Ivory Bill

Lord Wallace of Tankerness Excerpts

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

[Lord Wallace of Tankerness (LD)]

My Lords, I do not wish to detain the House long, because the noble and learned Lord, Lord Judge, has set out very clearly the reasons—elaborated on by the noble Lord, Lord Cormack—for the concerns that this clause and ensuing clauses, which refer to an “accredited civilian officer”, have given rise to. Like the noble and learned Lord, I very much share the objectives of the Bill. Indeed, as the Constitution Committee said in its brief report published at the outset of the Summer Recess, we do not wish the progress of the Bill to be delayed as its fundamental objective was widely welcomed at Second Reading.

However, we are concerned that the important policing functions, including powers of entry, search and seizure, are to be exercised by civilian officers working directly for the Minister. As the noble and learned Lord has indicated, the Bill as it stands makes it very clear that the accredited civilian officer is an officer of the Secretary of State, authorised by the Secretary of State for particular purposes. There are no qualifications for that, although I anticipate that when he comes to reply, the Minister will elaborate on that—he gave us a foretaste when he replied to the amendment moved by the noble Lord, Lord De Mauley, in the previous group. But that is only elaboration; it is not in the Bill.

We can anticipate some things. Indeed, we will be told, as stated in the letter from the Parliamentary Under-Secretary of State, David Rutley, to Mr Alex Chalk MP, which has been put in the Libraries of both Houses, that,

“the Office for Product Safety and Standards … which is part of BEIS”,

will be the enforcement body and will be “the Office”. But there is no reference to that body in the Bill, its power and what it does. Again, we will be told that,

“the Office will fully adhere to the provisions of the Regulators’ Code”.

What is the Regulators’ Code? Parliament cannot see what it is in the Bill; nor is there even any reference to it. No doubt we will get explanations and elaborations as to the intention, but we should not easily pass legislation without any reference to it. There are serious concerns because of that absence. Even if there is reference to it, fundamental points have been made about wide-ranging powers being given to civilian officers—people who, no matter what might be said about how it would happen, ultimately will be the appointees of the Secretary of State. That is a matter of fundamental principle which the Government need to address and justify.

In conclusion, in the letter to which I have referred, the Minister said:

“We envisage close working of the Office with other enforcement bodies. The Office will use civil sanctions and criminal sanctions are likely to fall to the Police”.


The implication is that in not all circumstances will criminal sanctions fall to the police; they could fall to this body. That is quite significant: criminal sanctions might fall to a body that is appointed by the Secretary of State, without more. Some considerable reassurance will therefore be required when the Minister replies.

[Lord Norton of Louth (Con)]

My Lords, I, too, have signed to give notice of opposition to the clause standing part of the Bill. I endorse the words of the noble and learned Lord, Lord Judge, with whom I agree totally. Like him, I have no problems with what the Bill seeks to achieve; the principle is wholly worthy. Indeed, I have no problem with other parts of the Bill either. My concern is with this clause. I do not see why it cannot be excised from the Bill leaving the other parts in place.

Given the clauses that precede and succeed it, I do not see why this clause is necessary. It confers a particular power on civilian officers and civil servants in a way that is remarkable. The Explanatory Notes seek to claim that the powers conferred in the clause are not unusual, but they cite only one example as a means of doing that. One example is not sufficient to demonstrate that this is “not unusual”. It strikes me that these are remarkable powers in themselves, which means that there would have to be a compelling case for this House to go along with them.

There is already a problem with the actual powers, therefore, but then, as the noble and learned Lord indicated, we have to look at what they are designed to achieve. Subsection (2)(a) is free-standing. It confers on civil servants the power to enter purely for the purpose, as the noble and learned Lord put it, of giving a pep talk. I would be rather amazed if even police officers wanted the power to come in and simply give one a pep talk, so to confer that power on civil servants strikes me as remarkable. It is not linked to the enforcement powers; it is simply to go in and, effectively, to seek to educate people about the provisions of the Bill.

