Ivory Bill (Fifth sitting)

Debate between Baroness Hayman of Ullock and Anna Turley

Committee Debate: 5th sitting: House of Commons
Tuesday 19th June 2018 Public Bill Committees

[Sue Hayman]

I beg to move amendment 10, in clause 12, page 8, line 1, leave out subsection (2).

This amendment would make the offences under section 12 strict liability offences. The defence of having taken all reasonable precautions and exercised all due diligence would remain, but the burden of proof would be shifted to the person on proving this, rather than on prosecutors proving the person knew the item was ivory.

I will spend a little longer on this amendment and go through the evidence from various witnesses. Chief Inspector Hubble raised serious concerns about her ability to prosecute if the Bill remains in its current form. She said:

“We also have some concerns that, as the Bill stands, we have to prove that it is ivory and that the person dealing in it knew, or ought to have known, that it was ivory. If you look on eBay at any given moment, you will find a number of items being offered for sale that are not labelled as ivory.”

The Minister might remember that in Committee we had a look at eBay, and it was extraordinary how many items were clearly being mis-sold. Chief Inspector Hubble continued:

“From an enforcement perspective, if someone is buying something that is not labelled as ivory, and they are selling it as something not labelled as ivory, how do I prove they knew it was ivory? With the Bill as it stands, that, for me, is a real concern from an enforcement perspective. The onus should be on them to prove that they did not know, not on me to prove that they did.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 35, Q59.]

I think that is very clear. There is no point in legislation if it cannot be enforced effectively.

Chief Inspector Hubble was then asked by my hon. Friend the Member for Bristol East whether adding a provision covering mis-labelling would help. Again, the chief inspector was clear that in order to prosecute under the terms of the Bill as drafted, enforcement officers would still have to prove that the seller

“knew it was ivory and that they had then mislabelled it, knowing that it was ivory.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 39, Q75.]

She then added:

“All the time that the burden of proof is on us to prove that they knew, that is difficult from an enforcement perspective. If the burden of proof was on them to prove that they did not know it was ivory, that would make enforcement much easier.”

Later she said:

“In general, we do not deal with the people who will apply for exemption certificates and who will register their items and apply for permits, because they are the responsible, law-abiding people. We deal with the ones who have a complete disregard for policy protocol legislation. We deal with the ones who are deceptive, who lie and who want to make money out of this. The burden of proof has to be manageable and has to be able to be enforced, otherwise it is not enforceable legislation.” ––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 39, Q76 and Q79.]

I am sure that none of us would want to pass legislation if the officers responsible for delivering it did not think that it was enforceable.

On Second Reading, the right hon. Member for North Shropshire (Mr Paterson) raised concerns about the implications of the current burden of proof lying with the enforcement agencies. He said:

“The defence of ignorance in clause 12 is a real concern, particularly as it is well known that the illegal trade is fuelled by unscrupulous traders marketing ivory as a bone or as ivory sourced from other species, such as a mammoth.”

I know the hon. Member for Mid Derbyshire is particularly concerned about that. The right hon. Member for North Shropshire continued:

“There should therefore be a basic sanction based on strict liability.”—[Official Report, 4 June 2018; Vol. 642, c. 104.]

When the ban on the sale of ivory is introduced, as I hope it will be shortly, if it is to have the outcomes that we all hope for, it will need to be vigorously enforced. As I said, it is no good introducing legislation unless we can enforce it vigorously. Deleting subsection (2) would shift the burden of proof and make enforcement more likely, and it would answer the request of enforcement officers.

[Anna Turley (Redcar) (Lab/Co-op)]

I want to reinforce what my hon. Friend has said. The evidence from the police was clear: the burden of proof is critical, particularly given how easily items are passed around on the internet. There is huge scope for people to plead ignorance.

We heard examples of ivory being called animal bone. I looked briefly at eBay during that evidence session and was shocked at the proliferation of objects listed as animal bone, when they are clearly ivory, even to my unknowing eye. It will be extremely difficult for the police to enforce this legislation. We also heard about their small teams and the cuts. The critical point is that we are making their lives more difficult. It is extremely serious when a chief inspector tells a Committee in evidence:

“The burden of proof has to be manageable and has to be able to be enforced, otherwise it is not enforceable legislation.”––[Official Report, Ivory Public Bill Committee, 12 June 2018; c. 39, Q79.]

We cannot in any circumstances pass legislation that is not enforceable. It is great to say that we will lead the world with our ban on ivory, forge our way ahead and set a great example. If it is not enforceable and the trade continues, we might as well pack up and go home. We know what we are here to do. If the evidence from the frontline is that the Bill is not enforceable, that is not acceptable. We have to push on that.

I would like clarification from the Minister on subsection (2), where it states

“if the person knows or suspects, or ought to know or suspect”.

Will he provide evidence of how someone “ought to know” and how that could be defined in legislation? It does not seem strong enough to me. Enforcement officers are clearly asking for a shifting of the burden of proof, and that is what is needed if we are to make the Bill remotely enforceable.

--- Later in debate ---

[Sue Hayman]

I agree that we need to get the Bill through very quickly, because of its important purpose. However, on consultation, I have taken professional advice from the Consultation Institute, and I declare an interest because I am an associate. Its advice to me, as a professional organisation that works with different Departments, is that consultation will not necessarily delay the Bill and prevent it from being ready before the conference that we are all looking forward to in October.

The Consultation Institute does not believe that it is illegal to move forward without further consultation, but if consultation was necessary, the Government could easily devise a quick consultation of no more than 14 days, by going back to the organisations that have already shown an interest in this matter through responding to the initial consultation. That could be done very quickly; there is no reason to delay the Bill by extending that consultation. The institute would be happy to work with the Department and endorse that consultation formally at the end, so that there would be no challenge. The Government have apparently done short consultations in the past as top-up consultations to something that has already taken place, as a piece of legislation goes through.

