Ivory Bill

Lord Gardiner of Kimble Excerpts

Report stage (Hansard): House of Lords
Wednesday 24th October 2018 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, noble Lords will not be surprised by this, but we are very much opposed to this amendment. The noble Lord, Lord Hague, put the case much more strongly than I will, but I was disappointed by the position of the noble Lord, Lord Cormack, on this. The very fact that his amendment focuses on exports goes to the heart of what the Bill is about. I am sorry that he has sought to start this debate in such a negative way. I hoped that we would have learned from our debates in Committee and that we had made the case in Committee, as the noble Lord, Lord Hague, said, that we are trying to stop the illegal exports of illegal pieces. That is the heart of the problem.

The latest CITES statistics show that there has been a dramatic increase in the amount of both raw and worked ivory being exported from the EU: in 2014-15, the last two years for which data are available, the EU exported 1,258 tusks. That is what has happened according to the CITES information. Over and above that, as the noble Lord, Lord Hague, said, there is the undercurrent of all the illegal trade of which nobody has any record. That is at the heart of this, and I am very sorry that we have started this debate looking at exports, which is the real problem that we have. I know we will go on to talk about other issues, but I regret this and I hope that the noble Lord, Lord Cormack, in other contributions that he might make, will do more to persuade us that he really understands the basis of the Bill. He said that he welcomed the Bill, but I think he has more of a responsibility to demonstrate how. I therefore urge noble Lords to oppose the amendment.

[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 would allow commercial exports of ivory to be exempt from the ban. Given the rationale of the Bill, this amendment would be contrary to its purpose. We have heard from all sides, and we are all united behind the need to tackle the devastating decline in elephant populations, which is being driven by the global demand for ivory. While key demand markets are primarily in the Far East, the UK has, by introducing the Ivory Bill, acknowledged that its own legal ivory market is one of the largest in the world. By closing this market we want to ensure that the UK no longer plays a role in driving the global demand for ivory, including in the Far East.

Currently, the UK ivory market is linked to the Far East. As I mentioned in Committee, a 2016 report by TRAFFIC, the wildlife trade monitoring network, shows that a shift has taken place over a number of years, with the UK legal market increasingly serving consumers in the Far East. UK Border Force officials have uncovered numerous antique ivory items being sent to Asian markets, often mislabelled as items other than ivory. Market surveys in the Far East have also shown that demand for ivory rarely distinguishes between legal and illegal ivory, with both found to be sold side by side. It cannot be denied that antique ivory from the UK is being exported to those markets, where it fuels the social acceptability of ivory and, in turn, perpetuates the demand.

I thank my noble friend Lord Hague for setting it out so clearly—indeed, the noble Baroness, Lady Jones, has said it much better than I possibly could—and I agree with every word he said. If we were to exclude exports from the UK’s ban, as proposed by this amendment, we would not only be allowing this link to continue but would also be condoning, internationally, the export of ivory items to demand markets. This would set back the actions already taken by other countries such as the United States and China by allowing new markets to grow in the Far East. It would also undermine the global movement to close markets and remove the value associated with ivory, which African elephant range states are calling upon us to do.

My noble friend Lord Hague referred to—as I will describe it—this global movement. The Illegal Wildlife Trade Conference was held earlier this month in London, where the UK Government launched the international Ivory Alliance, which will work to close domestic markets and reduce demand for ivory. It was a privilege to introduce a session at the conference—jointly chaired by my noble friend Lord Hague and Dr Zhou Zhihua of China, with a panel including the Assistant Deputy Secretary from the US Department of the Interior and the former New Zealand Prime Minister Helen Clark—which focused on the importance of closing domestic ivory markets.

The action the UK has taken by introducing this Bill is already helping to encourage other countries to take action. As my noble friend Lord Hague has said, both the Cambodian and Laotian Governments announced at the conference that they will be closing their domestic markets. This is an important step forward. Our work in the UK has also resulted in an Australian parliamentary committee recommending that Australia close its domestic market. The committee urged the Australian Government to follow the UK’s approach, which they described as an example of best practice.

Our actions are already having an impact and will continue to, if we make the right decisions. The current restrictions in place are not strong enough and there is an international movement, endorsed by a CITES resolution, to address the gap and in turn protect elephants. The UK must play its part, and it is for these reasons that the Government cannot support my noble friend’s amendment. As is customary at this stage, I therefore respectfully ask him to withdraw it.

