Ivory Bill

Written evidence submitted by a group of NGOs - The Environmental Investigation Agency, Born Free Foundation, David Shepherd Wildlife Foundation, Stop Ivory, Tusk Trust, The Wildlife Conservation Society, IFAW, NRDC and the Zoological Society of London (IVB05)


1. This submission is made by the Environmental Investigation Agency, Born Free Foundation, David Shepherd Wildlife Foundation, International Fund for Animal Welfare, Natural Resources Defense Council, Stop Ivory, Tusk Trust, Wildlife Conservation Society and the Zoological Society of London. We welcome the Bill as a positive step in the fight against the illegal ivory trade, showing leadership by the UK and a determination to play our part in preserving elephant populations.


2. The guiding principle behind the Bill should remain that it will allow only a very limited domestic trade in items falling within the exemptions. Defra should publish a report each year showing details of the number of items allowed to be sold through the registration and exemption certificate processes.

3. All commercial imports and exports of ivory items should be banned (or at least the import and export of items under the section 2 exemption).

4. All online dealing in ivory should be banned.

5. Documentary evidence to prove legality/origin of the ivory item should be required to support applications for exemption certificates and registration.

6. APHA should scrutinise all applications for registration, rather than relying on self-assessment and occasional spot checks.

7. The exemption in section 2 seems to have been widened from the wording in the consultation documents and the Policy Statement. The "rarest and most important" language should be reinstated.

8. The Bill should clearly specify that all trade in raw ivory is banned (i.e. raw ivory cannot be sold under any of the exemptions).

9. The Bill should be enacted before the IWT conference in October 2018, so the UK will be in a strong position to send a powerful message to other countries who have yet to act. Any delay to the Act taking effect should be as short as possible.

10. The guidance accompanying the Bill will be critical and stakeholders should have the opportunity to provide input into its development.

11. Proper funding of enforcement authorities and raising awareness of the new rules will be critical to the effectiveness of the legislation.



12. The UK’s exports of antique ivory, especially to the world’s largest illegal ivory markets in Asia, are our most direct contribution to the global trade in poached ivory. Sales of our antiques fuel ivory’s desirability in the minds of consumers and undermine enforcement efforts in key destination countries for illegal ivory, including mainland China, Hong Kong, Vietnam and Japan. Moreover, critical efforts to close domestic ivory markets in Asia are underway which will be undermined by continued UK ivory exports, placing the UK in an embarrassing position (some traders in the Hong Kong legislative debate mentioned the contribution of UK ivory exports to their market).

13. An approximate analysis of the impact of the Bill is that around 25% of currently traded ivory items will fall under the exemptions. The UK exported c36,000 ivory items worldwide from 2010 to 2015, with the USA the next highest exporter with c9,800 items. Therefore, even if the proposed ban with exemptions had been in place, exports would have been c9,000 items (a quarter of 36,000) – meaning that the UK would still have been the second highest exporter of antique ivory in the world.

14. The argument has been made that WTO rules do not allow different rules for international as opposed to domestic trade. That analysis should be challenged. We do not believe the rules applied to every product in the UK are exactly the same for international transactions as for domestic transactions. There would be little point in requiring people to apply for export licences for products if they were granted automatically for any item that could be sold lawfully within the UK. The entire tariff system is based on international rather than domestic transactions. So there will be circumstances where rules for international trade are different from domestic trade.

15. Items falling under the ‘low ivory content’ exemption may contain ivory that is more valuable/useful in the illegal market after it has been removed than as part of the item, especially where the item itself is of low value

16. For items of outstanding artistic, cultural or historic value, allowing international sales will result in two branches of government applying very similar tests for completely opposite purposes. Defra will be assessing whether the item is so important that it falls under the section 2 exemption and so should be sold, whereas the Department for Digital, Culture, Media and Sport will be assessing the export licence application to decide whether the item is so important that it should not be sold. (Or at least, DDCMS will be judging whether the export licence should be delayed to allow time for funds to be raised to keep the item in the UK.) This bizarre situation could easily be avoided by preventing all international sales of such items.

17. The role of Customs officials will be much more straightforward if all ivory imports and exports are illegal without exception.

18. If all international transactions are not banned, at least section 2 items should be banned for the reasons given: fuelling demand in Asia and the logical inconsistency of allowing the sale of an item that the export licensing system then considers a national treasure that should not be allowed to leave the UK.

19. Our later comments on the Bill’s specific sections are subject to our view that international dealings should be banned entirely.

Online transactions

20. There is ample evidence that illegal ivory trading frequently takes place online. The arguments have been rehearsed many times (the difficulty of policing online transactions, descriptions of ivory being disguised to avoid search term filters, the near impossibility of checking every parcel despatched from the UK etc). Allowing only physical sales, combined with the exemption certificates and registration process, should considerably reduce illegal trade and make the enforcement authorities’ job far easier.

