Ivory Bill

Lord Gardiner of Kimble Excerpts

2nd reading (Hansard): House of Lords
Tuesday 17th July 2018 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the Bill be now read a second time.

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

My Lords, I should declare at this juncture that I have a small number of ivory objects, which I was given many years ago and have no intention of selling.

The legislation has a vital purpose: this country will play its part in helping to save the elephant from extinction. We are showing leadership—the ban on the sale of elephant ivory objects of all ages, with only limited exemptions, will be the strongest in Europe and among the strongest in the world.

The numbers are stark. About 20,000 elephants are killed for their tusks every year—that is around 55 each day. To put these figures into context, since 2006, the total number of elephants in Africa has decreased by some 21%, with numbers of savannah elephants declining by 30%—equal to 144,000 elephants—between 2007 and 2014 alone.

The human cost is real too, with over 100 rangers dying in one year between July 2016 and 2017. UN reports recognise the link between wildlife and arms trafficking in central Africa, with illegal wildlife trade—IWT—helping to finance armed groups, including the Lord’s Resistance Army. Environmental crime, which includes IWT, is the fifth most lucrative serious organised crime. IWT alone is worth up to £17 billion per annum, fuelling corruption and instability, and devastating animal populations.

That elephants now face the prospect of being wiped out by criminality and, I am afraid, by plain avarice, is simply unacceptable. But such a tragedy is not inevitable. We have an opportunity, and a duty, to be part of international efforts to change this course. In 2014, we hosted the London Conference on Illegal Wildlife Trade, where the UK secured ambitious agreements from more than 40 Governments and the EU to take urgent, co-ordinated action to combat IWT. I pay tribute to my noble friend Lord Hague of Richmond for his pivotal role in this.

Since then, an even clearer international consensus recognises that IWT is a global crisis in need of global solutions. In April this year, the 2018 G7 communiqué committed members,

“to working together to strengthen … law enforcement and tackle associated corruption”,

and closing illegal demand markets, “including elephant ivory”.

We know that the illegal wildlife trade must be tackled by sustained action across many fronts. Indeed, the UK has committed £26 million on efforts to combat IWT, including supporting 61 projects around the world under the IWT Challenge Fund. We are training anti-poaching African park rangers and sharing Border Force expertise in key demand states, such as Vietnam. We are providing funding to Interpol and the International Consortium on Combating Wildlife Crime to support their global enforcement operations. We are supporting projects to provide alternative sources of income to local communities in key poaching areas, and to identify and disrupt illicit financial flows linked to IWT.

While this is indeed a global crisis, the effects are felt most acutely in some of the world’s most vulnerable communities, particularly in Africa. IWT not only helps to drive corruption and undermine the rule of law, but has a crippling effect on nascent wildlife tourism and other opportunities for sustainable development.

African states cannot, and should not, be left to tackle IWT in isolation. They have called on the international community to help, and to recognise that this includes closing down markets which help to fuel poaching. In March this year, the Presidents of Botswana, Gabon and Uganda joined 29 other African elephant range states in signing a petition to urge the EU to close its ivory markets. The United States and China have already closed theirs; Hong Kong and Taiwan, two critical demand markets, are in the process of doing so. All recognise that reducing demand is a critical part of a comprehensive response to the crisis.

The government consultation on ivory received over 70,000 individual responses, of which the overwhelming majority—some 88%—favoured an ivory ban. We have worked extensively with conservation NGOs, the arts and antiques sector, and the musician and museum sectors to help shape this Bill. Your Lordships will be aware that there are already restrictions on the trade in post-1990 ivory under the Convention on International Trade in Endangered Species—CITES. The EU has gone further in banning the export of raw ivory. We need to go further. Elephants are still being poached and killed for their ivory at unsustainable rates. Record quantities were illegally traded in 2016.

The UK has a world-renowned arts and antiques sector and one of the world’s largest markets for antique ivory. Under existing legal restrictions, in the UK only items of, or containing, ivory which have been worked before 1947 can be sold without a permit. But it is extremely difficult to differentiate legal from illegal ivory, meaning that legal markets can be used to “launder” new ivory sourced from recently killed elephants. Indeed, UK Border Force has seized many ivory items that had been artificially aged, often through such crude but effective means as staining them with tea.