[The Earl of Clancarty (CB)]

If this amendment is not passed, what would happen to objects that are confiscated at the border? I am thinking in particular of significant cultural objects that were destroyed in America, because all ivory is disallowed from entering the United States.

[Lord Gardiner of Kimble]

I say to the noble Earl, as my noble friend Lord Carrington mentioned, that there is no intention to destroy any objects. Indeed, there are further amendments on exemptions that we think strike the right balance regarding outstanding and the rarest items. We have a strong and proportionate package of exemptions, which will come up in the next group of amendments.

[Lord Cormack]

My Lords, the Minister’s response to that intervention from the noble Earl illustrates the lack of knowledge among those who are indulging in the gesture politics occupying us this afternoon. The fact of the matter is that, as the noble Earl, Lord Clancarty, referred to, already the United States is destroying items that have ivory as an ingredient. We will come to that later in today’s debate, but take as an example an Art Deco figure with an ivory head and a silver body. The ivory head would be taken out. There is a particularly graphic example of a Victorian salt and pepper pair, dating from, I think, 1874. They were beefeaters, and the faces were ivory. They were destroyed. This is the stuff of madness.

My noble friend Lord Hague speaks with passion, and I hope I rival his passion in wanting to preserve elephants, but he does not seem to understand the difference between antique objects and artefacts and modern things. He talked about fakes, but there are fakes in every walk of life and in every form of antique—we know that. But we would not clamp down on the sale of pictures because occasionally a fake appears on the market. We have to be moderate and sensible in our approach.

I will reflect on what has been said and I may well bring something back on Third Reading. I shall certainly test the opinion of the House on a later amendment this afternoon, but—

[Lord Gardiner of Kimble]

With respect, on this matter and with this amendment, I have no option but to tell my noble friend that I will say exactly the same at Third Reading. He says he intends to bring it back at Third Reading, but it is really a matter that we should deal with today, on Report. That is the way to deal with it. We have considered it in ministerial meetings and it goes to the very heart of the Bill. To take “exporting” out rides a coach and horses through the Bill’s premise, and I respectfully tell my noble friend that, at Third Reading, I will say exactly the same. If he does wish to test the opinion of the House, it should be at Report.

[Lord Cormack]

My Lords, obviously I will reflect on what my noble friend has said. I wish to test the opinion of the House on a later amendment but, for the moment, I will withdraw this one.

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[Lord Grantchester (Lab)]

My Lords, my noble friend Lady Quin has spoken eloquently on the effect of the Bill on future generations of Northumbrian pipers. Like her, we cherish musical tradition and would not wish the music played by pipers and enjoyed to cease. I pay tribute to the department for organising a visit by a member of its team to assess the instrument and thank her for meeting the society. However, as has been reported back to the department, some of the pipes have problems under the Bill. It is my hope that the Northumbrian Pipers’ Society itself can take on a role in seeing that instruments are recycled to new pipers through bequests and other measures, and that new instruments avoid the provisions of the Bill. It would be difficult to create a new exemption for Northumbrian pipes. As the House will later see, we have tabled Amendment 78 to report on the effects of the Bill on musical instruments more generally. Evidence provided through the consultation, including from the Musicians’ Union, showed that the vast majority of commonly played and traded instruments, including violins, pianos and bagpipes, comprise less than 20% ivory.

Turning to Amendment 2 and others in this group, we do not support what they wish to achieve, which amounts to a reduction in the provisions and effectiveness of the Bill, which is a commitment of both parties to introduce a ban on the sale of ivory. The Bill includes limited exemptions to the ivory trade that are sufficiently narrow to ensure that they will not contribute to the poaching of elephants. The carefully crafted clauses represent the culmination of a productive collaboration between NGOs, law enforcement, museums, art dealers and musicians. It is Labour’s view that the Bill strikes the right balance. I call on all the proposers of amendments in this group to withdraw or not to move their amendments so that future generations can enjoy living in a world with elephants.

The Illegal Wildlife Trade Conference, held earlier this month in London, underlined the importance of the UK putting in place a near-total ban on UK ivory sales as soon as possible. This legislation builds on the resolution agreed at the 2016 Conference of the Parties to CITES to phase out domestic ivory markets and will give the UK greater credibility in continuing to press other key countries in south-east Asia with a history of ivory trade to commit to closing their markets and to implementing strong domestic ivory bans. China closed its ivory market in 2017. Ivory poaching is now the fourth-largest crime sector after arms, drugs and trafficking. I remind your Lordships’ House that 20,000 elephants are killed each year, or some 55 a day.