[Anna Turley]

I appreciate the helpful explanation of the consultation process, and I completely agree with my hon. Friend. I am quite confused about the point that has been pressed a number of times, that widening the scope slightly to include other animals would delay the Bill’s progress. The Opposition have tabled an amendment, which is being discussed. If we were in a world where we did not amend Bills during a parliamentary process because we had not consulted on the relevant issue from the exact outset, goodness me, hardly any legislation would be amended in this place and we would deal only with what was presented to us at the beginning of the process.

[Sue Hayman]

Clearly, we need to be able to crack on and we must not get too bogged down in consultation. However, we do not want at any stage for this Bill to be able to be challenged. That is very important. There are certain sections of the art market that wish to challenge the Bill. That is why I took that professional advice from the Consultation Institute, so that it would be happy to work with the Department to ensure that there is no opportunity for a legal challenge if another short consultation was held to allow the scope to be extended.

To return to the suggestions of other hon. Members in debates and evidence sessions, the hon. Member for Berwick-upon-Tweed spoke very strongly about the need to extend the scope. She said that this is a “one-off opportunity” to highlight the other mammals that would be affected. My hon. Friend the Member for Bristol East said:

“We know that this will be the only time we have an Ivory Bill before this House for many years to come, so if we are going to try to protect those species, it makes sense for us to do it now, in this Bill.”—[Official Report, 4 June 2018; Vol. 642, c. 105.]

The right hon. Member for North Shropshire, who is a former Environment Secretary, raised an important point on Second Reading. He said:

“The Secretary of State should also be able to include other ivory-bearing species not listed in the CITES appendices”,

an important point made previously by the hon. Member for North Dorset. The right hon. Member for North Shropshire went on:

“As the Born Free Foundation has indicated, there has been an increase in the purchasing of hippo and other non-elephant ivory in the UK to replace elephant ivory in the internal trade. The BFF infers that the legal and illegal trades are targeting these other species, as the Government’s focus is on elephant ivory.”—[Official Report, 4 June 2018; Vol. 642, c. 104.]

It is important to keep the focus on elephant ivory, but we must not lose sight of what else is happening.

Ivory Bill (Third sitting)

Debate between Baroness Hayman of Ullock and Anna Turley

Committee Debate: 3rd sitting: House of Commons
Thursday 14th June 2018 Public Bill Committees

[Sue Hayman]

It may be, as the hon. Gentleman’s previous very kind comments may be. One never knows.

I hope that the Minister will accept the amendment, because it would not change the focus of or detract from anything in the Bill. All it would do is provide clarification, the need for which I thought was universally accepted when we were taking evidence.

[Anna Turley]

I agree with my hon. Friend. Earlier this week, we heard powerful evidence that the sizes are pretty similar, pretty standard. The amendment would cover 90% to 95% of portrait miniatures. The witness we heard went so far as to say that putting this in the Bill was “very sensible”. That is a direct quote, and it is high praise indeed for some of our legislation to be described as sensible. I think that this provision is the way forward. It is very difficult to see any objection to having it in the Bill.

[Sue Hayman]

I thank my hon. Friend for that intervention. She is right: the expert said that this would be a “very sensible” thing to do. I hope that the Minister recognises that the amendment is designed to support the Bill by making it generally more effective and giving owners of items a better understanding of exactly what kind of exemption certificate they should apply for, so that the process can move forward much more smoothly.

Ivory Bill (Fourth sitting)

Debate between Baroness Hayman of Ullock and Anna Turley

Committee Debate: 4th sitting: House of Commons
Thursday 14th June 2018 Public Bill Committees

[Anna Turley]

I rise to speak to new clause 4. I want to express my concern about resources. What we heard in evidence this week gave me serious cause for concern. I was shocked that the CITES Border Force team at Heathrow has only 10 people and that the National Wildlife Crime Unit has only 12 people, given the existing scale of the problem, which I think was 1,000 seizures per year. They will have an awful lot of work to do when the Bill is in force.

This is not the place to make political points, but resources are critical to the Bill’s success and we all know the pressures there have been on police budgets in the current climate. It is therefore imperative that the relevant bodies have the resources they need to enforce this law, for it to have any value whatsoever.

[Sue Hayman]

New clause 4 would establish a record of any item’s provenance. Items to be exempted are, as we know, the most rare and most important of their kind. When such important items are sold, whether privately, individually or through an auction house for museums or galleries, their provenance would tend to move with them so that the purchaser has confidence that the item is genuine and knows who bought it before and where it has been stored or exhibited.

The idea is for the Secretary of State to make arrangements so that persons applying for an exemption certificate under clause 3 or registering an item under clause 10 could associate the item to which the application or registration relates with previous registrations or exemption certificates. Where an exemption certificate has previously been issued in respect of an item or an item has been previously registered and the Secretary of State is satisfied that that is the case, the exemption certificate would also record previous exemption certificates issued and registrations made in respect of that item. In particular, it would include relevant dates so that any certification or registration follows the item. The Minister has made it clear that registration is for the item, not the individual, so it makes sense for the history to move with the item as it goes through any future registrations or exemptions.

On Second Reading, the Secretary of State stressed the importance of ensuring that an item’s provenance can be guaranteed, and that is what the new clause tries to achieve. It would provide security for future owners, who would have full details of an item’s history in this area, as is normal for many items sold or within the art world. It would also helpfully flag up any replacement certification. It may also be helpful in trying to counteract any fraudulent behaviour regarding multiple replacement certificates. If those previous certifications followed the item, it would be very clear if there was a particular item for which a number of replacement certificates were being requested. I ask the Minister to consider the value the new clause could bring to future owners of the items we are talking about.