Ivory Bill

Lord Gardiner of Kimble Excerpts

Monday 10th September 2018 Lords Chamber

[Lord De Mauley (Con)]

My Lords, Clause 2 currently leaves to the Secretary of State the choice of bodies that will perform the task of authorising the issue of exemption certificates. However, it is imperative that the Secretary of State appoints bodies that represent specialists who know their subjects and have expertise in their field. This amendment will require the Secretary of State to appoint only institutions which have expertise in objects that contain ivory. The incorporation of this requirement would also protect the Secretary of State from an accusation that he has appointed an inappropriate body. I beg to move.

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

My Lords, my noble friend’s amendment seeks to define the type of institution the Secretary of State can prescribe to provide advice under Clause 2, and I hope to reassure my noble friend that this will not be required.

Subsection (5) confers a delegated power for the Secretary of State to prescribe a list of advisory institutions. Any assessment of an item’s artistic, cultural or historical value is to a degree subjective. This is why the Secretary of State will seek the advice of the country’s foremost experts in different forms of ivory items, from the UK’s most prestigious museums. Indeed, eminent institutions such as the Victoria and Albert Museum and the British Museum, which have world-renowned expertise in areas and periods of artistic history relevant to ivory artefacts, have already confirmed that they would like to be involved. These institutions provide advice to government on matters of pre-eminence and national importance, for instance under the export licensing regime for cultural objects. They will also be required to ensure that their best-qualified experts are engaged to assess the items.

If needed, the Secretary of State may, over time, update regulations prescribing advisory institutions if, for example, a source of expertise moves from an institution or a new centre of expertise emerges. Under no circumstances would we prescribe an institution which did not hold the relevant expertise. I hope that with that reassurance about expertise my noble friend will withdraw his amendment.

[Lord De Mauley]

My Lords, I thank my noble friend. What he has said sounds helpful. I will give his response consideration before Report, so for today I beg leave to withdraw the amendment.

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[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.

[Baroness Jones of Whitchurch]

I thank the Minister and the noble Lord, Lord De Mauley, for those comments. I am grateful for the Minister’s reassurance. The situation that we envisaged is that there would be more than one certificate and more than one item that looked similar in the market. There would then be the problem of identifying which was the original and which was the fake. As we develop our exemption certificate regime, I can imagine that they will have some kudos abroad. They will not just be used for enforcement under our regime but could give some additional value to properties that are traded in other countries as proof of the item being of the highest quality and so forth. I would like to look a little more at the Minister’s comments, but I will not pursue this any further today so I beg leave to withdraw the amendment.

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[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.

[Lord Gardiner of Kimble]

My Lords, I thank the noble Baroness for her amendment, which would prevent a person applying for a Clause 5 appeal more than once. As drafted, the Bill will allow applicants to appeal a decision either to revoke or refuse the issuing of an exemption certificate for a pre-1918 ivory item that is a rare and important example of its type, so that it can be protected by an exemption. Clause 5 will enable the details of the grounds to be set out in secondary legislation. Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee has questioned this approach and recommended that more details should be set out in the Bill. We are grateful to the Committee for its consideration of the Bill. We are carefully considering its recommendations and will respond in due course and, if necessary, seek to amend the Bill on Report.

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Amendments 20, 29 and 32 would remove the requirement to register pre-1947 items with de minimis content. As I have already expressed, I contend that this would unnecessarily extend the exemption and potentially greatly increase the volume of ivory on sale. If the item is valued, it should be registered.

[Lord Gardiner of Kimble]

My Lords, these amendments relate to exemptions. As I said previously, this part of the Bill has involved close consultation and dialogue with all interested parties.

A considerable number of amendments are in this group. That in the name of my noble friend Lord Cormack would remove the size qualification, set at 320 square centimetres, from the portrait miniatures exemption. As the noble Lord, Lord Grantchester, said, this exemption came out of the consultation and formed a further exemption that perhaps had not been identified before.