The UK is one of the largest suppliers of “legal” ivory items to the world’s ivory markets. The majority of this goes to east Asia, where demand is the highest. According to TRAFFIC—the wildlife trade monitoring network founded by the International Union for Conservation of Nature and WWF—between 2005 and 2009 the number of ivory items exported from the UK to mainland China was 2,000. Between 2010 and 2014, that number had increased to about 11,000. In 2010 a UN Office on Drugs and Crime report concluded that,

“the trade in illicit ivory is only lucrative because there is a parallel licit supply, and ivory can be sold and used openly. Ivory would lose much of its marketability if buying it were unequivocally an illegal act, or if ownership of these status goods had to be concealed”.

This is not about casting judgment on those, including previous generations, who may have been ignorant of the destructive impact of the ivory trade, but it is a clear-sighted assessment of the facts as we find them: the rise in demand for ivory in east Asia; the increasingly organised nature of poaching operations; and the catastrophic impact on animal populations and vulnerable communities. We simply cannot claim to be ignorant any more. We can act and we must.

The Ivory Bill will introduce a total ban, with narrow and limited exemptions, on commercial activities involving ivory in the UK that could be directly or indirectly fuelling the poaching of elephants. By closing the UK ivory market to all items containing ivory, except those that meet narrow exemptions, we will remove the financial value from ivory, reduce the opportunity for new ivory to be laundered through legal markets, significantly reduce the flow of ivory from the UK to overseas markets, and encourage other countries to take similar actions. The Bill will not affect the ownership, inheriting, donating or bequeathing of ivory items where this is currently allowed.

The exemptions are as follows: de minimis—items with an ivory volume of less than 10% and which were made prior to 1947; musical instruments with an ivory content of less than 20% and which were made prior to 1975; picture portrait miniatures produced prior to 1918, with a maximum surface area of 320 square centimetres; and items which are the rarest and most important of their type. This covers pieces made of, or containing, ivory produced prior to 1918 that are assessed by an independent advisory institution as of outstandingly high artistic, cultural or historical value.

The fifth category of exemptions covers museums: specifically, commercial activities, including sales, loans and exchanges to, and between, government-accredited museums—that is, museums which meet the strict accreditation criteria of Arts Council England or equivalent bodies in the devolved Administrations. There is no intention for this ban to affect the display of historic, artistic and cultural items to members of the public by accredited museums.

The Government have created a compliance and enforcement regime which is both robust and proportionate. Owners will have to register their item before they can sell it. Ivory owners will need to confirm that the item falls within the scope of a particular exemption. They will need to confirm, for example, that the item has less than 10% ivory by volume and was made before 1947. This will mean that owners need to consider carefully whether the item is exempt before it can be sold. This will also make enforcement of the ban easier, as it will be an offence to sell an unregistered item. This will not be unduly bureaucratic or burdensome: we are developing a new IT system to facilitate the process. This register will ensure security for both the buyer and seller.

It will be an offence to breach the ban on commercial dealing in ivory items. This offence can be committed in three distinct ways: by breaching the ban directly; by causing the ban to be breached; or by facilitating a breach of the ban. It is a defence to show that one took all reasonable precautions and exercised all due diligence to avoid committing the offence. Any ban is only as strong as its enforcement. Breaches will be liable to either civil or criminal penalties, meaning that enforcement bodies will have the flexibility to apply the most appropriate penalty, depending on the severity of the offence. Criminal sanctions for failing to adhere to the ban will be entirely consistent with existing offences concerning ivory under the Control of Trade in Endangered Species Regulations. Those found guilty of a criminal offence under these measures may be liable to an unlimited fine and/or a maximum prison sentence of up to five years. Civil sanctions will consist of stop notices, monetary penalties, enforcement under- takings and enforcement cost recovery notices. The Office for Product Safety and Standards, which is part of the Department for Business, Energy and Industrial Strategy, will be responsible for ensuring compliance, investigating breaches and issuing civil sanctions; the police will be responsible for criminal sanctions.

