemption is part of a wider package of narrow and carefully defined exemptions which accounts for a range of views. To broaden the scope of the de minimis exemption would therefore not only weaken the ban but undermine this carefully balanced package. It is important to note that, in determining this package, exemptions for portrait miniatures and the rarest and most important items of their type were included. The exemptions allow for items that would have otherwise been excluded if only the de minimis exemption applied. We can tout percentages, but some states in the United States, including California, have put in place a 5% threshold for their de minimis exemption, setting an even higher bar.

The Government agree with the points made by noble Baroness, Lady Bakewell, and the noble Lord, Lord Grantchester. We believe that a 10% de minimis threshold demonstrates a robust but proportionate approach to this exemption. For example, the exemption will allow the dealing in items such as inlaid furniture to continue, but it will prevent dealing in items containing larger amounts of ivory.

My noble friends have also suggested that we specify volume in cubic centimetres, below which any item may be considered exempt. This could, I am afraid, act as a loophole for those wishing to export solid pieces of ivory to major-demand markets in the Far East. These items are at risk of being re-carved to suit local tastes, thereby further fuelling the demand for ivory and its social acceptability—we have to go back to the public interest in all this; the public interest is to do all we can do across the world to prevent the extinction of the elephant in the wild.

I recognise noble Lords’ interest in how the de minimis exemption will be applied and can assure them that information on how the volume should be assessed will be outlined clearly in guidance. For example, when registering an item, the owner will make their own assessment of the percentage volume of ivory, meaning that no damage is likely to take place. It will also be made clear that any voids which are integral to the item— for example, in a chest of drawers—will be included in the overall volume of the item.

Enforcement bodies have made clear from their experience with existing legislation that a percentage volume is the most practical measurement in assessment and enforcement, as it allows assessments to be carried out by eye. To assess the total weight of ivory in an item would be far more difficult and could even mean that ivory needed to be removed to be weighed, thereby possibly damaging the item. I hope that my noble friends will understand that we do not seek to damage such items.

My noble friends, in particular my noble friend Lord De Mauley, also raised a number of points about the definition of “integral”. I want to explain how we have arrived at this definition and why we are unable to accept his amendment. Evidence provided to us during the public consultation demonstrated a significant risk associated with any de minimis exemption if the right protections are not put in place. Criminals could, for instance, attach a large, solid piece of ivory to another product for it to meet the volume threshold of the de minimis exemption. For example, solid pieces of ivory may be added as a handle to a wooden walking stick, or larger pieces may be attached and presented on a large plinth in order for the ivory to be only 10% of the total volume. Such solid pieces of ivory could subsequently be removed, re-carved and sold in major-demand markets of the Far East, thereby further fuelling demand for ivory.

[Lord De Mauley]

I am not sure that I fully understand my noble friend. Would not these then be modern creations?

[Lord Gardiner of Kimble]

Not necessarily, my Lords.

For this reason, the criteria of the de minimis exemption include a point about the ivory needing to be integral to the item. To avoid a potential loophole being created, it is necessary that the definition of “integral” is sufficiently strict. I recognise my noble friend Lord De Mauley’s points in regard to certain items that this may affect, but we believe that the risk of the exemption being exploited by criminals to sell what should be illegal ivory items is too great.

I am not sure whether I should now refer to the noble Lord, Lord Inglewood, as my noble friend or as the noble Lord, but, whatever he is, he is my noble friend. Taken together, his amendments would remove the requirement to register pre-1947 items with less than 10% ivory by volume. We want a robust yet proportionate compliance process. I want to explain how we have ensured this in the Bill and why the Government do not feel it right to accept the amendment. I have already made clear the intention of this ivory ban and why we have decided to include narrow and targeted exemptions. These will facilitate a limited ongoing trade and allow owners of exempt ivory objects, and those involved in their sale, to continue ongoing commercial activities in ivory. It is, however, crucial that such activities are limited to objects that are unlikely to contribute to the poaching of elephants and that these exemptions are not exploited by those wishing to deal in illegal elephant ivory products.

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[Lord Gardiner of Kimble]

As ever, the noble Baroness is very generous in saying that.

I wonder whether my noble friend Lord De Mauley disagrees with my remarks, rather than my not having responded. One of the things I try to do is always to ask whether we have we answered the question. It may be that he and other noble friends simply do not agree with the analysis.

[Lord De Mauley]

The Minister answered a different question.

[Lord Gardiner of Kimble]

Given the hour and the debate that follows, perhaps we could explore that another time.

We have sought to bring forward a proportionate proposal on the musical instrument exemption. We are not in a position to support any further extensions of the exemption in what we believe is a very carefully considered package. I want to explore further the question raised by the noble Baroness. On that basis, I ask my noble friend to withdraw his amendment.