2 On 6 October 2017, Environment Secretary Michael Gove announced a consultation on proposals to ban ivory sales in the UK to help bring an end to elephant poaching, which is driven primarily by consumer demand for ivory and speculative acquisition of ivory. The Government’s proposals for an ivory sales ban were subject to a 12-week public consultation, which ran from 6 October 2017 to 29 December 2017.
3 The consultation put forward proposals to implement a ban on ivory sales in the UK, and to prohibit the import and re-export of ivory for sale to and from the UK, including intra-EU trade to and from the UK, where such sales could contribute either directly or indirectly to the poaching of elephants. Four categories of exemption to this ban were proposed, and views sought as to their validity and the parameters of any final exemptions. The consultation also sought evidence from respondents as to the size and value of the market for ivory items in the UK, and the impact of a sales ban on conservation, businesses and private individuals. Views were sought as to the compliance, enforcement and sanctions arrangements the Government should introduce in order to implement a ban. The measures proposed would not affect the ownership of ivory items.
4 In total 71,238 responses to the consultation were received and analysed, with 88% of respondents supporting a ban on ivory sales. The evidence received through the consultation exercise, as well as that received through other sources and engagement with stakeholders, informed the final scope of the UK ivory ban to be implemented through the Ivory Bill.
Aim of the Bill
5 The aim of the Ivory Bill is to help conserve elephant populations, specifically by reducing poaching, through significantly limiting the legal market for ivory 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 from the UK. This aim is in line with the 2017 Conservative Manifesto commitment to "protect[ing] rare species". 1
6 The Bill also aims to remove the opportunity to launder recently poached ivory as old ivory products 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.
7 The previous Government had announced it was developing proposals for an ivory ban before the 2017 General Election, in keeping with the 2015 Conservative manifesto commitment to "press for a total ban on ivory sales" 2 and the 2010 Conservative manifesto commitment to "press for a total ban on ivory sales and the destruction of existing stockpiles" 3 .
8 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 4 . This non-binding resolution recommended that all Parties and non-Parties in whose jurisdiction there is a legal domestic market for ivory 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 items may be warranted, but that any exemptions should not contribute to poaching or illegal trade.
9 The Government, through the Ivory Bill, is addressing its domestic and international commitments by adopting a ban on commercial activities in ivory. Clause 1 of the Bill provides for this prohibition and defines commercial dealing as follows:
● buying, selling or hiring ivory;
● offering or arranging to buy, sell or hire ivory;
● keeping ivory for sale or hire;
● exporting ivory from the United Kingdom for sale or hire; or
● importing ivory into the United Kingdom for sale or hire.
This definition is in line with the EU Wildlife Trade Regulations (see paragraph 11 of these Notes). The ivory ban will not affect ownership of items made of, or containing ivory, including inheriting, donating or bequeathing.
10 Existing restrictions concerning commercial activities and ivory are applied internationally through CITES, an international conservation agreement which aims to ensure that trade in endangered species does not threaten their survival. The Convention entered into force in 1975 and the UK ratified it in 1976. CITES has prohibited trade in new ivory, except in exceptional circumstances, from Asian elephants since 1975 and from African elephants since 1990.
11 CITES is implemented within the European Union (EU) through four EC Regulations (338/97 as amended, 865/06 as amended, 792/2012 and 2015/736), which are more commonly referred to as the EU Wildlife Trade Regulations. 5 6 7 8 These Regulations implement CITES in a stricter manner than is required by the Convention. The EU (Withdrawal) Act 2018 allows for the full conversion of these regulations into UK law. The UK Control of Trade in Endangered Species (Enforcement) Regulations 2018 (COTES) make provision for enforcement of the European Regulations. 9
12 The Government has made clear its intention for the UK ivory ban to build upon and go further than current rules on ivory. Under the current regulations, items of worked ivory made prior to 3 March 1947 may be subject to commercial activities within the UK or the EU without a permit. 10 A permit, issued by the UK’s CITES Management Authority, the Animal and Plant Health Authority(APHA) 11 is required for the commercial use of worked ivory items made after 1947 and for the import or re-export of ivory of any age to third party countries outside the EU. In line with EU guidance, the UK’s policy is not to issue documents authorising the sale of, or other commercial trade in, raw African elephant ivory of any age.
13 The Ivory Bill will prohibit the commercial use of ivory and ivory items regardless of their age, with the exception of items meeting one of the five categories of exemption (see section "Exemptions to the ban"). This will mean that the current date-based restrictions will become obsolete. In line with recommendations made in response to the consultation, "backstop dates" are applied to the exemptions included within the Ivory Bill. Dates were recommended to make sure modern ivory items are not permitted under the exemptions and that the UK ivory ban is at least as strong as or stronger than existing regulations.