I turn to Amendment 24 in the name of the noble Lord, Lord Inglewood, which seeks to remove registration as a precondition of allowed sales of de minimis objects. The noble Lord raised concerns about proportionality and others have followed with remarks on both the registration fee and administration involved, which would necessitate photographing, measuring and examining the object for any distinguishing features before uploading the information to a database. I am sure the noble Lord would accept that photographing, measuring and examining the object for any distinguishing features would be part of any normal process of listing an item for sale at an auction house or on an online marketplace. It is our view that registration is necessary for enforcement. The proposed system places a small administrative responsibility and a small financial cost on the seller, who, in turn, will gain from the exemption to the ban on dealing in ivory. Crucially, by registering an item through the system, the applicant will be confirming that, to the best of their knowledge, all the information provided is correct and the item therefore meets the exemption. The APHA, the regulator and the police will have access to the registration system to enable them to carry out any enforcement and monitoring action necessary. The APHA will also carry out spot checks on items registered to check for accuracy and compliance. This is also a key and necessary part of the regulations.

Amendment 22 in the name of the noble Lord, Lord Cormack, would remove the size criterion for portrait miniature exemptions. The noble Lord will recall from our previous consideration of this issue that the Government added the category of portrait miniatures to the list of exemptions in Committee in the other place. Emma Rutherford, a representative of Philip Mould & Co, an expert on portrait miniatures, gave evidence on how the exemption for portrait miniatures could be refined to add a size limit, and agreed that the suggestion of six inches by eight inches would be sensible. This is 320 square centimetres, which would allow between 90% and 95% to be exempt. The Government have moved considerably on many of these features and I therefore call on the House to reject these amendments.

[Lord Gardiner of Kimble]

My Lords, these amendments relate to the scope of the ban and, in particular, some of the exemptions to it. I emphasise how uncomfortable I am in having to address this to a number of my noble friends, but I do so with great sincerity. The department has undertaken extensive consultation with a broad range of stakeholders, including the music sector, the antiques sectors and all the sectors engaged, as well as NGOs interested in conservation, to shape the Bill and, in particular, to establish a narrow and carefully defined set of exemptions.

I was struck by what my noble friend Lord Hailsham said—he used the word “proportionate”. The architecture of this proportionate approach has been carefully designed to balance the need to close our domestic markets with consideration of the interests of those who currently own certain items of ivory and the obligation to protect our cultural heritage. I think that my noble friend Lord De Mauley was in his position at Defra when my party had a manifesto pledge, in 2015, for a total ban. We have considered with the consultation that there are proportionate ways of approaching what is an imperative: to do everything that we can to stop the incidental and direct pressure on the elephants on this planet. That is why I will cut to the chase and say that the Government cannot support the amendments in this group. But I would like this opportunity, as is only reasonable, to set out why in more detail.

Amendment 2, tabled by my noble friend Lord Cormack, serves to alter the definition of ivory in Clause 1 of the Bill. This amendment would mean that any item with less than 20% ivory or any musical instrument with less than 30% ivory would be excluded from the ban, meaning that it would remain legal to deal in such items. Indeed, they would be within the scope of the rest of the Bill. The amendment does not state whether this threshold refers to volume, weight or another measurement. There is no backstop date referred to. This amendment would mean that items of any age with less than 20% ivory or any musical instrument with less than 30% ivory would not be affected by the ban and would only be subject to existing CITES regulations. This amendment would greatly undermine the scope and purpose of the Bill.

My noble friend Lord Cormack’s Amendment 22 refers to the exemption for pre-1918 portrait miniatures. The amendment would remove the size qualification, excluding the frame, from the exemption. We had this discussion in Committee, and my noble friend the Duke of Wellington referred to his own personal and rather considerably sized portrait miniature, which he rightly said he had no intention of dealing or selling. As the noble Lord, Lord Grantchester, said, this size qualification was developed from evidence provided during a House of Commons evidence session by a portrait miniatures expert. This evidence suggests that the size qualification, as we have heard, would include in the exemption 90% to 95% of pre-1918 portrait miniatures, which is the majority. Any item that falls outside this size qualification may also be exempt as an item of outstanding artistic, cultural or historical value and importance if it meets the criteria, which will be set out in regulations. The Bill makes clear that a frame would not be included in the calculation of the surface area of a portrait miniature. As I said, we will be developing detailed guidance on how to measure surface area, in consultation with relevant stakeholders.

