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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Friends of Antique Cultural Treasures Ltd, R (On the Application Of) v Secretary of State for the Environment Food And Rural Affairs (Rev 1)  EWHC 2951 (Admin) (05 November 2019)
Cite as:  Env LR 14,  EWHC 2951 (Admin),  ACD 9
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
On the application of
FRIENDS OF ANTIQUE CULTURAL TREASURES LTD
|- and –
|SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS
Sir James Eadie QC, Hanif Mussa and Daniel Cashman (instructed by Government Legal Department) for the Defendant
Hearing dates: 16th and 17th October 2019
Crown Copyright ©
MR JUSTICE JAY:
An Outline of the Legislative Framework
The EU Regime
"… [to] ensure that tusks of legal origin are not mixed with illegal ivory and help destination countries implement their actions to reduce the demand for ivory, which constitute an important step in addressing illegal trade in ivory and the current elephant poaching surge.
The Commission recommend that, in the current circumstances, in the light of the precautionary principle, and unless conclusive scientific evidence to the contrary comes to light, Member States should consider that there are serious factors relating to the conservation of elephant species that militate against the issuance of re-export certificates for raw ivory."
I should add that the UK has followed this recommendation and has a policy (to the extent to which the Regulations do not already preclude it) which effectively bans the commercial trade in all raw ivory of any age.
"Contrary to raw ivory, 'worked ivory' encompasses many different types of specimens. This includes items which have been in trade legally for decades (for example musical instruments or antiques) and it is not clear whether a complete suspension of re-export for such items would have a tangible impact against international illegal ivory trade. In view of the increase in re-exports of worked ivory from the EU in recent years, there is however a need to strengthen scrutiny on the implementation of the current rules.
In all cases, it is imperative that EU Member States exercise a high level of scrutiny in relation to application for re-export of worked ivory, to make sure that they only deliver the relevant documents when the conditions set out under EU law are met which guarantee that the ivory is of legal origin. With a view to avoiding that ivory items which do not fulfil the required conditions are exported, it is recommended that the conditions for issuing such re-export certificates are strictly interpreted."
"Reports indicate that large quantities of pre-1947 items are sold and purchased within the EU market, through antique shops, auction houses or online sites. Controls are carried out by enforcement agencies to verify that the items conform to the derogation, however 100% compliance cannot be guaranteed. There has been some indication that the pre-1947 derogation is sometimes abused and that post-1947 items are offered for sale on the EU market and presented as pre-1947 items which need no certificates."
The Commission proposed that current rules be tightened so as to require the owner to demonstrate "reliably, using approved scientific evidence and methods, that the ivory was acquired before 1947".
"The aim of the Act is to help conserve elephant populations, specifically by reducing poaching, through significantly limiting the legal market for ivory items in the UK. This is intended to reduce demand for ivory both within the UK and overseas through the application of the sales ban to re-exports of ivory items from the UK ...
The Act also aims to remove the opportunity to launder recently poached ivory as old ivory items through legal markets, and for it to be re-exported to "demand" markets, i.e. those markets where ivory continues to be a desirable commodity. Such markets are also the primary destinations for newly poached and illegally-sourced ivory. This is intended to prevent products from the UK contributing, including inadvertently, to markets which create a demand for ivory, driving poaching and the illegal trade in ivory. Finally, the ivory ban will demonstrate the UK does not consider commercial activities in any ivory that could fuel poaching to be acceptable and it sends a message that similar actions should be taken globally.
At the 17th Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Resolution 10.10 (Rev COP17) on Trade in Elephant Specimens was agreed. This non-binding resolution recommended that all Parties and non-Parties in whose jurisdiction there is a legal domestic market for ivory items that is contributing to poaching or illegal trade should take all necessary measures to close their domestic ivory markets as a matter of urgency. The resolution also recognised that narrow exemptions to this closure for some ivory items may be warranted, but that any exemptions should not contribute to poaching or illegal trade.
The Government, through the Act, is addressing its domestic and international commitments by adopting a ban on commercial activities in ivory."
The Defra's Policy and Consultation in introducing the Ivory Bill
"a total ban on ivory sales in the UK that could contribute either directly or indirectly to the continued poaching of elephants, and to prohibit the import and export of ivory for sale to and from the UK, including intra-EU trade to and from the UK." (footnotes omitted)
As for the rationale:
"By banning the sale of ivory in the UK, as well as prohibiting the import and export of ivory for sale to and from the UK, including intra-EU trade to and from the UK, we will send a global signal that trading ivory is not acceptable. We will send a strong signal that the UK does not condone continued demand for ivory.
While there have been global efforts to ban the trade of new ivory, for example the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) has banned the trade in new ivory from Asian elephants since 1975 and from African elephants since 1990, global trade in older ivory continues to be widely permitted. Other countries have also taken steps to ban the sale of ivory and ivory products within their domestic markets. Ivory is still, however, seen by many as a desirable commodity, and connotations of luxury and quality help to maintain a high price for both legal and illegally-sourced ivory. The legal trade continues to incentivise poaching by creating a demand for new ivory products and can also provide a way to launder fresh ivory from illegally killed elephants. We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products. We want to remove any possibility that this could happen by placing very strict restrictions on what may be legally traded within the UK. Part of this will be to prevent items being exported from the UK to "demand" markets: those which are also destinations for newly poached and illegally-sourced ivory. This will prevent products from the UK contributing to markets which create a demand for ivory, driving poaching and the illegal trade in ivory. Sales of ivory products, including larger items of solid ivory, present a risk in terms of opportunity to pass off illegally-sourced ivory as legitimate. Statistics from the Elephant Trade Information System signify that the illicit ivory trade and the weight of ivory involved are now three times greater than in 1998." (footnotes omitted)
"- Allowing the continued sale of musical instruments which contain ivory.
- Allowing the continued sale of items which contain a small percentage of ivory, and where the ivory is integral to the item - a "de minimis" exemption.
- Allowing the continued sale of items which are of significant artistic, cultural and historic value.
- Allowing the continued sale of ivory to museums, and between museums."
"Impacts on individuals and households. The Department's assessment of the loss of wealth to individuals with items containing ivory (page 27) does not appear to be proportionate to the scale of this impact, with an estimated "over two million items made of ivory or with an ivory component… in British homes" (paragraph 124). The Department's assessment of these impacts is, therefore, not fit for purpose, and should be strengthened significantly. [emphasis supplied]
Enforcement costs. The IA would also benefit from further assessment of the costs associated with ensuring compliance with the exemptions, and any wider enforcement costs. For example, it would appear proportionate for the Department to provide an estimate of the cost of setting up and administering the system referred to on page 26.
Benefits. The Department describes anticipated benefits of the proposal at pages 16- 17. These include "…UK citizens whose welfare will be enhanced from the knowledge that the UK is playing its part to bring an end to the illegal trade in ivory…" and "A strong reputational benefit to the UK in showing international leadership…". The IA's assessment of benefits would benefit significantly from discussing in more detail the likely effectiveness of the proposal in reducing trade in new ivory, in the light of previous experiences. [emphasis supplied]
Consultation responses. The Department states that the "…overwhelming majority of respondents supported the implementation of a ban." (page 4). The IA would benefit significantly from including a summary of responses from businesses negatively affected by the proposal, such as antique dealers and auction houses, and how the Department has considered these in its IA.
