Ivory Bill

Debate between Baroness Jones of Whitchurch and Lord De Mauley

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

[Baroness Jones of Whitchurch (Lab)]

My Lords, Amendment 36 would remove the defence of ignorance for those found to be in breach of the Act. At Second Reading numerous concerns were raised about how unsuspecting members of the public could accidentally flout the ivory ban. There was much discussion about selling an item found in grandma’s attic or at a car boot sale that, unbeknown to them, contained ivory. Of course some of this challenge comes down to publicity and communication. As with all new legislation, there is a need to make the public aware of their new responsibilities, and indeed progress has already been made. As we discussed, the consultation received a record number of responses, which is indicative of public and industry awareness. This will undoubtedly grow when the UK hosts the international Illegal Wildlife Trade Conference, at which the Secretary of State has already made it clear that he intends to highlight this flagship legislation. So really everyone should know the situation regarding the sale of goods containing ivory and understand that it has changed. Meanwhile the National Wildlife Crime Unit will have to focus its scarce resources very carefully. It simply will not have the staff to visit car boot sales on the off-chance of a transgression. As the unit itself has made clear, it will,

“deal with the ones who have a complete disregard for policy protocol legislation … who are deceptive, who lie and who want to make money out of this”.

While we understand the principle behind this subsection, we believe that genuine accidental transgressions of this type can be dealt with lightly through an enforcement undertaking with no monetary penalty, and that this provision is therefore unnecessary. We are concerned that unscrupulous traders could exploit this loophole so that they could continue to deal in ivory with impunity, only to feign ignorance if they are caught. We know that new elephant ivory is offered for sale and is often mislabelled as antique ivory, ivory from other species or other material altogether, such as bone. In some instances this may have been due to genuine unawareness, although deliberately mislabelling it is a well-known tactic in the illegal ivory trade. For the ban to be effective, it is imperative that any exemptions are narrowly defined and that breaches can and will be enforced. That is why we believe the defence of ignorance would undermine the intention and effectiveness of the Bill. I hope noble Lords understand the point that I am making and will support this view. I beg to move.

[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 will also speak to Amendments 52, 54, 56, 57 and 58 in this group. Many antiques, regardless of the materials used in their construction, can be fragile and need to be handled with care. For example, ivory is sometimes incorporated into bronze sculptures. To the uninitiated, bronze may seem a strong material, capable of withstanding a gentle knock or two. However, one important feature of bronze sculptures is the patina of their surface. Application of a sticky label in the wrong way or allowing a metal watchstrap to rub against the surface could damage it, destroying the sculpture’s integrity and thus reducing its value. Antique dealers spend a fortune purchasing professional packing services when moving or shipping antiques and the handling of antiques is a specialist skill in its own right.

A badly informed officer, believing that he is seizing an ivory item that breaches the provisions of the Bill, may treat the item casually, even before it has been properly assessed by someone with knowledge and understanding of antiques. Ivory in particular can be brittle and will not take kindly to rough handling. What we need to avoid is antiques being seized, subsequently found to be compliant and then returned damaged to their owners. This amendment is intended to place an obligation on officers to take extra care when handling the antiques that they have seized.

On Amendments 52 and 54, as drafted Clause 29 allows not just the Secretary of State but also police officers and accredited civilian officers to decide the fate of cultural property that has been seized. The factors that need to be considered in disposing of a cultural artefact differ greatly from those that apply to endangered species that do not also possess cultural and historical attributes. A seized item may well be an object of cultural significance that a museum may wish to acquire and, consequently, a decision about its future should involve the input of people possessing specialist knowledge of objects of the same type. This is knowledge that police officers and accredited civilian officers will not have. For this reason, the amendments would limit the decision about the fate of seized objects to the Secretary of State alone and require him or her to take the advice of someone who is able to provide specialist advice, such as a museum curator or art market professional.

I turn finally to Amendments 56, 57 and 58. The aim of amending Clause 31 is similar to that of amending Clause 29. In this case, it concerns the people who are granted the power to decide the fate of previously seized objects where the person entitled to the object cannot be traced. At present this power is granted to a police or customs officer, as well as the Secretary of State. For the reasons that I referred to on Clause 29, the decision should be limited to the Secretary of State alone and be taken on the advice of someone familiar with the type of ivory object whose return has been attempted. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, I will make just a few brief comments in response to the noble Lord’s amendments, which seem in the main unnecessary. First, it is self-evident that the officers would take care to avoid damaging seized items. This would apply equally to the process of seizing other high-value goods including stolen artworks, with which they would be familiar. I am not convinced that the need for that level of care needs to spelled out in the Bill, given they have that specialist training.