During the House of Commons evidence session, an expert on portrait miniatures gave evidence on how the exemption for portrait miniatures could be refined by the addition of a size limit. It is important to ensure in legislation that we have as much precision and certainty as possible. The evidence provided to the committee suggested that a size limit of six inches by eight inches for portrait miniatures would be very sensible, as it would cover the vast majority—I say to my noble friend Lord Crathorne that the expert thought this to be 90 to 95%—of pre-1918 portrait miniatures.

The Government were persuaded by this new evidence to include a size limit to this exemption and for it to apply to the visible ivory surface. We have again taken the suggestion of the expert to whom the noble Lord, Lord Grantchester, referred of six by eight inches, converted this to metric—when I took advice, I was told that this is now the way in which official bodies conduct themselves, but I do not want to get into imperial and metric—and expressed it as a total surface area in recognition of the high number of portrait miniatures which are circular or oval in shape. Further—I do not know whether this will be helpful to my noble friend the Duke of Wellington—the Bill makes it clear that the frame will not be included in the calculation of the surface area of a portrait miniature. In consultation with stakeholders, we will issue detailed guidance on the exemption criteria, which will include simple steps on how to measure surface area. This amendment was widely supported in the other place.

On the amendments about “de minimis”, I have previously mentioned the extensive work that we have carried out with stakeholders to shape this Bill and we have come to a proportionate response—mindful of what the noble Lord, Lord Grantchester, said about my own party’s 2010 and 2015 manifesto commitments to press for a total ban, referred to in the Explanatory Notes. As such, the de minimis exemption is part of a wider package of narrow and carefully defined exemptions which accounts for a range of views. To broaden the scope of the de minimis exemption would therefore not only weaken the ban but undermine this carefully balanced package. It is important to note that, in determining this package, exemptions for portrait miniatures and the rarest and most important items of their type were included. The exemptions allow for items that would have otherwise been excluded if only the de minimis exemption applied. We can tout percentages, but some states in the United States, including California, have put in place a 5% threshold for their de minimis exemption, setting an even higher bar.

The Government agree with the points made by noble Baroness, Lady Bakewell, and the noble Lord, Lord Grantchester. We believe that a 10% de minimis threshold demonstrates a robust but proportionate approach to this exemption. For example, the exemption will allow the dealing in items such as inlaid furniture to continue, but it will prevent dealing in items containing larger amounts of ivory.

My noble friends have also suggested that we specify volume in cubic centimetres, below which any item may be considered exempt. This could, I am afraid, act as a loophole for those wishing to export solid pieces of ivory to major-demand markets in the Far East. These items are at risk of being re-carved to suit local tastes, thereby further fuelling the demand for ivory and its social acceptability—we have to go back to the public interest in all this; the public interest is to do all we can do across the world to prevent the extinction of the elephant in the wild.

I recognise noble Lords’ interest in how the de minimis exemption will be applied and can assure them that information on how the volume should be assessed will be outlined clearly in guidance. For example, when registering an item, the owner will make their own assessment of the percentage volume of ivory, meaning that no damage is likely to take place. It will also be made clear that any voids which are integral to the item— for example, in a chest of drawers—will be included in the overall volume of the item.

Enforcement bodies have made clear from their experience with existing legislation that a percentage volume is the most practical measurement in assessment and enforcement, as it allows assessments to be carried out by eye. To assess the total weight of ivory in an item would be far more difficult and could even mean that ivory needed to be removed to be weighed, thereby possibly damaging the item. I hope that my noble friends will understand that we do not seek to damage such items.

My noble friends, in particular my noble friend Lord De Mauley, also raised a number of points about the definition of “integral”. I want to explain how we have arrived at this definition and why we are unable to accept his amendment. Evidence provided to us during the public consultation demonstrated a significant risk associated with any de minimis exemption if the right protections are not put in place. Criminals could, for instance, attach a large, solid piece of ivory to another product for it to meet the volume threshold of the de minimis exemption. For example, solid pieces of ivory may be added as a handle to a wooden walking stick, or larger pieces may be attached and presented on a large plinth in order for the ivory to be only 10% of the total volume. Such solid pieces of ivory could subsequently be removed, re-carved and sold in major-demand markets of the Far East, thereby further fuelling demand for ivory.