Familiarisation costs. The Department states that "the time required for familiarisation will be 30 minutes per business" (page 20). As a one-off cost, even a significant increase in the assumed time spent on familiarisation would not affect the rounded EANDCB (the equivalent annual net direct cost to business). However, considering the potential complexity to be interpreted by businesses, particularly concerning the 'carefully targeted exemptions' within the legislation, the IA would benefit from providing evidence to support this assumption.
Small and micro-business assessment (SaMBA). The Department explains that survey evidence suggest that all antique dealers are small or micro businesses and that two large auction houses account for 53 per cent of the auction market. The Department addresses why an exemption would not be justified. The SaMBA would benefit from discussing possible mitigation measures, e.g. production of guidance material.
Exemptions. The Department states that it "… would not expect a large volume of (ivory) items to be sold by business to museums, so this exemption is unlikely to reduce the cost to business significantly." The IA would benefit from providing some indicative estimates of the scale of the impact of this and other exemptions, or at least a justification for this assumption.
Post implementation review (PIR). The Department should set out its plans to review/evaluate the ban, particularly how any unintended consequences would be investigated."
"What is the problem under consideration? Why is government intervention necessary?
Elephants are being poached and killed at unsustainable rates for their ivory. Although international conventions outlaw trade in recently poached ivory, the illegal trade and poaching has increased since 2007. UK Government intervention is necessary because international and domestic markets are not factoring in the total value of elephants to society or long-term conservation. The expectation is that the renewed UK leadership in this area and a commitment to close legal ivory markets would reduce the demand for ivory and thus the incentive to poach. It would also close loopholes in current legislation which present opportunities to launder poached ivory through legal markets, thereby indirectly encouraging continued poaching of elephants. Only Government can send a clear global signal that the trade in ivory is not acceptable and that the killing of elephants for their ivory will not be tolerated.
What are the policy objectives and the intended effects?
Ensure the UK plays a leading role in ending the illegal trade in ivory. A total ban on the commercial dealing of ivory in the UK that contributes directly or indirectly to elephant poaching would send the clearest possible signal that the UK does not tolerate the poaching of elephants for their ivory and demonstrates that we are world leaders in the fight against the ivory trade. Renewed UK leadership in this area will help encourage other countries to close their markets, reduce demand and stop poaching."
"Option 0: Represents the "do nothing" option of retaining the status quo. Currently, the international trade in ivory is controlled by rules set by the Convention on the International Trade in Endangered Species (CITES). These rules are implemented in the UK through EU Wildlife Trade Regulations.
Option 1: Proposal for a total ban on ivory sales in the UK, and proposal to prohibit the import and export of ivory for sale to and from the UK, including intra-EU trade to and from the UK, with strictly limited and, carefully targeted exemptions."
Impact of the Act
"6.1 Section 5 considered the economic impact on the values of holdings of works of art or antiques that contain ivory that would be banned by the Ivory Act. This is the most significant area of economic impact and the one covered to least effect in the Government's Impact Assessment. To understand the overall economic impact, we need to combine this with other effects.
6.2 Some of these cannot be estimated on the evidence we have. We know that some businesses will close and others will relocate; that some staff will be made redundant; and that some businesses will suffer a reduction in turnover and profit; and that some professionals such as restorers or academics will experience a reduction in demand for their services or struggle to continue with their work. But we cannot quantify any of these effects.
6.3 We know that businesses will have compliance costs, notably to familiarise themselves with the provisions of the Act themselves, and to explain these to potential customers. There will also be a 'chilling effect' whereby potential customers of items that would be exempt might decide to play safe and not purchase them. Again, these are impossible to quantify on the data we have.
6.4 We know that some dealers and collectors have suffered a loss through selling items at a lower price than would have prevailed had the ban not been announced. The survey evidence, adjusted for potential overstatement, is that this is £1,957,986 for those taking part. We would also expect that, where owners have sold off their holding, they are less likely to take part in this survey compared to those who still have substantial holdings and therefore have more of a stake in the issue. This sum is therefore likely to be a considerable understatement of the true loss. Applying the multiplier derived from the survey's reach for dealers as a whole of 12%, this leads us to conclude that the overall loss would be £16,316,550.
6.5 The Government's Impact Assessment proposed totals for the loss of profits arising from reduced turnover as £72.4 million over ten years. This is based on a lower figure for the number of dealers than we have relied upon in our analysis (2,482 compared to 4,000) and we think it is an underestimate of the true costs. We have not undertaken a separate computation, and have instead used the Government's figure, adjusted proportionately to match our assessment of the total number of dealers of 4,000. This gives a total loss of profits from reduced turnover over ten years of £116.7 million.
6.6 This gives a total for the economic impact that we are able to quantify as follows:
Loss already realised from sales £16M
Loss on holdings of musical instruments £1M
Loss on current holdings of other items containing ivory £256M [i.e. £32M + £233M]
Profits forgone over ten years £117M
Total quantifiable economic loss £390M"
i) Ms Rosemary Bandini, who deals in Japanese antiques including worked ivory, reports that her sales have "drastically reduced" and antique ivory is being sold at prices "far below" their values prior to the Ivory Act. She reports that she expects to be forced into early retirement, as it is impractical for her to relocate her business overseas given the travel and costs involved. She explains in her evidence that collectors of netsuke face an invidious choice between (a) keeping their collections in the UK and rendering them worthless once the Act is commenced, a cost that only the wealthiest collectors will be able to absorb; (b) disposing of their collections now at a significant loss of value; or (c) taking their collections out of the country, at significant cost, and thereby limiting the enjoyment that can be derived from them.
ii) Mr Paul Moss, a collector and former dealer in Chinese and Japanese works of art, reports that his former business is considering relocating outside the UK and that his personal collection of netsuke built over a lifetime, which he "cannot bear" to sell or part with, will be rendered financially worthless to his heirs.
iii) Mr Alastair Gibson, who deals in 19th century Chinese and Japanese antiques, has incurred the cost of relocating the majority of his stock overseas and may set up a new business abroad to continue to trade.
iv) Mr Thomas Heneage, a specialist in rare books, some of which have ivory in the bindings, clasps or contain ivory decorative panels, reports a fall in the level and value of sales and fears having to write off a proportion of his stock.
v) Mr Peter Garrod, a private collector of antique Japanese ivory objects for "over 40 years", faces the "total loss of value" of a collection that was intended to supplement his pension.
vi) Mr Gregory Moss, a private collector of walking canes, faces the "loss of retirement savings".
"The factors that affect the price of netsuke and motivate my customers' purchases are the skill of the carving, the object itself as a work of art, the artist or school and the provenance. The ivory content, or material from which the netsuke is carved, rarely, if at all, affects the price. In the cases where it is the ivory that motivates the purchase, it is for aesthetic and historic purposes, for example to ensure that the material composition of a collection is balanced, not for potential reworking."
and Mr Moss:
"Of course, many netsuke are exquisitely beautiful, and it is important to point out that netsuke enthusiasts do not look at or evaluate or desire or buy a netsuke because it is made or ivory. They appreciate it, or love it, because of the artistry and craftsmanship. In 46 years of trading, I have never come across a buyer who bought a netsuke because they thought of the ivory as a commodity. This is demonstrated by the lack of price differential in the netsuke market between ivory netsuke and comparable netsuke carved of other materials."
