Ivory Bill

Lord De Mauley Excerpts

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 St John of Bletso (CB)]

My Lords, I support my noble friend Lord Sandwich. I declare an interest as a longstanding trustee of the Tusk Trust, which has not just been looking to address the chronic problem of poachers and dealers but to assist in educating local communities about the importance of ecotourism. In this regard, it is important to consider an impact assessment report, which would help DfID to support local communities in their education efforts. I also agree with the noble Lord, Lord Grantchester, that enforcement is crucial. Without enforcement the Bill would be toothless.

[Lord De Mauley]

My Lords, I am afraid I am going to strike a rather discordant note. I want to focus on Amendments 59 and 60. It is widely accepted that by far the most significant markets for ivory are in the Far East. The Secretary of State acknowledged in his impact assessment that the United Kingdom ivory market has not been linked to the trade in recently poached ivory. There are many other factors at play in the illicit international trade in wildlife that will have a far greater impact on demand for ivory than the trade in antiques here in the United Kingdom.

With respect to the noble Lords who have moved these amendments, I therefore struggle to understand how the requirements proposed in Amendments 59 and 60—to report on the impact of this Bill on the elephant populations in Africa and on the demand for ivory in other countries—would be carried out. How exactly would one attribute to the Bill a change in the demand in Hong Kong for raw ivory, for example?

With respect to the noble Lords who have proposed these reports, there appears to be a premise behind both amendments that the UK’s fairly minimal international trade in objects made from ivory is encouraging the demand for ivory in the countries of the Far East. As I explained on Monday in Committee, if we exclude piano keys, the total number of antiques incorporating ivory exported from the UK to the entire world amounted to 766 items in 2016 and just over 1,000 last year. The exported objects comprise a mixture of both solid ivory carvings and objects that incorporate ivory, such as musical instruments or furniture with inlay. The latter are of no interest to buyers in the Far East. As I have previously said, these numbers are small fry when compared to the volumes of ivory traded in the ivory consumer markets.

I was tempted to support these amendments so that afterwards I could say, “I told you so”, but I do not believe that we should spend taxpayers’ money in that way, especially when I know the answer already. We have to recognise the most significant factor in stopping the trade in poached ivory is not whether the UK is selling antiques or not, but whether the restrictions promised by China and Hong Kong are effectively enforced and whether it is possible to prevent the market from transferring to neighbouring countries in the region.

[Baroness Bakewell of Hardington Mandeville]

My Lords, I support this small group of amendments. As the Minister has said in the past, the Bill has been prepared with great care and knowledge, with one aim and one aim only: to protect the African and Asian elephant. This will be achieved by taking the value out of trading in ivory, prosecuting those who break the law and making the poaching of elephants for their ivory uneconomical. While the fees charged for certification will help to cover some of the costs of setting up the registration and certification process, they will not cover them all at first. It is important that parliamentarians and the public—who, as was clearly demonstrated during Second Reading, care very much about the plight of the elephant—are reassured that sufficient resources have been allocated to enforcement. If the enforcement of the measures set out in the Bill is not properly funded, it is unlikely it will have the desired effect.

We welcome the suggestion of a public awareness campaign to inform potential buyers and sellers of the requirements of the registration system; we recommend that this be done to ensure that robust monitoring and evaluation measures are put in place by the appropriate agencies, and not left to individuals with financial motivations. Guidelines and an honesty-based system will not be enough. Applications will need to be checked.

The annual report to Parliament on the operation of the Act should include information on the number and categories of certified and registered exemptions, civil penalties imposed, criminal prosecutions undertaken and work happening overseas to conserve elephants in which the UK is playing an important role. This amendment could also allow the Government to commission a report from a suitably qualified NGO, utilising official data.

Transparency will be everything in ensuring that the UK becomes a world leader in protecting the elephant. Being able to demonstrate that adequate resources have been allocated to back up our enforcement measures will be key in demonstrating to the rest of the world that we are serious in our efforts. The Government will need to walk the walk and not just talk the talk. As the noble Lord, Lord St John of Bletso, has said, communities which are the subject of poaching will need to be supported to achieve sources of income and to continue economically. I fully support this group of amendments.

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Moved by

[Lord De Mauley]

39: Clause 14, page 9, line 5, at end insert “, such officer to have specific expertise and training in identifying ivory items”

[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.

[Lord De Mauley]

My Lords, I am grateful to my noble friend the Minister. I look forward to his foreshadowed remarks on the next group of amendments and I am happy to consider his remarks after today—so, for today I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

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Moved by

[Lord De Mauley]

51: Clause 22, page 14, line 8, at end insert—
“( ) In respect of a seizure or detention under subsection (2) an officer must take account of the item’s physical nature and must exercise all reasonable care to avoid damage to the item.”

[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.

[Baroness Vere of Norbiton]

My Lords, the first amendment in this group would require police and customs officers to take account of an item’s physical nature and exercise reasonable care when searching premises under the powers in the Bill. I am sure that noble Lords will agree that officers must always have regard to their surroundings and the objects therein when conducting a search and should not wilfully damage anything. Police and customs officers have vast experience of conducting searches in many different types of premises and for a wide range of items—valuable, delicate, dangerous or otherwise. I therefore do not think it necessary to include wording to that effect in the Bill. Indeed, it may be counterproductive. For example, if it is omitted from other Bills in future involving similarly delicate items, will it be assumed that care is not needed in those cases?

The other amendments in this group remove the discretion from police and customs officers to dispose of seized or forfeited items and instead require the Secretary of State to consult an expert in ivory items before making decisions on the disposal of such items. Police forces have well-established processes for dealing with seized property of all types. In the first instance, owners have the opportunity to appeal against a seizure and therefore the item may be returned. But if the seized item cannot be returned to the original owner, there are well-established methods for its disposal.

There are many possible uses for seized items containing ivory that cannot be returned to the original owner. For example, they may be used for educational, training and research purposes, when it is in the public interest to do so. Ivory items seized by police and customs officers in recent years have been used for training officers in the identification of ivory products or donated to accredited museums or to conservation bodies for awareness raising. Zoos, for example, might display examples of illegal wildlife trade products made from endangered species.

I hope that this explanation will be sufficient to satisfy my noble friend and that he will feel able to withdraw his amendment.

[Lord De Mauley]

My Lords, I am grateful to my noble friend for her response. I am pleased to hear of her confidence in the care to be taken by police officers and others. Towards the end, she perhaps answered a question that I had not actually put. Nevertheless, today I am happy to withdraw the amendment.

Amendment 51 withdrawn.