[Lord De Mauley]

I am not sure that I fully understand my noble friend. Would not these then be modern creations?

[Lord Gardiner of Kimble]

Not necessarily, my Lords.

For this reason, the criteria of the de minimis exemption include a point about the ivory needing to be integral to the item. To avoid a potential loophole being created, it is necessary that the definition of “integral” is sufficiently strict. I recognise my noble friend Lord De Mauley’s points in regard to certain items that this may affect, but we believe that the risk of the exemption being exploited by criminals to sell what should be illegal ivory items is too great.

I am not sure whether I should now refer to the noble Lord, Lord Inglewood, as my noble friend or as the noble Lord, but, whatever he is, he is my noble friend. Taken together, his amendments would remove the requirement to register pre-1947 items with less than 10% ivory by volume. We want a robust yet proportionate compliance process. I want to explain how we have ensured this in the Bill and why the Government do not feel it right to accept the amendment. I have already made clear the intention of this ivory ban and why we have decided to include narrow and targeted exemptions. These will facilitate a limited ongoing trade and allow owners of exempt ivory objects, and those involved in their sale, to continue ongoing commercial activities in ivory. It is, however, crucial that such activities are limited to objects that are unlikely to contribute to the poaching of elephants and that these exemptions are not exploited by those wishing to deal in illegal elephant ivory products.

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[Lord Grantchester]

My Lords, this group of amendments relates to the exemption definition of musical instruments with less than 20% of ivory content. The backstop date at which Asian elephants were first listed in Appendix I of CITES was 1975, before the poaching crisis of the 1980s. Evidence provided through the consultation, including from the Musicians’ Union, showed that that the vast majority of commonly played and traded instruments, including violins, pianos and bagpipes, contain 20% ivory or less by volume. Unfortunately, I understand that Northumbrian pipes would not qualify under this category due to their size. I appreciate the high esteem that these pipes enjoy and the passion with which my noble friend Lady Quin has spoken, but I gently suggest to my noble friend that there might be other ways in which that tradition can be kept alive for future generations. Instruments containing ivory can still be gifted, donated and bequeathed—perhaps, for example, to a dedicated local organisation or even the Northumbrian Pipers’ Society itself—to enable future pipers to enjoy their music. The region could also grant or fundraise for newly manufactured instruments to use ethical alternatives for ivory. I would like the Minister to confirm that that solution would be possible for the Northumbrian pipers. I also reiterate my previous comment that the registration of any exempted items, including musical instruments, is necessary to ensure compliance.

[Lord Gardiner of Kimble]

My Lords, this group of amendments relates to the musical instrument exemption. I say again that the formulation of the exemption has been extensively considered with the music sector. I think I am permitted as Minister to say that when I hear some of my noble friends, I wonder whether they have quite understood that much consideration has gone into the Bill and that the exemption package has involved a considerable amount of intricate detail.

I have never thought of myself as obdurate and I am not going to be so, but we have to go back to the rationale of the Bill, which is to have narrowly defined exemptions to what is a ban on dealing in ivory. If I may say so, my party’s manifesto in 2010 and 2011 contained a total ban on ivory. That is what we fought that election on. We have come forward with a package that we believe is appropriate and should be seen to be so. In all this, I am interested that so many of the people with whom we are working have recognised that the Government have sought to command this great rationale that we want from the Bill but are also seeking to find ways of common sense prevailing. I hope my noble friends will allow me to put on record that I actually do not identify with many of the comments that they have made about the Government’s intention and seeking to make life difficult; in fact we have sought to find a common-sense resolution.

The amendments include a maximum volume in cubic centimetres below which any item may be considered exempt, and propose we increase the volume of ivory allowed in an instrument to 30%. I make it absolutely clear again that the Government’s intention is not to impact unduly on the livelihoods of professional musicians or indeed amateur musicians. This exemption will allow musical instruments made before 1975 and containing less than 20% of ivory to be exempt from the prohibition on the trade of ivory in the UK. Furthermore, items used as an accessory to play a musical instrument—for instance, a violin bow—also fall within the definition of this clause.