Neither of these mention the word "patina", which I suspect may have a role to play in relation to valuation; but I leave that matter there.
The Specific Objectives pursued by the Act
(i) By reducing further or eliminating any opportunity there may be for illegal ivory, including recently poached ivory, to be traded through markets for ivory items, including antique ivory items, in the UK;
(ii) By reducing further or eliminating the contribution made by ivory items from the UK, including antique ivory items, in supporting or sustaining demand for ivory items in other consumer markets, which may also support the illegal trade in ivory including the poaching of elephants;
(iii) By demonstrating that the UK is willing to close down the commercial trade in items which may be valued for their ivory content, including antique ivory items, thereby setting an example of leadership and contributing to achieving this change; and
(iv) By supporting those countries which have already taken action, in particular by closing their domestic markets for ivory items to the greatest extent so as to reduce demand for ivory items in those markets and associated markets and reduce incentives to obtain illegal ivory, including recently poached ivory.
By reducing further or eliminating any opportunity there may be for illegal ivory, including recently poached ivory, to be traded through markets for ivory items, including antique ivory items, in the UK
"20. Whilst most of the UK's ivory trade is legal, the UK has featured in several "cluster analyses" of ivory seizure data by CITES's "Elephant Trade Information System" (ETIS) since 2002, suggesting that "the UK has consistently played a role in illegal ivory trade globally". Between 2010 and 2014, some 154 seizure records were reported by the UK to ETIS, a considerable increase on the previous five-year period, although less in volume terms than Germany and France. Seizures were made not only in the UK, but also in other countries that involved the UK either as a country of export, re-export, transit, or destination … [I set out the remainder of this paragraph below]
29. Despite existing legal restrictions, the UK ivory goods market is vulnerable to being unable to distinguish between legal and illegal trade, because only goods which have been worked before 1947 can be sold and exported without a permit. Although the UK ivory market has not been directly linked to the trade in recently poached ivory, sales of more recent ivory products and particularly raw tusks potentially present a greater risk in terms of opportunity to pass off illegally-sourced ivory as legitimate. The coexistence of legal and illegal ivory in the market creates confusion and some consumers might think they are buying something legal when that is not the case. This is the economic problem of asymmetric information between buyers and sellers potentially creating economically inefficient outcomes. [emphasis supplied]
31. The antique trade relies on the seller correctly and honestly assessing the ivory to be pre-1947 and worked. It is disproportionately costly for the trade to use scientific testing such as carbon dating as a means of establishing an item to be worked pre-1947. The cost of testing (£400 or more) is more than the value of many items on sale and re-quires extracting a sample from the item which can also irreparably damage small or fine items due to the size of the sample needed. Carbon dating is also far less accurate with regard to items created after 1945, due to the atmospheric impacts of the atomic bombs dropped at Hiroshima and Nagasaki.
32. Recent research highlights the fault lines in the domestic ivory trade. For example, in field research by Traffic, casual ivory market traders had limited awareness of legal requirements regarding ivory. Whilst all traders understood that there was a cut-off year for what was considered "antique" (ivory acquired and worked before 1947), some did not know which year this applied to (p.19). The University of Portsmouth interviewed dealers who "stated that they either know of dealers or auctioneers who would sell post-1947 ivory, or that they had witnessed illegal ivory being sold in the UK" (p.53). Similar issues were highlighted by Two Million Tusks, who found that many auction houses were unable to comply with the legal requirement to demonstrate proof of age for all ivory pieces dated pre-1947.
Increase illicit trade and poaching
56. Legal ivory trade can increase the illicit trade and poaching because:
a) There is confusion whether antiques contain illegal ivory or not. Banning trade will increase the stigma of buying ivory reducing demand in both the legal and illegal markets. Also, those who buy ivory as an investment will cease to do so if they have concerns around whether they can find a market outlet for it.
b) There is suggestive evidence that legal ivory is used by smugglers to mask the illicit ivory trade (see paragraph 30). Smugglers use legal permits to launder the product of elephant poaching by increasing the quantity over what was originally certified in permits to trade ivory or by using these permits several times. As the legal market shrinks and permits become more exceptional, laundering illegal ivory becomes more difficult and expensive.
c) As the amount of legal ivory diminishes and becomes more easily identifiable monitoring and enforcing becomes easier."
"Various studies, including investigations conducted by EIA in key ivory markets, show that a legal domestic ivory market provides opportunities for laundering of illegal ivory, further fuelling the elephant poaching crisis. It is very difficult to differentiate illegal ivory from legal ivory and traffickers use various techniques to launder illegal/new ivory by making it look legal/old/antique" [emphasis added].
"[The authors] contacted 72 auction houses about 180 ivory lots for sale and for the vast majority (90%) of the lots, the auction houses were unable to comply with the legal requirement to demonstrate proof of age for all ivory pieces dated pre-1947. Worryingly, an auction even included an illegal raw tusk and unworked ivory, ready to go under the hammer and then be exported, without any checks.
Our second study proved how insignificant ivory sales are to many UK auction houses. Out of 232 auction houses surveyed in late 2016-early 2017, ivory lots formed only 0.70% of the total number of lots for sale. An update in Spring 2017 involving 301 auction houses found a similar figure of 0.76%."
"Within Europe, it is still legal to trade worked ivory originally acquired before 1947 without restriction. For the first time, this study shows that this legal trade is covering up an illegal trade. There is a widespread practice in countries across Europe of selling 'antique' ivory that actually dates from much later – and this illegal trade includes ivory from elephants poached and slaughtered in the last few years ….
The study shows, without doubt, that recently poached ivory is being sold across Europe … The study found in Bulgaria, Spain, and Italy, all the pieces tested were illegal, and in France, the Netherlands, and Portugal, the large majority were illegal. Illegal items were found to be sold by antique shops as well as private sellers."
"Key findings … [l]inks with the current elephant poaching crisis appear tenuous at best, as researchers found no new or raw (unworked) ivory for sale, and only one item that was reportedly after the 1947 cut-off date for antique ivory. …
Seizure data show that the UK is also an import, re-export and/or transit country for illegal ivory, with an increase in ivory seizure records reported by the UK in recent years (an average of 15 annual seizure records, totalling 134 kg raw ivory equivalent reported for 2010-2014). There have been a number of seizures of new and/or antique carved items – in 2015, the UKBF recorded over 150 seizures of ivory carvings in postal parcels en route to China, through targeted inspections and searches."
"Seizure data also show that the UK plays a role in illegal ivory trade, at both import and re-export, but in particular as a transit country, with ivory seizures reported by the UK having increased in recent years" [emphasis added].
The "in particular", so the argument runs, indicates that this phenomenon is not limited to the UK's role in being a transport hub. The Claimant observes that this contention is inconsistent with footnote 16 to the IA:
"According to the [TRAFFIC] report, the role of the UK in the ivory trade is that of a transit country. This means that the UK is not the final destination for most of the ivory going through its ports and airports but an intermediate step in its voyage to Asia. However, the quantity of ivory taking this route is small."
By reducing further or eliminating the contribution made by ivory items from the UK, including antique ivory items, in supporting or sustaining demand for ivory items in other consumer markets, which may also support the illegal trade in ivory including the poaching of elephants
The prevalence of exports of legal ivory from the UK to other countries
"33. Furthermore, worked ivory products from the UK can currently be sent to key consumer markets with the relevant CITES permit. These same consumer markets are a frequent destination for freshly poached and illegally-sourced ivory, so any supply of UK worked ivory items, and particularly more recent items, to these markets may become mixed with illegally-sourced ivory, supporting demand which drives poaching and illegal trade."