The Ivory Bill is a proportionate response to curtail the demand for ivory, in our continued fight to save the elephant from slaughter in the wild. Our country is showing leadership, in a co-ordinated international response to the crisis. In October, we will host the fourth IWT conference, once again convening international partners to urge further decisive action. The Ivory Bill has a critical role to play. The nations with most at stake have sought our help. The Bill will help protect elephants of the present and future. That is surely our generation’s responsibility. If we do not tackle this, we will lose the elephant in the wild. That would be an abdication of our duty to the natural world and I believe that future generations would rightly ask, “How on earth did you let this happen?” I beg to move.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, this has been an exceptional debate and we have heard from noble Lords with direct knowledge of events in Africa where the elephant is being slaughtered in unsustainable numbers. I want in particular to pay tribute to my noble friends Lady Chalker of Wallasey and Lord Hague of Richmond, who have been so instrumental in doing a great deal for the interests of communities in Africa. I pay tribute also to the noble Lord, Lord Clement-Jones, on his experiences. I do so because I believe strongly that if our generation does not act now, it will be too late. I should also say, given the many questions put to me and the many notes I have received, that your Lordships would be sitting for a very long time if I were to answer every single question. A comprehensive reply to all the comments that have been made will of course follow this debate. I have the answers to almost all the points but, in the time available, it will not be possible to do them justice.

I shall turn immediately to an issue raised by a number of noble Lords, which is that of heritage in terms of natural heritage, as outlined by the noble Baroness, Lady Flather, in relating her experiences of the elephant, and indeed how we would rob some of the world’s poorest communities of their natural resources and deprive us and future generations of this extraordinarily inspirational creature. I am also most grateful to the noble Baroness, Lady Jones of Whitchurch, for expressing her support for government initiatives, a number of which were referred to by my noble friend Lady Fookes. Through the IWT Challenge Fund, we have been supporting projects around the world to engage local communities in conservation, to enhance human/wildlife coexistence, and to strengthen community involvement in helping to tackle crime. These are the communities that are being impoverished by this trade, and it is others around the world who are enriched by it. I was also struck by what my noble friend Lady Rawlings said about the British effort, and obviously I am really pleased that our gallant forces in the military have been helping in Gabon and Malawi to deal with poachers.

As I mentioned earlier—and as the noble Lord, Lord Clement-Jones, will know through his close association with the Giants Club—the summit held in Botswana in March this year reflected the unity among the political leaders of the four countries that hold half of Africa’s remaining elephants. At that summit, the Presidents of those four countries signed a petition that called on the EU and by extension its member states to shut down their domestic markets, end all ivory exports and support efforts to ban the global ivory trade. They join 28 other African nations as signatories to the petition. That is an extraordinary request from the continent of Africa where these wonderful creatures are, and we must respond.

A number of points were made about other species. I want to deal with those immediately by saying that it is absolutely the Government’s intention to launch a consultation seeking views and evidence for extending the definition of ivory on or as soon as practicable following Royal Assent to the Bill. There are reasons for that. We have already taken a power in the Bill to allow the Secretary of State to extend it to cover other ivory-bearing species through regulation, and the power taken extends from applying only to ivory-bearing species listed under CITES to any ivory-bearing species. Obviously the noble Baroness, Lady Jones, and I can exchange legal opinion, but in the end it will be the Secretary of State and this Minister who will have to sign the certificate, which as noble Lords know is part of our ministerial responsibilities. The legal advice we have is that we must consult, and we will do that as soon as possible. However, I am happy to have sight of any legal opinion referred to by the noble Baroness, but that is the legal advice we have received, and in the end it is for Ministers of the Government to sign the certificate as a matter of compliance, as one would expect.

A number of issues were raised about the ban and the country’s place in it. I was very struck by my noble friend Lord Hague’s reference to China, saying “Well, when are you going to do something about this?” Indeed, it is important to know that whatever noble Lords may say, ivory will not be a symbol of luxury anymore. We have sought a balance between absolutely curtailing and snuffing out demand, and having the exemptions that we have decided are proportionate. However, the balance in this legislation will always be that living creatures are the most important priority.

I am very glad that my noble friends Lady Rawlings and Lord Crathorne spoke about the exemptions and the rationale. I assure your Lordships, particularly my noble friends—and they are my noble friends—who have expressed the concerns of the antique trade, museums and musicians, that we have had considerable discussions with those sectors. If time permits, I will read out some of the quotes that we have had from the antique sector and musicians, who expressed some surprise that we have reached such exemptions and that the conservation NGOs think that they are proportionate. Indeed, they have expressed surprise; they thought that they were in a position where they can manage the situation.

I say to my noble friends that getting this right is our priority, but we have this Bill because of the slaughter of an animal that will be extinct in the wild unless we do something demonstrable. Neither I nor the noble Baroness, Lady Jones of Whitchurch, is saying that there is a connection. As I said in my opening remarks, to which my noble friend Lord Hague of Richmond referred, a UN Office on Drugs and Crime report made it absolutely clear that,

“the trade in illicit ivory is only lucrative because there is a parallel licit supply”.