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[Lord De Mauley]

I am very grateful to my noble friend. Can he give us an indication of what the level will be?

[Lord Gardiner of Kimble]

No, my Lords, I am not able to give an exact sum.

[Lord Cormack]

An approximation.

[Lord Gardiner of Kimble]

No, I am not going to give an approximation. I used the words “a small fee”, and it will be considered in what would be the normal manner in which fees are considered. I have put on record that it will be a small fee. It is not intended to be burdensome or bureaucratic. I emphasise—given that we wish to reduce demand for ivory, as it is no longer a desired object around the world because of the continuing slaughter of elephants—that we need to do everything we can. That is why we want to protect sellers and buyers in those exempt areas which we have agreed in the Bill and to give them an assurance, given the fact that around the world we are seeing the closure of domestic markets of ivory, that this protects future sellers and buyers of the items within our exemption package.

I believe, and the Government believe, that the online self-registration system will have a range of benefits. It will provide assurance to those dealing in ivory through an exemption that they are complying with the law. It will also be an essential tool in identifying breaches of the ban. Enforcement officers will be able to use material submitted to the online system to monitor compliance and to support investigation into potential offences.

Of course, every individual has the right to own and enjoy items made of or with ivory and to bequeath and inherit those items without the need for registration. Indeed, many of these items will have sentimental value. It is only in the case of selling, hiring or using an item for commercial gain that registration will be required, which we believe is a proportionate response. We must ensure that robust measures are in place to enforce the Bill. Therefore, it is critical that all exempt items are subject to registration to support the rationale of the Bill but also, as I said, to support the interests of the sellers and buyers of exempt ivory.

Amendment 25, tabled by my noble friend Lord Carrington, seeks to clarify, with reference to the de minimis exemption, what is to be considered integral to the piece. Ivory must be,

“integral to the item’s design or function and contemporaneous with the item”.

I preface my remarks by saying that I am very pleased to see my noble friend returned to his place following his time in hospital. We have given this issue very careful consideration, and I hope that my forthcoming explanation will provide him with reassurance as to the intent of this exemption.

My noble friend correctly identifies that the ivory content of an item meeting this exemption must be incorporated into the piece at the time of its manufacture and to constitute an irremovable aspect of the item’s form and function. The ivory cannot, of course, have been added at a later date or be superfluous to the design and/or function of the item. As drafted, the Bill takes account of these concerns. Clause 7 provides that the ivory must be integral to the item, and may not be removed without difficulty or without damaging the item. Most obviously, that would apply in the case of inlaid furniture. But it would also apply where the ivory element were part of a detachable part of the item that is itself integral to the piece. If I may explain further, I would point to a teapot or serving dish with an ivory handle to the lid. The lid is clearly integral and contemporaneous to the teapot or serving dish, and the ivory handle is integral to the lid. Therefore, providing that the total volume of ivory in the item is less than 10%, it would meet the de minimis criteria.

There are other types of items, such as barometers and maybe small sewing boxes, for which the ivory content may be an entirely separate element, such as a knob on a barometer or the lid of a sewing box. These elements were clearly designed to be removable yet are integral to their design and purpose. For instance, without the knob—my noble friend Lord De Mauley raised this in Committee and my noble friend Lord Carrington raised it today—one may not set the mercury level on a barometer, and without the lid, assuming that it is less than 10% of the volume of the whole piece, the item could not function as a box. We will set out in guidance not only what I have described as examples but more fully the points that my noble friends have raised.

Amendment 28, tabled by the noble Baroness, Lady Quin, would add a new clause after Clause 8 to exempt any,

“musical instrument that has been certified by the Northumbrian Pipers’ Society, or a similar approved organisation, as being a set of, or part of a set of, Northumbrian pipes made before the passing of this Act, and covered by a valid … (CITES) certificate”.

In Committee, I gave an undertaking that my officials would meet the representatives of the Northumbrian Pipers’ Society, and a very informative meeting was held.

As the noble Baroness knows, I am sympathetic to the Northumbrian piping community and the traditions. However, her amendment would constitute a widening of this exemption. Interestingly, my official identified that most pipes contain less than 20% ivory by volume, which was the initial concern in Committee. It then became more apparent during the detailed consideration —for which I am most grateful to the Northumbrian Pipers’ Society—that some Northumbrian pipes were made after 1975 with ivory repurposed from other items, and therefore will not be covered by the musical instruments exemption. The noble Baroness’s amendment would, however, allow Northumbrian pipes made with ivory right up until this year to be exempt from the sales ban. We believe that that would create an unjustifiably broad exemption for one instrument over all others. I should emphasise that those instruments not covered by the exemption will still be able to be played and enjoyed, and that the ban will not affect the ability to pass on or donate those instruments for future generations.