"- the UK exported 370 per cent more ivory items globally than the next highest exporter, the USA;
- the UK occupied the top spot in the list of largest ivory exporters for each year except 2015, when it was second only to Italy;
- UK ivory exports to Hong Kong and China increased dramatically over the period, while exports to the USA plummeted as the US Government introduced greater restrictions on international and domestic ivory trade."
"According to CITES exporter data, the UK was a net (re-)exporter of ivory for commercial purposes over the last decade: 990 kg and ~54,000 specimens of ivory were re-exported for commercial purposes between 2005 and 2014. In total, the UK's re-exports of commercial ivory made up 31% of the total EU re-exports during this period. The majority of commercial trade reported by the UK for 2005–2014 was in worked ivory (carvings), with only 2% involving raw ivory."
"In 2004, buyers of ivory antiques at London's physical markets were dominated by American and European tourists, but in 2016 traders reported that travellers/citizens from East Asian countries/ territories (including mainland China, Japan and Hong Kong) are increasingly purchasing ivory in the UK. According to ivory dealers, the craftsmanship, style of carving and the era and/or provenance of antiquity were considered the primary indicators of quality and value in the UK's antiques products, rather than the material the item was composed of. Correspondingly, there was little difference in price between products made with ivory or other materials.
The principal destinations for ivory re-exported from the UK over the last decade were the USA, mainland China, Australia, Switzerland and Canada. However, the number of actual specimens reportedly re-exported to the USA has nearly halved between 2005–2009 and 2010–2014 (from ~19,000 to ~11,000) and the number re-exported to mainland China increased from ~2,000 to ~11,000. Information collected from traders in the 2016 survey support this shift in principal destinations for antique ivory items."
The prevalence of exports of illegal ivory from the UK to other countries
"Data over this timeframe indicates a large increase in the number of times items seized between 2014 and 2015. This is likely the result of a targeted inspections and searches by the UK Border Force for ivory carvings in postal parcels en route to China where over 150 seizures were recorded in this operation as well as a single seizure of 110kg of ivory at Heathrow Airport. The weight of items containing ivory varies year on year, however a significantly higher seizure volume was reported in 2015. This is the result of a single large seizure of 110kg of ivory, including tusks, carved bangles and beads, at Heathrow in transit from Angola. This single seizure of ivory was larger in volume than that of the annual seizures in the previous 10 years.
The UK market for ivory items, albeit for antique ivory, is in global terms surprisingly large. This is primarily a factor of the success and international renown of the UK arts and antiques sector. A survey conducted in 2004 found that the UK has the greatest number of outlets openly selling ivory products in the world, and ranked ninth in terms of the number of items available.
It is extremely difficult to differentiate illegal ivory and legal ivory, with the UK Border Force having seized numerous ivory items which have been subject to artificial stains or aging techniques. Furthermore, studies have shown where outlets offering legal and illegal ivory side-by-side, revenue and projects become intermingled and difficult to separate. The legal market therefore presents an opportunity for criminals to launder recently poached ivory as old ivory products. The Bill will remove this opportunity." (footnotes omitted)
The interrelationship between demand for legal and illegal ivory
"while a ban will not help the elephants that supplied the ivory used in the antiques, the UK ban is an important element to the international response to bring down poaching of elephants for their ivory. Though the major flows of newly poached ivory supply the current markets in Asia, the regulatory and enforcement efforts in those countries may be confused by on-going re-exports of older items from Europe and the US."
"4.1. Ivory values from the Chinese perspective
Chinese society attaches diverse values to ivory: economic, social, cultural, aesthetic, religious, and medical. These different values give us insight into ivory consumers' motivations.
First, the economic value of ivory products as an investment is widely advertised on the market. Almost every shop that Gao visited, ivory sellers talked of ivory as "bao jia" (inflation-proof) and "zeng zhi" (value appreciation). As well, investment is emphasized in articles by carvers and collectors (e.g., Gao and Zheng, 2012).
Second, the social value of ivory, both as monetary wealth and a status symbol, as historically only a privileged few people owned ivory. Today, possessing an ivory carving, especially high-end ivory, gives owners a sense of prestige (or "face").
Third, carvers and collectors cherish ivory for its cultural and aesthetic value as historic fine art. Some respondents complained that the market overemphasizes ivory's rarity, while neglecting its artistic quality (Gao and Zheng, 2012). These sources noted that machine-produced ivory products, such as chopsticks and bangles, contribute little to the preservation of the ivory craft. Yet, culture preservation is hardly a concern for most average consumers of low-end ivory products. These buyers purchase ivory trinkets often simply because of ivory's beauty and its relative affordability, compared to other more luxurious products.
Fourth, religious and traditional beliefs is also an important motivation for consumers. Ivory is believed to be of "intelligence" ("Ling Xing," a complicated Buddhism concept). Ivory beads are used to make Buddhism prayer's bracelets. Ivory pendants with Buddha images and figurines of religious icons, such as "Guan Yin," are often seen in the offline and online markets. Additionally, it is believed by some that ivory exorcises evil spirits ("Bi Xie"). Some people also make the link between "xiang ya" (elephant ivory) and "ji xiang" (auspicious), and believe ivory can bring good fortune. Lastly and least importantly, some people buy ivory because of its medical value. Ivory powder is used in traditional Chinese medicine (Lin, 1998), and some people believe that ivory bangles can purge toxins from the body, thus keeping wearers healthy."
"… annual poaching rates in 53 sites strongly correlate with proxies of ivory demand in the main Chinese markets, whereas between-country and between-site variation is strongly associated with indicators of corruption and poverty."
(i) Two Million Tusks' consultation response relating to the Ivory Bill noted: "At the recent APPG Endangered Species meeting James Lewis – Auctioneer spoke about the demand for billiard balls in Asia. The balls are reworked as highly desirable and easily saleable puzzle balls."
(ii) WWF-UK's consultation response noted: "it is important that a restriction on the volume of ivory is included so as to limit the amount of solid pieces being traded, which could be desired or recarved by consumers of ivory who are stimulating illegal trade".
"International trade of ivory was banned in 1989, with global elephant poaching data collected by field researchers since 2003. A one-time legal sale of ivory stocks to China and Japan in 2008 was designed as an experiment, but its global impact has not been evaluated. We find that international announcement of the legal ivory sale corresponds with an abrupt ~66% increase in illegal ivory production across two continents, and a possible ten-fold increase in its trend. An estimated ~71% increase in ivory smuggling out of Africa corroborates this finding, while corresponding patterns are absent from natural elephant mortality, Chinese purchases of other precious materials, poaching of other species, and alternative explanatory variables. These data suggest the widely documented recent increase in elephant poaching likely originated with the legal sale. More generally, these results suggest that changes to producer costs and/or consumer demand induced by legal sales can have larger effects than displacement of illegal production in some global black markets, implying that partial legalization of banned goods does not necessarily reduce black market activity.