That is the challenge we must take on with the demand for ivory, particularly in east Asia. The figures that I have expressed to your Lordships show that the amount of ivory going from this country to Asia has been increasing, not decreasing. We need to deal with that. I want to make it very clear that we have sought a balance that we think is proportionate. I will be very pleased, both in writing and in further stages of the Bill, to explain our rationale.

We had 70,000 responses from individuals and even more from campaigning organisations. The strong message was that we should have a comprehensive ban. We thought that having these exemptions was proportionate because we were persuaded that they would not fuel the demand that we must snuff out. As we have said, it is clear that the restrictions go beyond the CITES requirements on restrictions for post-1990 ivory. We have also gone further than the EU precisely because our lead is being looked at by other countries. This is not about some sort of gesture; it is about leadership and saying that this trade must stop. We must do everything we can to stop it. I am clear that we have been, and will remain, resolute. I understand that the function of this House is to scrutinise and improve, but we have sought to do what we can to find the right balance in these matters.

A number of noble Lords made points about online issues. I want to make it absolutely clear that this legislation takes enforcement extremely seriously. We intend the Animal and Plant Health Agency, the Office for Product Safety and Standards and the police to have access to registration systems, take spot-checks of registrations and carry out any necessary enforcement action. This will be clearly online as well. We want to ensure that the offence of facilitating a breach of the sales ban is specifically designed to capture online sales fora and, for instance, the use of traditional media, such as newspapers. Furthermore, Clause 34 ensures that we can charge a particular person within a corporation responsible for a breach so people cannot hide behind their company.

There was another point made by the noble Lord, Lord Grantchester, and my noble friend Lord Selkirk. I have seen the programmes that my noble friend’s kinsman, and his daughter Saba Douglas-Hamilton, have produced. We owe them a profound debt of gratitude for what they have done to highlight the nature of elephants and how we can better protect them.

We also need to take the opportunity to acknowledge the people who have died because of seeking to prohibit the poachers from doing their dreadful deeds. Let us remember that, when we are talking about these objects, we are talking about human beings and animals that have died because of this, and I think that is the perspective in which we should look at it.

Clearly, we do not want to make unnecessarily draconian pieces of legislation; that is why the defence of ignorance is there to be proportionate so that the standards used determine whether someone has acted reasonably, and it will clearly depend on the circumstances of the accused.

Also, we want to make it clear—I paraphrase because my notes are not quite in order—that the whole point about having civil and criminal sanctions is precisely because we realise this is a new piece of legislation, and we understand that there will be different elements of criminality in terms of the sorts of gangs, organised crime, and billions that are involved. Regarding the amount of the fine that my noble friend Lord De Mauley referred to and the five years that my noble friend Lord Crathorne talked about, this is not about the person who has, by some mistake and completely with ignorance, sought to put a piece on the market. This is precisely because we need to get at the organised gangs who, in the end, want to receive the ivory from wherever it may be. This is why we have sought in our package—and, yes, it is a package and it is a balance—to make sure that civil sanctions and criminal penalties are done properly through the police, where that is required.

I say to my noble friend Lord Inglewood and the noble Earl, Lord Kinnoull, that I am absolutely seized of the fact that we want the registration system to be as bureaucracy-free and straightforward as possible. That is why we were working on an IT system that will not be burdensome and that—as it is based on a cost-recovery basis—is intended to be small. We want to have this non-bureaucratic system. We will also run an awareness campaign to ensure that potential buyers and sellers understand what is required. Again, this is intended to give safety and security to the seller and the buyer. That is the whole purpose. We are absolutely clear that the purpose of this legislation is to stop the demand in ivory, with certain exemptions. That is why it will be rigorous, but the registration for the first three exemptions will be through means which we think are not bureaucratic or burdensome. I shall write to my noble friend Lord Crathorne on his queries. However, I should say now that there are distinct reasons for the particular dates that we chose. It is 2018 now, so we thought that 100 years ago—1918—was a suitable choice.

The noble Lord, Lord St John of Bletso, referred to a guide to the Bill’s application. The Government will publish guidance on various aspects of the Bill to ensure it is implemented effectively. My noble friend Lord Selkirk asked whether enforcement will be adequate and exemptions not exploited. We will ensure that they are robust—they have to be, because that will underpin the success and effectiveness of the ban. I give credit to the police, the National Wildlife Crime Unit and the Border Force for what they have done to date in tackling this abhorrent crime. Our proposals will go further than the current regime. We will also nominate a regulator to enforce this ban, alongside the police and Border Force.