I apologise to noble Lords for taking some time, but I want to emphasise that the Government have embarked on considerable consultation in bringing forward the exemptions package. We remain of the view that they are reasonable. Phrases such as “gesture politics” do not chime with me. I attended the Illegal Wildlife Trade Conference, as I said on an earlier group of amendments. The word that came from that group, which represented over 80 countries, was “leadership”. It was about the leadership that this country is taking. That point was endorsed by five heads of African states. I hope that my noble friend Lord Carrington will forgive me, but my impression from meeting people at that conference was that they were not cynical.

[Noble Lords]

Oh!

[Lord Gardiner of Kimble]

They were not cynical. They were men and women from countries that are the most dramatically affected by the slaughter of elephants. These are the vulnerable villages and communities of Africa that are losing one of the most important economic engines for their prosperity. If any of those people had heard some of the comments this afternoon about gesture politics and cynicism, they might have despaired of this country. That is not the purpose of this legislation. Its purpose is to ensure that this country does everything possible—everything—to play our part in saving one of the planet’s most important and iconic animals. I have to say—and I will close with this—that in the end, whatever points my noble friends have made this afternoon, the interests and importance of these animals must always come before those of privately owned objects.

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Moved by

[Lord Gardiner of Kimble]

7: Clause 2, page 2, line 18, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 2(3)(c) currently allows the Secretary of State to use guidance to specify matters that must be taken into account when considering whether an ivory item is of outstandingly high artistic, cultural or historical value. This amendment requires these matters to be specified in regulations instead.

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[Lord Gardiner of Kimble]

The amendments in this group arise from the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. I thank the committee for its report, which has been extremely helpful in developing further how key parts of the Bill are to be implemented. The committee made a number of recommendations suggesting that negative resolution regulations, instead of guidance, should be used to set out certain matters.

First, Clause 2(3)(c), which allows for “other matters” that may be taken into account when deciding whether a pre-1918 item is of outstanding artistic, cultural or historical value, will be amended to be set out in regulations. “Other matters”, in this context, are in addition to consideration of the rarity of an item and the extent to which it is an important example of its type. Such matters might include an item’s religious significance, scientific importance or whether it has previously been on public display.

The Government agree with the Delegated Powers and Regulatory Reform Committee that in this case, guidance would not be an appropriate method of detailing the other matters that prescribed institutions—museums with expertise in ivory items—should take into account when providing advice on whether items are of outstanding artistic value and importance. As the committee notes, setting out regulatory requirements in guidance can mean that a person can have an element of choice about whether to follow them. This is not the Government’s intention and we therefore accept the committee’s recommendation.

Amendments 7 and 11 also replace powers to set out in guidance additional information that those applying for an exemption certificate under Clause 2 and those registering items as exempt under Clause 10 must include in their applications. This is in addition to that set out in the Bill under Clause 3(1) and Clause 10(1). Work on the implementation of the Bill has revealed that it already lists all the information we will need to issue exemption certificates and handle registration applications. We therefore accept the committee’s recommendations with respect to Clauses 3 and 10 by requiring additional information requirements to be set out in regulations rather than guidance, should a future Government need to do this. While important details will be set out in regulations, the Government will still produce guidance that will help applicants navigate their way around the application processes for both the exemption certificate and registration regimes.

Amendments 14 and 38 remove Clause 4(8) and Clause 11(5) from the Bill. These provisions allow guidance to be used to set out how applications for exemption certificates and registrations must be made. Guidance may, for example, require applications to be made electronically or online. The Government have decided to allow maximum flexibility with regard to how applications may be made and will therefore be removing these powers from the Bill because they will no longer be necessary.

Applicants for exemption certificates and those registering items as exempt will be able to apply online or download forms to be completed in hard copy for postal submission. They will also be able to telephone or email requests for copies of forms to be sent to them by post. This is to reflect the diversity of persons who may wish to submit applications, which may range from private individuals without internet access to large auction businesses.

[Lord Cormack]

Will they be able to apply by post? Do they have to download it or get it by email? My noble friend said they can send things in by post. Many of these people will be very elderly and will not necessarily be familiar with modern devices.