The notion of competitive displacement suggests black market demand should fall because some demand is satisfied in the legal market, however demand could also rise if new consumers are brought into the market when legalization occurs. This could occur if observable legal consumption alters social norms so that stigma associated with consuming illegal versions of the good falls. It also might occur if the risk of legal penalty for consuming the illegal good falls, due to masking on the supply side. Finally, it might also be the case that consumers misunderstand which versions of a good are legal vs. illegal, and they participate as consumers in the black market by mistake. All of these effects suggest … where the differential accounts only for these direct effects on demand and not for any displacement effects. In the context of the legal ivory sale, there is some indication that this demand effect plays a role. For example, a Chinese newspaper (Qilu Weekly, January 25, 2014) stated that the sale "stimulated new consumption instead of slowing down illegal ivory trades," and the executive director of the Environmental Investigation Agency argued that "allowing many tonnes of ivory to enter the marketplace with CITES' blessing has served only to boost the illegal trade, confusing consumers as to whether ivory is legal or illegal. Far from satisfying demand, the increased availability of ivory...has only spurred consumer appetite" (Rice, 2012)."
By demonstrating that the UK is willing to close down the commercial trade in items which may be valued for their ivory content, including antique ivory items, thereby setting an example of leadership and contributing to achieving this change
"20. … the importance of taking action on the UK domestic ivory market goes beyond its current weight in ivory trade flows: it would send the clearest possible signal that the UK does not tolerate the sale of ivory and takes the strongest possible position against the ivory trade. This will enable the UK to influence other countries, especially those with larger ivory markets, to take action; and to remove any basis of the currently legal ivory trade providing a cover for illegal trade."
6.19 The committee is supportive of the framework introduced by the UK government, which is currently being considered by the UK Parliament. This framework, the strongest of its kind, seeks to put an end to the domestic trade in elephant ivory within the UK by introducing a near complete ban with limited exemptions. As outlined in chapter 3, these exemptions include a de minimis exemption, and exemptions for musical instruments, portrait miniatures, items deemed the rarest and most important items of their type, and transactions between accredited museums.
6.20 Whilst the majority of advocates for a domestic trade ban fully supported the proposed exemptions, others called for more generous exemptions, or the application of a complete ban with no exemptions included.
6.21 The committee considers that a framework similar to that in the UK, including exemptions, is suitable for Australia, applicable to both elephant ivory and rhino horn."
"In the New Year , the Government will act on our plans for a British ban on domestic ivory sales …
My aim is to make 2018 the year of UK leadership in defeating the ivory trade: wherever I go as Foreign Secretary and whenever I meet the representatives of a relevant country, I will repeat our message.
I did just that when I saw the Japanese foreign minister, Taro Kono, here in London earlier this month. Japan has a large domestic ivory market and its government could play a key role in stamping out elephant poaching.
I've instructed our diplomats in embassies across the world to have frank conversations with our friends and allies."
"The decisive battle against the ivory trade will be won in China and the rest of the Far East, through changing attitudes. The growing readiness of the Chinese authorities to give a lead and clamp down on ivory dealers is of huge importance. In the rest of the world, we have to do everything we can to help with that.
… We British have been at the forefront of this fight. But now, in the absence of government action to close our ivory market, we are in danger of lagging behind. The UK is, embarrassingly, among the largest remaining ivory markets in the world. We still allow domestic trade in ivory with a certificate, as well as the trading and exporting of ivory said to originate before 1947, without any official certification."
"the US (and indeed forthcoming UK) bans are vital elements to the international response: it may not be those markets where the demand is currently highest, but the act of making and implementing these bans is hugely symbolic."
By supporting those countries which have already taken action, in particular by closing their domestic markets for ivory items to the greatest extent so as to reduce demand for ivory items in those markets and associated markets and reduce incentives to obtain illegal ivory, including recently poached ivory.
"Response in Other Countries
16. In response to the current poaching crisis, several countries have imposed stricter measures on the ivory trade in an effort to preserve wild elephants. In February 2015 China – the world's largest market for ivory - imposed a one year ban on the import of African elephant ivory carvings (not including pre-Convention items) and from March 2016 the ban also included pre-Convention tusks, ivory products and hunting trophies. As of 2018, all trade in ivory and ivory products in China is illegal.
17. In June 2016, the USA introduced new restrictions on imports and exports of ivory items and banned trade between States for antiques less than a hundred years old. In June 2016, Hong Kong proposed to phase out domestic ivory trade in five years and banned international trade of pre-Convention ivory. In Europe, France and Germany no longer issue re-export certificates for pre-Convention raw ivory and in January 2014 the European Parliament called on Member States to "introduce moratoria on all commercial imports, ex-ports and domestic sales and purchases of tusks and raw and worked ivory products until wild elephant populations are no longer threatened by poaching".
18. In May 2017, the European Commission published guidelines recommending Member States suspend re-exports of raw ivory to non-EU countries from 1st July 2017, and ensure a strict interpretation of the provisions in EU law relating to intra-EU trade in ivory and the (re)export of worked ivory. The Commission has also recently consulted on the nature of the EU ivory trade, to inform development of possible additional measures at EU level." (footnotes omitted)
"... this far-sighted decision by China's leaders signifies something even more important, namely the emergence of a global consensus that buying or selling ivory is no longer acceptable anywhere. Saving elephants is not some Western obsession, but a cause that unites humanity."
The Exemptions to the Act
"It was considered appropriate to apply narrow and limited exemptions to this ban, in circumstances where the sale of those exempted items does not contribute directly or indirectly to the poaching of elephants or illegal trade and where the intrinsic value of the item is not due to its ivory content, i.e. where the extent of the exemption did not otherwise undermine the aims of the legislation."
(i) in relation to section 2 (pre-1918 items of outstandingly high artistic, cultural or historical value), the narrowness of the exemption, albeit one not so narrow that all netsuke will fail to benefit from it, means that it is more clearly demonstrable that the items within its compass are not being valued for the reason that they contain ivory.
(ii) in relation to section 6 (pre-1918 portrait miniatures), the ivory at issue is a wafer-thin "sliver" covered in a painting. Hence, the ivory is not visible, the item could not be valued primarily for its ivory content, it is not a "celebration" of the substance, and there is no scope for recarving.
(iii) in relation to section 7 (the de minimis exemption for pre-1947 objects), it is clear that the item does not contain modern ivory and is not being valued primarily for its ivory content.
(iv) in relation to section 8 (pre-1975 musical instruments), this creates a distinct and discrete category of items highly unlikely to be celebrated for their ivory content.
The Consideration Given by Defra to the Possibility of Equally Effective Measures
"These suggested measures, and the Claimant's suggested measures, appear to be aimed at addressing the risk of modern ivory being 'passed off' as antique. However, they do not address the other policy aims of the ban in the Act (if at all). A system of age verification would not, for example, reduce to the same extent as the Act the contribution made by ivory items from the UK in sustaining demand for ivory items (including antique items) in other consumer markets and it would not provide a basis for encouraging other countries to close down their domestic ivory markets.
As to a certification scheme for pre-1947 ivory: while it might (other things being equal) help to reduce the risk of laundering of modern ivory, it would be a similar exemption to that already in place under the EU Regulations. It would not, therefore, go much further to reduce the market and the ivory being sold and exported internationally. It would not achieve the wider aims of the Act.
The Government considered and rejected a certification scheme for all exempt items. Certification requires a substantive advance assessment by government-appointed body of each exempt item. In contrast a registration system places the onus on the applicant to make an accurate declaration. For the Act, a registration system was chosen for the exemptions (apart from [the section 2] exemption which requires certification)."