In Committee in the Commons, Paul McManus from the Music Industries Association warmly welcomed the exemption under Clause 8 as it stands. Echoing the responses that we received through our public consultation, he stated that the majority of commonly played and traded musical instruments and accessories, such as the bows of stringed instruments, which my noble friend refers to in his amendment, contain less than 20% of ivory. We recognise that some items such as violin bows may be sold, and therefore need to be registered, in higher volumes. In designing the registration system, we are talking to a range of people likely to be frequent users of the system—for example, representatives from the Association of Art and Antique Dealers and the Music Industries Association—so that we can consider their needs. On the suggestion that we include a maximum volume in cubic centimetres below which any item may be considered exempt, I reiterate what I have previously said: I am afraid that an exemption of this type would act as a loophole for those wishing to export solid pieces of ivory to major-demand markets in the Far East.

I turn to the amendment in the name of the noble Baroness, Lady Quin. I am always conscious that when my noble friend Lord Attlee expresses support I am in for serious trouble. I respect what the noble Baroness and indeed the noble Lord, Lord Beith, have said about this matter. I would be interested to know about the numbers of instruments involved. If I am allowed to go off piste, I am going to ask my officials to ensure that there is a full and proper discussion with the Northumbrian Pipers’ Society about these matters. I hope your Lordships will understand that in saying that, I can give no promises because it would not be right for me to do so and indeed I am not in a position to. However, I want to ensure that the Northumbrian Pipers’ Society feels that after today it has had a proper session individually with officials so that we can understand the aspects of what the noble Baroness and the noble Lord have said.

[Lord Beith]

I am grateful to the Minister for making that suggestion. I put it to him that one of the things that he and his officials might explore when they meet the society is how many instruments, and what proportion of the total stock of instruments in existence, would be affected if the law remained as is currently proposed, and whether that could be affected by any amendment in a helpful way.

[Lord Gardiner of Kimble]

The noble Lord and I are on the same page. That is exactly the sort of requirement that I think we should have so that we can understand the points that noble Lords have made.

Some Northumbrian pipes may contain over 20% ivory and therefore may not meet the musical instruments exemption. I obviously cannot commit to this, but having heard what the noble Baroness and the noble Lord have said, is it possible that they could be considered under the rarest and most important items exemption, for instance, because of what the pipes mean in the community? I emphasise that the 20% measurement is applied to the whole instrument, including in the case of the pipes, the bag. I asked this question this morning: it does not include the inflated bag, but it does include the bag. I hope that detail is helpful.

I am a great champion of local traditions. This provision would not stop the pipes being played or enjoyed. As the noble Lord, Lord Grantchester, has said, the ability to pass on and to donate these instruments so that the next generation can enjoy those that are not under 20% is still available. On that matter, not just because it was raised by the noble Baroness but because I recognise that I want the Northumbrian Pipers’ Society to feel that it has had a proper hearing, I will ask for that meeting to take place.

[Baroness Quin]

I would like to put on record how grateful I am to the Minister for listening to the concerns and for at least showing willingness to address some of these issues before the Bill receives Royal Assent.

[Lord Gardiner of Kimble]

As ever, the noble Baroness is very generous in saying that.

I wonder whether my noble friend Lord De Mauley disagrees with my remarks, rather than my not having responded. One of the things I try to do is always to ask whether we have we answered the question. It may be that he and other noble friends simply do not agree with the analysis.

[Lord De Mauley]

The Minister answered a different question.

[Lord Gardiner of Kimble]

Given the hour and the debate that follows, perhaps we could explore that another time.

We have sought to bring forward a proportionate proposal on the musical instrument exemption. We are not in a position to support any further extensions of the exemption in what we believe is a very carefully considered package. I want to explore further the question raised by the noble Baroness. On that basis, I ask my noble friend to withdraw his amendment.