[Lord Gardiner of Kimble]

I will make sure that I get a precise note. The whole purpose of us saying that people can apply online and offline is precisely to cover the diversity of private individuals, as I mentioned. I will just check for my noble friend whether a form can be sent or whether it has to be downloaded.

The answer, apparently, is that there will be a range of opportunities for people to receive forms—online or not. I am told that a hard copy application can be requested by telephone. I think that covers, in one way or another, most people in this country.

The committee also recommended that Clause 5 should include more details about the appeals regime, rather than leaving it to secondary legislation. Amendments 17 to 21 deliver the committee’s recommendation. First, the amendments set out in the Bill that the First-tier Tribunal will hear any appeals against a decision by the Secretary of State not to issue an exemption certificate or to revoke an existing certificate. As many of your Lordships will know, the First-tier Tribunal has wide experience of hearing appeals concerning regulatory matters and, indeed, is the body to hear appeals against decisions to serve civil sanctions in Schedule 1 to the Bill. The amendments also set out in the Bill the grounds on which an appeal may be made and the powers of the tribunal on hearing an appeal. The only matters that will be left to secondary legislation will be any further grounds that the Secretary of State may wish to add and the cost of an application for an appeal to the tribunal. I acknowledge once again the recommendations of the Delegated Powers and Regulatory Reform Committee, and I beg to move.

[Baroness Jones of Whitchurch]

My Lords, I support these amendments. We are very pleased that the Government have listened to the Delegated Powers Committee and have addressed its concerns about too much detail being contained in guidance. We will return to this issue when we debate our Amendment 40, which seeks to establish regulations about how those dealing in ivory can verify the exempted status of the piece being bought or sold.

We also welcome government Amendments 17, 18 and 21, which considerably tighten up the basis on which appeals on exempted certificates can be made. We raised this issue in Committee and are very pleased that the Government listened to those arguments and have produced specific grounds for appeal that cannot be used to undermine the clarity of the decision-making process. We therefore support these amendments.

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[Lord Gardiner of Kimble]

My Lords, I think it is customary that I thank the noble Baroness very much for her support for this group of amendments. It is an indication of the importance of the work of your Lordships’ House and the committees.

Amendment 7 agreed.

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Moved by

[Lord Gardiner of Kimble]

9: Clause 2, page 2, line 21, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

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Moved by

[Lord Gardiner of Kimble]

11: Clause 3, page 2, line 39, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 3(1)(g) currently allows the Secretary of State to use guidance to specify information that a person applying for an exemption certificate must provide. This amendment requires the information to be specified in regulations instead.

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Moved by

[Lord Gardiner of Kimble]

14: Clause 4, page 4, line 21, leave out subsection (8)
Member’s explanatory statement
Clause 4(8) currently allows the Secretary of State to issue guidance setting out the form or manner in which anything required by clause 3 or 4 may or must be done. This amendment removes this power.

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Moved by

[Lord Gardiner of Kimble]

17: Clause 5, page 4, line 34, after “appeal” insert “to the First-tier Tribunal”
Member’s explanatory statement
This amendment provides that an appeal against the refusal or revocation of an exemption certificate is to be made to the First-tier Tribunal.

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Moved by

[Lord Gardiner of Kimble]

29: Clause 9, page 6, line 1, leave out paragraph (a) and insert—
“(a) in the case of a museum in England, the Channel Islands or the Isle of Man, it is shown as being accredited in a list published by or on behalf of Arts Council England;(aa) in the case of a museum in Wales, it is shown as being accredited in a list published by or on behalf of the Welsh Government;(ab) in the case of a museum in Scotland, it is shown as being accredited in a list published by or on behalf of the Scottish Ministers;(ac) in the case of a museum in Northern Ireland, it is shown as being accredited in a list published by or on behalf of the Northern Ireland Museums Council;”Member’s explanatory statement
This main effect of this amendment, which is about how museums are to be identified as “qualifying museums” for the purposes of clause 9, is to replace the reference to Museums Galleries Scotland with a reference to the Scottish Administration. It is also intended to clarify the drafting.

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Moved by

[Lord Gardiner of Kimble]

33: Clause 10, page 6, line 37, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 10(1)(f) currently allows the Secretary of State to use guidance to specify information that the owner of an item must provide when applying for registration of the item. This amendment requires the information to be specified in regulations instead.