The EU Regime Explained More Fully
"The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties."
and Article 5(4) states:
"Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Union."
1. This Treaty organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences.
2. This Treaty and the Treaty on European Union constitute the Treaties on which the Union is founded. These two Treaties, which have the same legal value, shall be referred to as "the Treaties".
1. When the Treaties confer on the Union competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;…(e) environment;
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
1. Union policy on the environment shall contribute to pursuit of the following objectives:
- preserving, protecting and improving the quality of the environment,
- promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
2. Union policy on the environment shall aim at a high level of precaution taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
1. The European Parliament and the Council … shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.
The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission."
For the purposes of this Regulation:
(w) 'worked specimens that were acquired more than 50 years previously' shall mean specimens that were significantly altered from their natural raw state for jewellery, adornment, art, utility, or musical instruments, more than 50 years before the entry into force of this Regulation and that have been, to the satisfaction of the management authority of the Member State concerned, acquired in such conditions. Such specimens shall be considered as worked only if they are clearly in one of the aforementioned categories and require no further carving, crafting or manufacture to effect their purpose;
[the effect of this provision is that CITES Appendix 1, which includes elephants, is transposed into Annex A]
[the effect of this provision is that export or re-export from the Union of specimens of the species listed in Annex A may be authorised by the grant of an export permit subject to the fulfilment of a list of conditions including, amongst others, (i) that a competent scientific authority has advised that the export of specimens of the species will not have a harmful effect on the conservation status of the species, and (ii) that it has been adequately proven that the age-limits have been satisfied. This first criterion does not apply to pre-1947 worked specimens (Article 5(6)(i)) but this second criterion does. Further, there is a criterion (Article 5(2)(d)) applying to all ivory specimens, raw and worked, to the effect that Member States must be satisfied following consultation with the competent scientific authority that there are no other factors relating to the conservation of the species which militate against issuance of the export permit.]
Provisions relating to the control of commercial activities
1. The purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited.
2. Member States may prohibit the holding of specimens, in particular live animals of the species listed in Annex A.
3. In accordance with the requirements of other Community legislation on the conservation of wild fauna and flora, exemption from the prohibitions referred to in paragraph 1 may be granted by issuance of a certificate to that effect by a management authority of the Member State in which the specimens are located, on a case-by-case basis where the specimens:
(a) were acquired in, or were introduced into, the Community before the provisions relating to species listed in Appendix I to the Convention or in Annex C1 to Regulation (EEC) No 3626/82 or in Annex A became applicable to the specimens; or
(b) are worked specimens that were acquired more than 50 years previously; or
(c) were introduced into the Community in compliance with the provisions of this Regulation and are to be used for purposes which are not detrimental to the survival of the species concerned; or
(d) are captive-born and bred specimens of an animal species or artificially propagated specimens of a plant species or are parts or derivatives of such specimens; or
(e) are required under exceptional circumstances for the advancement of science or for essential biomedical purposes pursuant to Council Directive 86/609/EEC of 24 November 1986 on the approximation of laws, regulations and administrative provisions of the Member States regarding the protection of animals used for experimental and other scientific purposes where the species in question proves to be the only one suitable for those purposes and where there are no specimens of the species which have been born and bred in captivity; or
(f) are intended for breeding or propagation purposes from which conservation benefits will accrue to the species concerned; or
(g) are intended for research or education aimed at the preservation or conservation of the species; or
(h) originate in a Member State and were taken from the wild in accordance with the legislation in force in that Member State.
4. General derogations from the prohibitions referred to in paragraph 1 based on the conditions referred to in paragraph 3, as well as general derogations with regard to species listed in Annex A in accordance with point (ii) of Article 3(1)(b) may be defined by the Commission. Any such derogations must be in accordance with the requirements of other Community legislation on the conservation of wild fauna and flora. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).
5. The prohibitions referred to in paragraph 1 shall also apply to specimens of the species listed in Annex B except where it can be proved to the satisfaction of the competent authority of the Member State concerned that such specimens were acquired and, if they originated outside the Community, were introduced into it, in accordance with the legislation in force for the conservation of wild fauna and flora.
6. The competent authorities of the Member States shall have discretion to sell any specimen of the species listed in Annexes B to D they have confiscated under this Regulation, provided that it is not thus returned directly to the person or entity from whom it was confiscated or who was party to the offence. Such specimens may then be treated for all purposes as if they had been legally acquired.
Validity of and special conditions for permits and certificates
1. Without prejudice to stricter measures which the Member States may adopt or maintain, permits and certificates issued by the competent authorities of the Member States in accordance with this Regulation shall be valid throughout the Community.
2. The Commission shall adopt the measures referred to … Article 8(4), ... Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3)."
"General exemptions from Article 8(1) and (3) of Regulation (EC)No 338/97
The provision laid down in Article 8(3) of Regulation (EC) No 338/97, to the effect that exemptions from the prohibitions in Article 8(1) are to be granted by the issue of a certificate on a case-by-case basis, shall not apply to, and no certificate shall be required for, the following:
(1) specimens of captive born and bred animals of the species listed in Annex X to this Regulation, and hybrids thereof, provided that specimens of annotated species are marked in accordance with Article 66(1) of this Regulation;
(2) artificially propagated specimens of plant species;
(3) worked specimens that were acquired more than 50 years previously as defined in Article 2(w) of Regulation (EC) No 338/97."
"An examination of Article 8 of the Principal Regulation and Article 62 of the Subsidiary Regulation leads one to no other interpretation than that these provisions confer rights which are immediately cognisable on the basis that they are the complete/exhaustive set of rules. An individual is entirely free to trade (see Article 36 TFEU) subject only to fulfilling Article 2(w)."
"It should be noted, second, that with respect to the species to which [the 1982 Regulation] and [the Principal Regulation] applies, those regulations do not preclude stricter measures which may be taken or maintained by Member States in compliance with the provisions of the Treaty. The introduction or maintenance of such measures is provided for, as regards [the 1982 Regulation], in Article 15 thereof, and as regards [the Principal Regulation], which was adopted on the basis of Article 130s(1) of the EC Treaty …, in Article 130t of the EC Treaty …, which provides that the protective measures adopted pursuant to Article 130s are not to prevent any Member State from maintaining or introducing more stringent protective measures which must be compatible with the Treaty."
The Claimant's Case
"national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it."
It may be seen that the EU approach differs slightly from Professor Barak's inasmuch as "justified by imperative requirements" is conceptualised here as separate from the proportionality principle: see also R (Lumsdon) v Legal Services Board  UKSC 41,  AC 697, §§33 and 53. In practice this matters not, because the justification question must be addressed at some stage of the inquiry, and in the circumstances of the present case it is not in issue, it being accepted by the Claimant that there is an imperative requirement in the general interest to endeavour to protect dwindling elephant populations. §33 of Lumsdon also noted that there is "some debate" as to whether the proportionality principle encompasses what is Professor Barak's fourth item. It does, as I have pointed out, feature in Mr de la Mare's skeleton argument, and I am content to address it separately in line with the Supreme Court's recommendation in that paragraph.