Therefore, the power of entry is remarkable but so is what it is used for. Perhaps the Minister can tell us whether there are provisions in any other Acts that confer on officials powers of this sort to go in and simply remonstrate or give a pep talk to those whom they feel need to be educated. I am at a loss to understand why the clause is in the Bill, given the other provisions that it contains.

[Lord Gardiner of Kimble]

My Lords, I express my gratitude to the Constitution Committee for publishing its valuable report, which raised some important points regarding the powers conferred by the Bill on accredited civilian officers. I place on record that I am most grateful to the noble and learned Lord, Lord Judge, for meeting me and officials so that we could discuss and, in turn, reflect on the concerns that he and the committee expressed. I am also mindful of the amendments tabled by my noble friend Lord Cormack.

The issue of enforcement is critical and I am sure that the Committee would agree that it is paramount that the enforcement of the ivory ban must be both proportionate and robust. As noble Lords will be aware, when I refer to accredited civilian officers, I am referring to the officers of the regulator, which will be the Office for Product Safety and Standards. OPSS is part of the Department for Business, Energy and Industrial Strategy. It is an experienced enforcement body that currently enforces a range of regulations on behalf of the Government, including regulations on timber, biodiversity, waste and chemicals, and carbon reduction. For example, OPSS ensures that timber traders are complying with the regulations to ensure that their products are made from legally sourced timber.

OPSS also has experience of co-working with the police, the National Wildlife Crime Unit and Border Force, which will also play a critical role in the enforcement of the ivory ban so that we make sure that the enforcement is effective and that all parties are clear on their role and remit. For all those reasons it was considered to be the most appropriate regulator.

[Lord Wallace of Tankerness]

I am interested to hear examples of the work set out in the letter to which I referred, but can the Minister tell us—this reflects the question asked by the noble Lord, Lord Norton—about the underpinning statutory basis? Which Acts relate to, for example, EU timber regulation, which underpin any work done by the Office for Product Safety and Standards?

[Lord Gardiner of Kimble]

I am waiting for some assistance to give some precise detail, but clearly, with the timber trade, there must be some legislative basis on which we ensure that timber is legally sourced. If I do not receive the full detail for the noble and learned Lord, I will of course write to him and place a copy of my letter to him in the Library.

Our intention is to ensure that the Ivory Act will be well understood and abided by and, to that end, to define clear roles for the accredited civilian officers, police officers and customs officers. For example, we expect accredited civilian officers to raise awareness and assess compliance with the ban. As such, they will play a critical but distinct role from the police. It is our intention that the accredited civilian officers will focus on low-level offences, while the police will be responsible for pursuing higher-level offences and all criminal offences. Clear protocols between the enforcement bodies will be in place ahead of the commencement and will underpin effective joint working to ensure the effectiveness of the Ivory Act.

The Constitution Committee’s report provided a number of extremely useful recommendations on how we could more clearly define the role of accredited officers in helping to enforce the ivory ban. I would like to assure all noble Lords that we are fully seized of the importance of this issue and are looking carefully at how we might consider these points further on Report.

The Constitution Committee’s recommendations also included a point about the Regulators’ Code. This is a statutory code of practice provided for by the Legislative and Regulatory Reform Act 2006. It sets out the Government’s expectations of how regulators will behave and expands on the statutory principles of good regulation. For example, regulators subject to the code must ensure that activities are carried out in a way that is transparent, accountable, proportionate and consistent, while regulatory activities should be targeted only in respect of cases where action is needed.

In practice, either a regulator or the piece of legislation that is being regulated can be listed under this Act via secondary legislation under Section 24(2) and therefore be subject to the code. A number of existing pieces of legislation that OPSS regulates—I am waiting on the detail for the noble and learned Lord—are subject to the Regulators’ Code and therefore OPSS adheres to the code in these cases. We are considering further the recommendation raised by the Constitution Committee with regard to the Regulators’ Code.