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There is something that I want to avoid—and to make clear in this new clause—when an estate has a valuable collection of ivories, or indeed any ivories at all. Let us say for the sake of argument that there is a collection of ivories of museum quality—netsukes worth £100,000, for example; a substantial amount—and the estate is well above the inheritance tax threshold. When looking at probate, HMRC will come along and say, “You are passing this extremely valuable collection on to your children under your will”. If this collection had been registered, it would have a value. It might be a value that a museum would pay; it might be a value, if it were less than 10% ivory, such that you could sell it on the open market, but it would have a value. But without it being registered, it has no value. This new clause tries to tease out this issue and hopefully get it on the record, and to make it clear to HMRC that an ivory item that is not registered has no value and therefore no value for probate, so the wonderful inspectors at HMRC should keep their sticky fingers off it.

[Lord Gardiner of Kimble]

My Lords, my noble friend Lord Cormack’s amendment aims to enable a person who inherits a registered ivory item from a relative also to inherit the title to that registration. Self-registrations for items meeting the de minimis, musical instruments or portrait miniatures exemptions, or for items to be sold to an accredited museum, are in the name of the owner. If a new owner subsequently wishes to deal in that item, or wants to ensure that it is registered as exempt for any other reason, he or she must register it online in their name. A person inheriting a registered ivory item would assume the responsibilities of ownership of that piece, including the decision whether to register it in their name, in line with their specific circumstances. If a person inheriting or taking possession of an ivory item is unsure whether it is registered, this would not affect their rights or responsibilities as the new owner. Because the registration is associated with the individual, it therefore falls to the person inheriting the piece, as the new owner, to register the item if they wish to undertake dealing in it. I repeat: if they wish to undertake dealing in it.

The Government are working closely with interested parties to develop an online self-registration system for ivory items that will be quick and simple to use and meet the needs of all users. I also reassure noble Lords that an offline system will also be made available to cover the points that have been raised in other amendments. Of course—I emphasise this to my noble friend—for items under the rarest and most important items of their type, the exemption certificate remains with the item when it is passed to a subsequent owner. That is the distinction.

I turn to my noble friend Lord Carrington’s amendment concerning ivory items passing through probate. This is an important issue and I can reassure your Lordships that the Bill will not impact on, or cause additional burden to, those involved in such situations. The ivory ban does not affect one’s right to bequeath or inherit any ivory item, regardless of whether it meets an exemption, is registered or is certified. An ivory item may therefore be bequeathed without requiring registration by either the person inheriting the item or the executors of the estate.

The matter of inheritance tax has been clarified in your Lordships House before and I am happy to do so again for the record. Her Majesty’s Revenue and Customs confirms that ivory items will be considered to have nil value on the open market for inheritance tax purposes unless that item has been registered or certified as exempt. Items registered or certified as exempt will be assessed against their market value in the normal way and may therefore be subject to inheritance tax. With this explanation, I hope that my noble friend can withdraw his amendment.

[Lord Cormack]

Like the noble Baroness, Lady Quin, I too know when I am beat. I do not think it would serve any purpose to press this amendment. I am mildly comforted by what my noble friend said; maybe we can have conversations on this as the Bill comes into force. I beg leave to withdraw my amendment.

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Moved by

[Lord Gardiner of Kimble]

38: Clause 11, page 7, line 32, leave out subsection (5)
Member’s explanatory statement
Clause 11(5) currently allows the Secretary of State to issue guidance setting out the form or manner in which anything required by clause 10 or 11 may or must be done. This amendment removes this power.

--- Later in debate ---

[Baroness Jones of Whitchurch]

My Lords, Amendment 40 concerns verification regulations. As we debated in Committee, it is imperative that the exemption processes introduced in this Bill are robust and proportionate. In Committee, we introduced a probing amendment that would allow the Secretary of State to create a verification system to enable buyers to ensure that they were complying with the law. We felt that this was particularly important, given that the definition of “dealing” in Clause 1 specifically includes buying as well as selling ivory. Even the noble Lord, Lord De Mauley, with whom we on these Benches have found little common ground with regard to this Bill, concurred that it was a most sensible suggestion.

In response, the noble Baroness, Lady Vere, agreed that a potential buyer must be able to verify that it is legal to purchase the item before finalising the sale. She outlined how a buyer wishing to check the legality of buying or hiring an item would be able to confirm that it had been registered or certified as exempt and look it up on the online system via the item’s reference number. This would enable them to compare the photos and description on the system with the object they intended to purchase. This was a welcome commitment from the Government. I was disappointed, however, by the noble Baroness’s insistence that we do not need regulations to underpin such a system.

Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee report raised concerns about the scope of regulation-making powers contained in the Bill, concluding that the delegation of powers was inappropriate in many areas. We agreed with this view and feel strongly that it would be inappropriate for the purpose of establishing a verification system too. The verification process described by the noble Baroness, Lady Vere, must be subject to parliamentary scrutiny and should be set out in regulations. We feel that this is very important, given the legal implications for breaking the prohibition on dealing, as well as issues involving privacy and the protection of personal data. Indeed, it was for this reason that the noble Lord, Lord Gardiner, advised that the Government would be unable to publish photos or descriptions of specific items exempted. We need to be much clearer about the verification processes that would underpin the Bill and the protections that would be afforded to the buyers, particularly when they are making online purchases, when fake sales particulars are all too often a hazard.

Having reflected on the Minister’s earlier response, we also believe that the negative procedure offers an appropriate level of parliamentary scrutiny for the verification of exempt items. Therefore, we hope that noble Lords will support this amendment, which would insert regulations, but to be approved only through the negative procedure. I beg to move.

[Lord Gardiner of Kimble]

My Lords, this proposed new clause would provide the Secretary of State with a new delegated power to make regulations and publish guidance to enable a potential buyer of an ivory item to check its exemption status prior to purchase. I reassure the noble Baroness that the Government will ensure that compliance, by both sellers and purchasers of ivory items, is fully facilitated. The Secretary of State will issue non-statutory guidance, which will set out the detail of each exemption and the requirements for self-registration or certification of exempted items. The guidance will also contain clear advice, for both buyers and sellers, on compliance, including the process by which a potential buyer will be able to check a registration or certification before purchasing an item. I also make the point that verification is in the Bill. We will provide administrative guidance to assist both the buyer and the seller.

I note that the amendment tabled by the noble Baroness would create an additional delegated power for the Secretary of State, by allowing him to specify how many items should be verified. Furthermore, to lay regulations to specify this would be a duplication of the relevant provisions already in the Bill.

Before I set out for your Lordships precisely how the registration system will work, which is important, and thus the measures in place to enable verification, I also note that the Delegated Powers and Regulatory Reform Committee of this House has considered the Bill in detail and made a number of recommendations to reduce the number of delegated powers, which, as we heard on earlier amendments, the Government have addressed.

Ultimately, it will always be in the seller’s interest to ensure that the exemption certificate or registration document is available at the point of sale. It would be appropriate for an antique dealer or auction house to display the certificate or registration details alongside the item or show it to customers at the point of sale. For online sales, we would similarly anticipate that a seller would show proof that the item has been registered or an exemption certificate issued.

We are currently working on the design and build of a new online system to enable owners of exempt items to register them prior to sale or hire. A potential buyer wishing to check the registration of an item will be able to look up that item on the online system, using the unique registration number provided on the seller’s registration document. The buyer will be able to view the information concerning that item held on the database to satisfy themselves that it indeed relates to the item in question. This will allow buyers the comfort that the seller has complied with the process and to verify the registration document.

For items with an exemption certificate under Clause 2 of the Bill—that is, the rarest and most important items of their type—we would in practice expect the seller to make the exemption certificate available to the potential buyer. Similarly, the potential buyer will also be able to consult the online database using the unique identification number on that exemption certificate.

That is why we do not need a power in the Bill to provide the means for buyers to verify that they can legally buy a certified or registered ivory item: as I have explained, it is our intention that this will be achieved through the functionality of the online registration system. This provides a clear means for the buyer to verify the legitimacy of their intended purchase. Furthermore, the Government will publish non-statutory guidance, which will set out exactly how sellers should provide buyers with the assurance that they are entitled to sell an item and that the transaction will therefore be lawful.

Before the Bill is commenced, we will run an awareness-raising campaign to ensure that relevant stakeholders and members of the public are fully aware of the new legislation and associated guidance. As such, we believe it would be unnecessary to include additional powers in the Bill to enable a potential buyer of an ivory item to check on the exemption status of an ivory item. As I have explained, this is precisely why perfecting the online registration system is so important and why work is under way on that.

I believe that the Government have covered the points that the noble Baroness seeks to address, given the explanation and a bit more detail. As the online system is developed, I am happy to ensure, for any noble Lords interested in these matters, a continuum of assurance that this work is well in hand. On that basis, I say to the noble Baroness that these points are covered. I sincerely hope she feels able to withdraw her amendment, because the Government have covered this point.