Secondly, we have already addressed the concern about the role of accredited civilian officers, but it does not seem practical or sensible that the only person able to determine how a piece should be disposed of should be the Secretary of State. Thirdly, as we discussed earlier, we would expect a decision to dispose of an item to be taken with guidance from individuals with clear expertise in this area. Again, we are not convinced this needs to be in the Bill. I look forward to hearing the Minister’s undertaking on how these disposals will work in practice and hope that he will be able to reassure his noble friend that these amendments are not necessary.

Ivory Bill

Debate between Baroness Jones of Whitchurch and Lord De Mauley

Committee: 1st sitting (Hansard): House of Lords
Monday 10th September 2018 Lords Chamber

[Lord De Mauley]

As noble Lords have heard, despite a ban on international trade in ivory, tens of thousands of elephants are killed each year for their tusks. It is a tragedy and every respected antique dealer would wholeheartedly agree that everything possible must be done to bear down on it. Having in an earlier phase of my life been the Minister responsible for the UK’s efforts to bear down on illegal wildlife trafficking, I now find myself as chairman of LAPADA, the art and antique dealers’ trade association and, as such, declare an interest. Although my remarks represent my own views, they are informed by what I have learned in that capacity, as well as that of a former Minister.

As with countless other businesses today, antiques are marketed and promoted online and professional antique dealers increasingly use the internet to sell antiques and works of art. Amendment 4 would be extremely unfair on some who may deal with exempt ivory. Furthermore, it is not necessary to give effect to the Bill. In addition, to underline the fact that it is unnecessary, I point out the inconsistency of exempting musical instruments from these restrictions. I take it that anyone advertising an item online who has been granted an exemption certificate, or who has registered the item under the Clause 10 provisions, would be advised to indicate the existence of the certificate or registration as part of their promotional material.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this issue today. We touched upon it at Second Reading and noble Lords have referred to the letter from the Minister that we received in response to that. The noble Lord will know that we have considerable sympathy with the arguments that he has put forward this afternoon. The online sale of items containing ivory is undoubtedly the most difficult market to police. The Committee has already heard that the worst violations of existing restrictions take place online. It is a global trade, using global communications. As the noble Lord said, the poachers and middlemen have sophisticated communication networks, including codes and jargon to conceal the real nature of the goods being traded. This is happening globally, across borders. This is why, ultimately, we need a global response to close these markets down. It is an area for the UK Government alone to be effective in doing this.

We also know that, as the noble Lord said, we have limited resources to police these sales. This issue is covered in amendments to the Bill which we will come to later. I also like to think that the measures already in the Bill and the additional amendments we propose would at least bring the legitimate UK online trade under control. The requirement for exemption certificates; the need for registration and photographs; the oversight of professional institutions; the removal of the defence of ignorance for buyers and sellers and the tightening up of enforcement should help to deliver more watertight controls. I understand the argument about proportionality and we need to bear it in mind quite sensitively.

Although I am sympathetic to the noble Lord, I wonder if, at this time, we should let the current proposals run and then use the reviews we are proposing in later amendments to the Bill—for example, working with the National Wildlife Crime Unit and border police—to assess how effective the Bill has been. That would give us the opportunity to look at whether we still have an online problem. The onus is on the Minister to reassure the Committee that this is going to be effective in tackling online trade. Otherwise, the whole Bill will be effectively undermined if all the trade moves towards there.

I would like to think that the checks and balances are there. It may be that we have been proved wrong. I would like to hear more from the National Wildlife Crime Unit about whether it thinks it can manage within the existing constraints. If it feels it can do it, albeit it will probably need some extra resources—we are all well aware of that—then I am inclined to take it on trust at this moment. However, it is certainly an important issue to get right.

Ivory Bill

Debate between Baroness Jones of Whitchurch and Lord De Mauley

Monday 10th September 2018 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am moving Amendment 14, on the subject of replacement certificates, because we believe that more safeguards are needed, since the Bill would allow multiple certificates to be issued for a particular item, and these could then be used to sell similar items illegally. We feel strongly that no loopholes should be allowed and that nothing in the Bill could result in unscrupulous dealers misusing these certificates. Given that the point of the Bill is to stop illegal ivory trading, and that—as we have discussed —unscrupulous people will exploit loopholes, it is important that these rules are extremely tight.