Assessment of registration applications

21. There must be scrutiny by APHA of the supporting documentation provided by an owner when applying for registration. Self-assessment of an item is one of the greatest failings of the current system yet it seems that is to be continued under the proposed registration system. APHA should be able to require further information or evidence, without which the application would be refused. Registration charges should be set at a level that covers the costs of proper scrutiny.

22. The online database should be accessible by the public so buyers can check the item has been registered and that the registration number the seller has provided has not been faked (rather than having to ask the APHA to check the database, so saving time and resources within Government). If there are supporting photographs and other documents on the database, the buyer can check that the item he/she is looking to buy is the item corresponding to the registration number.


23. The Bill should be framed openly in a CITES context – as a stricter measure under Article 14 of the Convention and as implementation by the UK of its international commitments. Doing this overtly in the Preamble to the Bill should make it more resilient.  


24. Enforcement authorities such as the NWCU and the Border Force CITES team must receive extra, permanent funding so they can properly enforce the Act.

Raising awareness/education

25. This will be critical to increase the likelihood of compliance and to make it more difficult for those in breach to plead ignorance. In our response to the consultation, we included a number of practical suggestions (e.g. displaying a summary of the rules in all venues where ivory items may be sold).

26. A user-friendly guide to the new rules on the APHA website is essential (including the CITES rules).


27. The New York State guidance to their legislation makes clear there will be increased penalties for second and subsequent offences. The same should apply in the UK, with heavier sentences for those regularly involved in the commercial trade, rather than one off private sellers. Sentencing guidelines for illegal trade in endangered species are essential and long overdue.

Ivory from other species

28. We welcome the power in the Bill to extend its protection to ivory from other species, but it should not be limited to species that are listed on one of the CITES Appendices, but any species that bears ivory (otherwise the SoS’s power is limited by an external organisation’s decisions).


29. Section 1(1): This should refer to dealing in "ivory items", with a new definition of an "ivory item" included in section 36. All other definitions of ivory item can then be removed. The definition should be: "ivory item" means – (a) an item that consists of ivory, or (b) an item that has ivory in it".

30. We suggest using "consists" of ivory rather than "made" since "made" implies a form of manufacture and therefore may not include a piece of raw ivory. "Item" should be read where relevant as meaning an ivory item.

31. There will then need to be consequential changes to other sections (e.g. section 36(2)) that refer to an item being "made" before one of the stated dates.

32. Section 1(2)(c): The Explanatory Notes say "keeping ivory for sale or hire" would include "transporting for sale or hire". We do not agree. The ordinary meaning of "keeping" would not include "transporting" (e.g. a courier company taking an item to an auction house would not be regarded as "keeping an item for sale"). Transporting for sale should be specifically included.

33. Section 1(4): This is confusing. The Bill should simply make clear that it only applies to people involved in "dealing" who are based in the UK.

34. Section 1(5): This should be deleted because of the suggested definition of ivory item.

35. Section 2: The wording in italics describing the exemption should not say "outstandingly valuable" since that would be read as meaning financially valuable; the wording should match the wording in section 2(2)(b).

36. Section 2(2): It is very important that this reflects the Policy Statement and the Explanatory Notes by stating that items should be the rarest and most important examples of their type. Otherwise, it appears that the exemption has been toned down by simply referring to rarity as a factor and whether an item is "an important" not "most important" example of its type.

37. Therefore, section 2(3)(a) and (b) should be deleted and replaced with "(a) whether it is one of the rarest and most important items of its type".

38. Section 2(5): Prescribed institutions should be qualifying museums. The SoS should be able to remove institutions from the list or add them on. At the very least, prescribed institutions should be "public" and should not include any entity that has a commercial interest in trading ivory (e.g. antiques trade associations, auction houses etc).

39. Section 3(1): This implies "the person" applying for the exemption certificate may not be the owner, whereas under section 2(4) an exemption certificate may be issued only to the owner. They seem inconsistent. New wording should begin section 3(1) to make the position clear: "A person applying for an exemption certificate may be the owner of the item or an agent a cting on behalf of the owner and must - " .

40. Also, if only the owner can apply, what happens when someone in the UK wants to buy an item from overseas, particularly in an auction? The potential buyer won’t be the owner unless successful in acquiring the item, so couldn’t apply for an exemption certificate beforehand. Yet the very act of buying it without an exemption certificate will be a criminal offence. This needs to be addressed (or international transactions should be banned).

41. It is very important that the Bill specifically requires documentary evidence to be provided to support the application, as well as a photograph (e.g. proof of age, provenance, identity and the owner’s address). If documentation is not available, that should be a factor in the assessment.