"53. Such legislation, adopted in a field in which secondary Community law does not preclude a Member State from taking measures stricter than those provided for by that law, and liable to have a restrictive effect on imports of the products, is compatible with the Treaty only to the extent that it is necessary for effectively achieving the objective of the protection of the life and health of animals. A national rule cannot therefore benefit from the derogation provided for in Article 36 of the Treaty if the health and life and animals can be protected just as effectively by measures which are less restrictive of intra-Community trade …"
"… Although private interests may be engaged, the court is there concerned first and foremost with a freedom guaranteed in the interests of promoting the interests of the single market, and the related social values, which lie at the heart of the EU project. … In that context, the court, seeing itself as the guardian of the Treaties and of the uniform application of EU law, generally applies the principle more strictly. Where, however, a national measure does not threaten the integration of the single market, for example because the subject matter lies within an area of national rather than EU competence, a less strict approach is generally adopted. …"
Sir James submitted that the instant case requires a less strict approach because we are no longer in the zone of shared competence. I cannot agree with that. A national measure which goes further than EU secondary legislation because it is expressly sanctioned by the Treaty does not displace the shared competence of Member States and the EU: rather, it is a manifestation of this competence. I believe that I have already said this in connection with Ground 1, accepting as I have Sir James' submissions on the issue. It follows that the starting point must be that a stricter approach to proportionality is applicable.
"81. There is some force in the point made by Lord Carloway; and it is difficult to discern in the court's case law any clear indication that the identity or status of the national authority whose action is under review is a factor which influences the intensity of scrutiny. On the other hand, we would not rule out the possibility that whether, for example, a measure has been taken at the apex of democratic decision-making within a member state might, at least in some contexts, be relevant to the assessment of its proportionality, particularly in relation to the level of protection considered to be appropriate and the choice of method for ensuring it. It is however unnecessary to resolve that question for the purposes of the present appeal."
An Act to prohibit dealing in ivory, and for connected purposes.
[20th December 2018]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1 Prohibition on dealing in ivory
(1) Dealing in ivory is prohibited.
(2) "Dealing" in ivory means—
(a) buying, selling or hiring it;
(b) offering or arranging to buy, sell or hire it;
(c) keeping it for sale or hire;
(d) exporting it from the United Kingdom for sale or hire;
(e) importing it into the United Kingdom for sale or hire.
(3) For the purposes of this section—
(a) buying includes acquiring for valuable consideration;
(b) selling includes disposing of for valuable consideration;
(c) offering includes advertising and inviting to treat.
(4) In subsection —
(a) a reference in paragraph (b) to buying or hiring ivory does not include buying ivory, or hiring it as the borrower, outside the United Kingdom;
(b) a reference in paragraph (b) or (c) to selling or hiring ivory includes selling ivory, or hiring it as the lender, outside the United Kingdom.
(5) In this section "ivory" includes—
(a) an item made of ivory;
(b) an item that has ivory in it.
(See further section 37.)
(6) Sections 2 and 6 to 9 set out exceptions to the prohibition.
Exemption for outstandingly valuable and important pre-1918 items
2 Pre-1918 items of outstanding artistic etc value and importance
(1) An item that is made of ivory, or has ivory in it, is exempt from the prohibition if—
(a) the Secretary of State has issued a certificate under this section (an "exemption certificate"), and
(b) the certificate has not been revoked under section 4(3).
This is subject to section 4(7).
(2) The Secretary of State may issue an exemption certificate for an item only if satisfied that—
(a) the item is pre-1918, and
(b) the item is of outstandingly high artistic, cultural or historical value.
(3) The following matters are to be taken into account in considering whether the condition in paragraph (b) of subsection (2) is satisfied in the case of a particular item—
(a) the rarity of the item;
(b) the extent to which the item is an important example of its type;
(c) any other matters specified in regulations made by the appropriate national authority.
(4) An exemption certificate for an item may be issued only on the application of the owner of the item.
(5) The appropriate national authority may by regulations prescribe institutions that, in the authority's opinion, possess the necessary knowledge and expertise to provide the Secretary of State with advice on applications for exemption certificates.
In this Act "prescribed institution" means an institution prescribed under this subsection.
(6) An institution may be prescribed under subsection (5) only with the consent of the persons in charge of the institution.
3 Applications for exemption certificates
(1) A person applying for an exemption certificate for an item must—
(a) give the name and address of the owner of the item,
(b) provide a description of the item and of any distinguishing features that it has,
(c) provide a photograph of the item showing any such features,
(d) make a declaration that, in the applicant's opinion, the item satisfies the conditions in paragraphs (a) and (b) of section 2(2),
(e) provide an explanation as to why the applicant is of that opinion,
(f) provide information about any dealing in the item that is expected to take place,
(g) provide any other information specified in regulations made by the appropriate national authority, and
(h) pay to the Secretary of State any fee prescribed by regulations made by the Secretary of State.
(2) The Secretary of State must refer an application for an exemption certificate to a prescribed institution if satisfied that—
(a) the applicant has complied with subsection (1), and
(b) the item is not one that clearly fails to satisfy the conditions in paragraphs (a) and (b) of section 2(2).
Otherwise the Secretary of State must refuse the application and inform the applicant why it has been refused.
(3) Where an application is referred to a prescribed institution under subsection (2), an individual nominated by the institution ("the assessor") must—
(a) inspect and assess the item,
(b) notify the Secretary of State whether or not, in the assessor's opinion, the item satisfies the conditions in paragraphs (a) and (b) of section 2(2), and
(c) notify the Secretary of State of the assessor's reasons for forming that opinion.
(4) An institution may nominate an individual under subsection (3) only with the individual's consent.
(5) The Secretary of State must reimburse the reasonable costs of the prescribed institution or the assessor in dealing with an application referred under subsection (2).
(6) Having considered the assessor's opinion, the Secretary of State—
(a) must grant the application for an exemption certificate if the Secretary of State is of the opinion that the item satisfies the conditions in paragraphs (a) and (b) of section 2(2);
(b) otherwise, must refuse the application and inform the applicant why it has been refused.
(7) If the application is granted, the Secretary of State must provide the applicant with an exemption certificate.
4 Further provision about exemption certificates
(1) An exemption certificate must—
(a) contain a unique number (or combination of letters and figures);
(b) contain enough information to identify (so far as possible) the item to which it relates.
(2) Where an exemption certificate has been issued for an item and—
(a) the owner of the item becomes aware that any relevant information relating to the item is inaccurate or incomplete, or
(b) any such information becomes inaccurate or incomplete,
the owner must notify the Secretary of State accordingly and must provide the Secretary of State with the necessary information to make good the inaccuracy or incompleteness.
(3) The Secretary of State may revoke an exemption certificate if it appears to the Secretary of State that—
(a) the item concerned does not satisfy the conditions in paragraphs (a) and (b) of section 2(2), or
(b) the owner of the item has failed to comply with subsection (2) above.
(4) The Secretary of State may issue a revised exemption certificate if it appears to the Secretary of State that any relevant information relating to the item concerned is, or has become, inaccurate or incomplete.
(5) The Secretary of State may provide a person with a new exemption certificate (a "replacement certificate") if—
(a) an exemption certificate has been lost,
(b) a person acquires an item in respect of which an exemption certificate has been issued but is unable to obtain that certificate from the previous owner, or
(c) it seems to the Secretary of State to be appropriate for any other reason to provide a replacement certificate.
(6) Section 3 does not apply to an application for a replacement certificate.