The noble Lord, Lord Clement-Jones, asked about the rarest and most important items. We intend this to be applied on a narrow strata of items considered, on the advice of expert assessors, to be of outstandingly high artistic, cultural and historical value. I agree with my noble friend Lord Crathorne that this is subjective but that is why we are asking experts to do that exemption, which we think is valid and is the right way forward. We did not think that a total ban was the right thing for these objects. We reached that position because we thought that this was a sensible arrangement. We therefore will be looking to experts to help us.

There were a number of questions about music and musicians. Owners of instruments containing ivory will need to register their instruments only if they wish to sell them or to engage in other commercial activities, such as hiring them out. Musicians wishing to take their instruments overseas for concert tours will not require registration, but must adhere to existing CITES regulations. My officials have received a copy of the Musicians’ Union briefings and will be happy to respond in writing or to meet it. The noble Lord, Lord Berkeley of Knighton, mentioned Professor Jonathan Freeman-Attwood. I have to declare an interest in that he played at my wedding, so I know the professor rather well. But regarding this exemption, Paul McManus of the Music Industries Association has said,

“we are extraordinarily grateful that this exemption has been considered at all”.—[Official Report, Commons, Ivory Bill Committee, 12/6/18; col. 49.]

We have gone as far as we can.

I am obviously very clear and conscious of what the noble Baroness, Lady Quin, said about the Northumbrian pipes. I agree with the noble Baroness, Lady Jones of Whitchurch. I would obviously always be happy to see the noble Baroness, Lady Quin, but we have these exemptions and we have got as far as we have with them. I will obviously meet her but we have had to find some definitions for these exemptions.

[Baroness Quin]

I hope that the Minister will at least listen to representations from the pipers but, to reinforce the statement that I made, they bought their instruments not because of ivory but because they were good to play. In that sense, it is not the same as people buying objects because they think that ivory is valuable.

[Lord Gardiner of Kimble]

Yes, I understand the noble Baroness’s point. I think that I have explained the position that we are in, but I will of course meet with her.

The noble Earl, Lord Kinnoull, referred to museums. Accredited museums will be exempt from the ban. This will allow them to purchase, loan or exchange ivory items. I am also happy to meet him to discuss insurance.

A number of noble Lords mentioned funding, including the noble Lord, Lord Grantchester. We wholly believe that the regulator and law enforcement agencies need sufficient funding to tackle wildlife crime. Defra will consider longer-term funding as part of the normal spending review process over the coming year. The noble Lord, Lord Clement-Jones, asked whether the agencies have sufficient powers under the Customs and Excise Act and the Proceeds of Crime Act. The Bill does not change the scope or reach of the legislation conferring powers for the purpose of customs checks on international trade and divesting criminals of the proceeds of crime. These powers are available, where applicable, against unlawful dealings in ivory items.

My noble friend Lord Lingfield mentioned the process for rarest and most important items—RMI, as I will describe it. We are working with experts at a number of institutions and have no expectation that this process will take a long time. My noble friend Lord Carrington of Fulham expressed concern about high registration fees. We do not intend these to be on anything other than a cost-recovery basis. My noble friends Lord Crathorne and Lord Carrington referred to museum quality. Yes, I agree that it is subjective but we have been working to get the advice of the country’s foremost experts, so I hope my noble friend Lord Cormack and others will see that we are sincerely trying to ensure that all these items are within the exemption, as they should be.

My noble friends Lord Attlee and Lord Carrington asked about inheritance tax and my noble friend Lady Rawlings referred to other taxation. Once the ban comes into force, prohibited items will be subject to nil value for inheritance tax purposes. Items subject to exemptions will still have a market value and may therefore be subject to inheritance tax. Indeed, we are aware that there may be a loss to the Exchequer, but we believe that the objects of this legislation far outweigh that loss.

A number of points were made about enforcement powers. I would be very happy to meet my noble friend Lord Inglewood, because there are points that I would like to discuss with him. On more spending on conservation, I have already mentioned it in another regard, but my noble friend Lady Chalker and the noble Lord, Lord St John of Bletso, raised this. We are doing more, but I will write on that.

I have sought to refer to all questions, but I will write more fully. My noble friend the Whip will not be pleased with me, but I am most grateful for all contributions. I will study Hansard very carefully and will write fully, but at this stage I ask noble Lords to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.