14 The EU Wildlife Regulations will continue to apply to the import and export of ivory to and from the UK, and alongside the exemptions this Bill will put in place. As a result, if the owner of an item of pre-1947 worked ivory wishes to sell it, or engage in another form of commercial use with it, to a country outside of the EU, they must: i) ensure the item satisfies the conditions of an exemption under the Ivory Bill; and ii) meet existing requirements under the EU Wildlife Trade Regulations on the import and export of ivory.
15 The UK is a Party to CITES in its own right and will continue to be bound by the obligations of the Convention on exiting the EU. The UK Government proposes to ensure continued compliance with CITES on EU exit, through converting the EU Wildlife Trade Regulations into a UK-specific regime under the powers set out in the European Union (Withdrawal) Act 2018.
Exemptions to the ban
16 As part of its consultation, the Government made clear its intention to create exemptions to the ivory ban where the commercial use of an item does not contribute directly or indirectly to the ongoing poaching of elephants. This is in line with CITES Resolution 10.10 and with other examples of domestic ivory trade bans applied globally. 12 Strictly-defined exemptions will therefore apply where a ban on the commercial use of items is unwarranted. This is considered to be the case when it is understood that both the continuation of sales of certain categories of items would not contribute either directly or indirectly to ivory poaching, and the intrinsic value of that item is not due to its ivory content.
17 The consultation proposed exemptions for: musical instruments, items containing a small amount of ivory – "de minimis", items of historic, cultural or artistic significance, and sales to and between museums. Based upon recommendations and evidence provided in response to the consultation, all exemptions have been defined, an exemption for portrait miniatures has been included and the exemption for items of historic, cultural or artistic significance has been refined as an exemption for the rarest and most important items of their type.
18 Clauses 2 and 6 to 9 of the Bill set out the exemptions to the prohibition for:
● Items containing only a small proportion of ivory (known as a "de minimis" exemption) comprising less than 10% ivory by volume and produced before 3 March 1947;
● Musical instruments comprising less than 20% ivory by volume, and produced before 1975;
● Portrait miniatures with a surface area of no more than 320cm2 (excluding the frame) produced prior to 100 years before the coming into force of the ban under this Bill;
● Items produced 100 years or more before the coming into force of the ban under this Bill which are assessed by an independent advisory institution as being among the rarest and most important items of their type; and
● Sales to, and between, accredited museums.
19 Clauses 3 to 5 and Clauses 10 and 11 of the Bill provide for the compliance processes by which a person wishing to engage in the commercial use of an item under one of these exemptions must abide. A certification process is applied to the exemption for the rarest and most important items of their type and a self-registration process is applied to the other four categories. APHA is the Management Authority in the UK for the EU Wildlife Regulations and will act on behalf of the Secretary of State to administer the new registration and certification processes.
20 Those wishing to register an item as exempt from the ban will do so via a new online system, which will be administered by APHA. Provisions will be put in place for those unable to use an online system. This online database will be accessible by the Government, the regulatory body and the police. With regard to the certification process for items put forward under the rarest and most important category, APHA will seek the advice of an institution with recognised specialism in the relevant field to assist it in deciding whether the item meets the criteria of this exemption.
21 Clauses 12 and 13 of the Bill set out the new offences to be created for the purposes of enforcing the UK ivory ban. Existing legislation provides for offences which may be committed in association with illegal trade in ivory and are therefore not duplicated in this Bill, for example, offences under the Serious Crime Act 2007. Clauses 12 and 13 provide for a mixed regime of criminal and civil sanctions to be applied to those who have committed an offence under the Bill, in line with the existing sanctions regime under COTES. Clause 12 allows for a maximum criminal sanction of five years imprisonment and/or an unlimited fine to be applied. Summary convictions up to the statutory maximum allowed in each devolved administration are also allowed for. A range of civil sanctions are also provided for in Clauses 12 and 13. Further details are set out in Schedule 1.
22 Clauses 14 to 27 confer the necessary powers onto the regulatory body, customs officials and the police in order to enforce the ban. These powers are derived from, and applied in line with, the Police and Criminal Evidence Act 1984. Schedule 2 provides further details with regard to search warrants in England, Wales and Northern Ireland.
23 Clauses 28 to 32 provide for the necessary processes for the retention and disposal or return of seized items, including the processes by which an application of forfeiture and an appeal against this application can be made. Finally, Clauses 33 to 42 provide for general provisions necessary for the operation of the Bill.
1 The Conservative Party Manifesto 2015: https://www.conservatives.com/manifesto2015
2 The Conservative Party Manifesto 2015: https://www.conservatives.com/manifesto2015
10 Worked specimens are defined as 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 affect their purpose.
11 The APHA is an executive agency of the Department for Environment, Food and Rural Affairs.
12 A number of other countries have already taken actions to restrict their domestic markets, including the United States, France and China. The Government has therefore considered global best practice in defining the scope of the UK ivory ban and the exemptions.