(7) Where a person (P) deals in an item in respect of which an exemption certificate was issued to a different person, the exemption under section 2 applies only if—
(a) P has taken possession of the certificate or has been provided with a replacement certificate in respect of the item, and
(b) P has provided the Secretary of State with any specified information and has paid to the Secretary of State any fee prescribed by regulations made by the Secretary of State.
(8) In this section—
• "information" includes any declaration or photograph;
• "relevant information" means any information given to the Secretary of State under section 3 or this section;
• "specified information" means information specified in regulations made by the appropriate national authority.
5 Fresh applications and appeals
(1) Where an application for an exemption certificate is refused or an exemption certificate is revoked, the owner of the item concerned—
(a) may make a fresh application;
(b) may appeal to the First-tier Tribunal against the refusal or revocation.
(2) A fee prescribed under section 3(1)(h) must be the same for a fresh application under subsection (1)(a) as for a first application.
(3) An appeal under subsection (1)(b) may be on the ground—
(a) that the decision was based on an error of fact,
(b) that the decision was wrong in law, or
(c) that the decision was unreasonable,
or on any other grounds that are prescribed by regulations made by the appropriate national authority.
(4) On an appeal under subsection (1)(b), the First-tier Tribunal may—
(a) confirm the Secretary of State's decision to refuse or revoke the exemption certificate,
(b) require the Secretary of State to issue an exemption certificate, or to cancel the decision to revoke an existing exemption certificate, or
(c) remit the decision to refuse or revoke the exemption certificate to the Secretary of State for reconsideration.
(5) The appropriate national authority may by regulations make further provision about appeals under subsection (1)(b).
(6) The Secretary of State may by regulations make provision requiring an appellant to pay a fee of a prescribed amount.
6 Pre-1918 portrait miniatures
(1) An item that has ivory in it is exempt from the prohibition if—
(a) the item is a pre-1918 portrait miniature with a surface area of no more than 320 cm², and
(b) it is registered under section 10.
(2) For the purposes of subsection (1)(a) the "surface area" of a portrait miniature does not include any part consisting of or covered by a frame.
7 Pre-1947 items with low ivory content
(1) An item that has ivory in it is exempt from the prohibition if—
(a) the item is pre-1947,
(b) all the ivory in the item is integral to it,
(c) the volume of ivory in the item is less than 10% of the total volume of the material of which the item is made, and
(d) the item is registered under section 10.
(2) For the purposes of subsection (1)(b) ivory is "integral" to an item if it could not be removed from the item without difficulty or without damaging the item.
8 Pre-1975 musical instruments
(1) An item that has ivory in it is exempt from the prohibition if—
(a) the item is a pre-1975 musical instrument,
(b) the volume of ivory in the instrument is less than 20% of the total volume of the material of which the instrument is made, and
(c) the instrument is registered under section 10.
(2) In this section "musical instrument"—
(a) does not include anything that, although capable of being played as a musical instrument, was not made primarily for that purpose;
(b) includes a bow, plectrum or other thing made for playing a musical instrument.
9 Acquisitions by qualifying museums
(1) Dealing in an ivory item to which this section applies is exempt from the prohibition if or to the extent that the dealing—
(a) is a sale to, or a purchase or hire by, a qualifying museum, or
(b) is done for the purpose of such a sale, purchase or hire.
(2) This section applies to an ivory item that—
(a) was owned by a qualifying museum immediately before the relevant time, or
(b) is registered under section 10.
(3) A museum is a "qualifying museum" if at the relevant time—
(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;
(b) 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;
(c) 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;
(d) 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;
(e) in the case of a museum anywhere else, it is a member of the International Council of Museums.
(4) Regulations made by the appropriate national authority may make any amendment to paragraph (a), (b), (c), (d) or (e) of subsection (3) that is consequential on a change of name or transfer of functions involving a body specified in that paragraph.
(5) In this section—
• "ivory item" means—
(a) an item made of ivory, or
(b) an item that has ivory in it,
but does not include an item consisting only of unworked ivory;
• "purchase" includes an acquisition for valuable consideration;
• "the relevant time" means the time of any activity that constitutes dealing in the ivory;
• "sale" includes a disposal for valuable consideration (and "sell" is to be read accordingly).
(1) The Secretary of State must register an item under this section if the owner of the item—
(a) applies for it to be registered, giving the owner's name and address,
(b) provides a description of the item and of any distinguishing features that it has,
(c) provides a photograph of the item showing any such features,
(d) in the case of an exemption under section 6, 7, or 8—
(i) makes a declaration that the item satisfies the relevant exemption conditions, and
(ii) provides an explanation of how the item satisfies those conditions,
(e) provides information about any dealing in the item that is expected to take place,
(f) provides any other information specified in regulations made by the appropriate national authority, and
(g) pays to the Secretary of State any fee prescribed by regulations made by the Secretary of State.
(2) "The relevant exemption conditions" are—
(a) in the case of section 6, the condition in subsection (1)(a) of that section;
(b) in the case of section 7, the conditions in subsection (1)(a) to (c) of that section;
(c) in the case of section 8, the conditions in subsection (1)(a) and (b) of that section.
(3) Regulations under subsection (1)(g) may provide for exemptions.
(4) Where an item is registered in response to an application under this section, the Secretary of State must provide the applicant with written confirmation of the registration.
The confirmation must—
(a) identify the owner of the item;
(b) contain a unique number (or combination of letters and figures);
(c) contain enough information to identify (so far as possible) the item to which it relates.
(5) The Secretary of State must keep a record of information (including photographs) provided to the Secretary of State under this section or section 11.
11 Further provision about registration
(1) The registration of an item under section 10 ceases to be valid if the ownership of the item changes (but the new owner may make a fresh application for registration).
(2) Where an item is registered under section 10 and—
(a) the owner of the item becomes aware that any relevant information relating to the item is inaccurate or incomplete, or
(b) any such information becomes inaccurate or incomplete,
the owner must notify the Secretary of State accordingly and must provide the Secretary of State with the necessary information to make good the inaccuracy or incompleteness.
(3) The Secretary of State may cancel a registration under section 10 if it appears to the Secretary of State that—
(a) the item concerned does not satisfy the relevant exemption conditions,
(b) the registration has become invalid because of subsection (1), or
(c) the owner of the item has failed to comply with subsection (2).
(4) The Secretary of State may amend a registration under section 10, or anything recorded under section 10(5), if it appears to the Secretary of State that any relevant information relating to the registered item is, or has become, inaccurate or incomplete.
(5) In this section—
• "information" includes any declaration or photograph;
• "relevant information" means any information given to the Secretary of State under section 10 or this section;
• "the relevant exemption conditions" has the meaning given by section 10(2).
Criminal and civil sanctions
12 Offence of breaching the prohibition or causing or facilitating a breach
(1) It is an offence—
(a) to breach the prohibition,
(b) to cause the prohibition to be breached, or
(c) to facilitate a breach of the prohibition.
(2) A person commits an offence under this section in relation to an item only if the person knows or suspects, or ought to know or suspect, that the item is ivory, is made of ivory or (as the case may be) has ivory in it.
(3) It is a defence for a person charged with an offence under this section to prove that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence.
(4) A person who commits an offence under this section is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or a fine (or both);
(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both);
(d) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).
(5) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (4)(a) to 12 months is to be read as a reference to six months.
13 Civil sanctions
Schedule 1 (civil sanctions) has effect.