When this was discussed in the other place, the Minister made the point that because exemption certificates would apply only to unique peices—and therefore a limited number—there was an exceedingly low risk that a certificate, which will include a photograph, could be used fraudulently for another item. So far, so good, but this does not protect against the production of replicas, so we could end up with something that looks very similar to the photograph but is not the original item: you would have a replica item with a duplicate certificate.

Although such activity would of course be an offence under the Fraud Act 2006, and subject to criminal sanctions or a custodial sentence, this may well not deter those involved in the illegal ivory trade, where we know that millions of imitation antique pieces are already floating around and making very high profits.

This is really just a probing amendment to learn from the Minister how this will work in practice and whether he can provide reassurance that there are sufficient safeguards built into the system of issuing replacement certificates to prevent fraudulent duplication of them. I beg to move the amendment.

[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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[Baroness Jones of Whitchurch]

As drafted, the Bill allows an infinite number of appeals. This concern was raised specifically by the David Shepherd Wildlife Foundation, which argued the case for deleting the unprecedented and unnecessary appeals provision. That is what we have tried to do with this amendment.

The amendment would streamline the appeals provisions for sales exemptions for items of outstanding artistic or cultural value. It would permit applicants a formal right of appeal against the original decision to reject an application only once. If the appeal was unsuccessful, the applicant would be able to make a fresh application, and pay the appropriate fee, if they wished an item to be considered again.

The cost of an application fee is intended to be cost neutral. However, under the current provision, if an individual refused to accept the decision that an item does not qualify for an exemption, they could effectively frustrate the appeals process with successive appeals, each of which would require detailed consideration and a response. If a number of people submitted repeated appeals, that would inevitably have implications for resources and could have a detrimental impact on other activities, including enforcement of the regime. We believe that limiting the right to appeal against a decision to only once is sufficient to protect individuals’ property rights. There are many examples across government where decisions on applications can be appealed only once, including visa applications and school places. I am sure that there are many more. Furthermore, this would avoid establishing a new precedent under UK law that would introduce a convoluted formal appeal process for what is in effect a specialised form of wildlife trade licensing.

There is no appeal system for any other wildlife trade licence issued in the UK, including those under CITES, let alone anything wider than that. We therefore hope that the Committee will feel able to support our amendment.

I have a quick comment on Amendment 16 in this group. On the face of it, I do not have a problem with this amendment. I would have thought that it made sense for appeals to be heard by someone with expertise, and it may be that the Minister is able to reassure noble Lords on this issue so that they do not feel it necessary to pursue the amendment. I beg to move.

[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.

Ivory Bill

Debate between Baroness Jones of Whitchurch and Lord De Mauley

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 10th September 2018 Lords Chamber

[Baroness Jones of Whitchurch]

My Lords, this proposed new clause would allow the Secretary of State to create a verification system to enable a person intending to purchase an item containing ivory to check that it has been registered as exempt or has an exemption certificate. That is imperative to ensure that the exemption process is robust and deliverable. Defra has stated that:

“The compliance processes will enable sellers to demonstrate that their items meet the relevant exemption, and thus that their use in commercial dealing is permitted under the Bill. The processes will also enable potential purchasers to assure themselves that they are acting in accordance with the ban”.


The term “assure themselves” is interesting and seems to indicate that a buyer has less responsibility to ensure compliance with the ban than a seller. Given that the definition of dealing in Clause 1 specifically includes buying ivory, we believe that a trustworthy system needs to be available so that buyers can ensure that they are complying with the law.

There are many reasons why a buyer may need to verify that an item is exempt; for example, when purchasing an item online. A buyer may not even be aware of what a legitimate exemption certificate should look like and may seek the reassurance of an independent confirmation. We are also aware of cases involving legal CITES Article 10 certificates and fraudulent copies being used to conceal illegal ivory. Sadly, unscrupulous dealers may well attempt to contravene the ban though such tactics. At the same time, an added advantage would be that a failed verification check could bring an individual to the notice of the authorities and be used to support a prosecution.

I hope that noble Lords will see the sense of the proposals we are making today, and that the Minister will feel able to take this proposal away and come back with suggestions as to how a robust verification process could be implemented. Of course, key to that will be the infamous IT system, when it is in force, and the issue of data, data protection and access. I realise that there are more complications to this than I am suggesting, but we feel nevertheless that buyers should have the right to make those checks and I therefore beg to move.

[Lord De Mauley]

My Lords, I think that this is a most sensible suggestion. The definition of “dealing” includes buying ivory objects, so how else is a buyer to avoid breaking the law, unless they have a means of verifying either that a de minimis object has been registered, or that an exemption certificate has been issued for an outstanding one?