42. It is a risk to rely on an "implicit" power to request documentation. An applicant could argue they have done everything expressly set out in the legislation and then object to an extra, unmentioned step of producing documents. That would be ripe grounds for an appeal – particularly because an application must be referred for assessment where the conditions in section 3(1) are satisfied and the application is not clearly "bad".

43. Similarly, it is a risk to rely on an implicit power for the assessor/prescribed institution to advise the SoS to request documentation. That is not included in the section 3(3) process. It would be far preferable, and very easy, to make clear that the prescribed institution can advise the SoS that further information, including documentation and potential testing, is required before they can form their opinion.

44. The accompanying guidance can provide detail about the types of documentation to be provided.

45. Section 3(1)(c): This should refer to a photograph "or photographs" in case more than one is needed to show all features of the item.

46. Section 3(1)(d): This should include confirmation that the dealing complies with CITES/COTES and the laws of any other country relevant to the dealing.

47. Section 3(1)(f): We suggest adding at the end "(including the identity of the other party or parties, if known)".

48. Section 3(3), (4) and (5): There is no need for an individual assessor and all references should be deleted. The institution should be responsible for providing the opinion, using members of staff (appropriately defined because not all museum staff are employees). If the assessor concept is to remain, he/she should be one of the institution’s staff and the SoS should be able to veto an assessor (eg because previous decisions have often been successfully challenged on appeal).

49. Section 3(3)(a): The item itself won’t be inspected so the word "item" should be replaced with "information provided under section 3(1)".

50. Section 4(1): The exemption certificate should include the owner’s name, otherwise how would section 4(7) work which refers to an exemption certificate being issued "to a different person"? Generally, a new owner should be required to register the transfer of ownership (whether on a prohibited dealing or not), so a record of ownership of these very important pieces is maintained by Defra/APHA. That will make it easier to operate section 4(7) because there will always be a record of the current owner so someone proposing to deal will not have to explain how they came to be the owner (e.g. through gifts or inheritance).

51. Section 4(1)(b): The words "(so far as possible)" should be deleted. Given the importance of the item and the information supplied by the applicant, it should always be possible to identify the item.

52. Section 4(3)(a): The words "or no longer satisfies" should be added after "satisfy".

53. Section 4(4): It is important to add the following wording at the end of this section: "provided that the item satisfies the conditions of paragraph (a) and (b) of section 2(2)".

54. Section 4(5): More safeguards are needed for issuing replacement certificates – an item could have several replacement certificates which could be used to sell similar items illegally. Under section 4(5)(b) it seems someone could legally acquire an item relying solely on a seller’s assurance that the item had a certificate but the seller does not have it any more. We suggest as a minimum the deletion of 5(b) to avoid suggesting that dealing can take place without a certificate.

55. Section 4(7): This should clarify that on a subsequent dealing, the then owner will have to: a) register the item; b) pay a fee; c) confirm that the item remains unchanged from its description when the exemption certificate was issued or, if it has been changed, explain the change – after which the SoS may require the item to be sent for a fresh assessment (on payment of the higher fee). If Defra decide not to use a system of continually updating ownership records, then the applicant would have to explain how he/she came to be the owner of the item.

56. There should be the same obligation on the SoS to maintain records as in section 10(5) for records to be kept about the registration process.

57. Section 6: Portrait miniatures should be defined.

58. Section 9: We are unclear why fewer types of transaction are covered here than in section 1; all types of dealing should be included. If section 9(1)(a) remains as drafted, "hire by" needs to be clarified. The word "hire" could mean hiring as lender or hiring as borrower (an issue highlighted in the current section 1(4)).

59. Section 9(3): The SoS should have the discretion to override the list of qualifying museums so particular museums can be removed (e.g. for previous bad practice). The SoS should not be bound to lists maintained by other bodies, particularly the ICOM since it is a membership organisation not an accreditation scheme.

60. Section 9(5): The exemption does not apply to items that consist "only" of unworked ivory and therefore excludes tusks (which we understand is the opposite of what was intended). These words should be removed. Instead, the Bill should clearly specify that the exemptions do not permit any trade in raw/unworked ivory.

61. The definitions of ivory item, purchase and sell are all unnecessary because they are, or should be, defined elsewhere in the Bill.

62. Sections 10 and 11: There are many of the same concerns as with section 3 about exemption certificates (e.g. lack of an obligation to provide supporting documentation).

63. Section 10(2): This should specifically include reference to section 9.

64. Section 10(3): We are unclear why some people could be exempt from paying fees.

65. Section 11(3): At the end of this section, the following wording should be added: "provided that the item satisfies the relevant exemption conditions".

66. Section 12(2) and (3): The defence of ignorance is a major concern. It is well known that illegal trade is fuelled by unscrupulous traders marketing ivory as bone or as ivory sourced from other species (e.g. mammoth). There should therefore be a basic sanction based on ‘strict liability’, with tougher sanctions if the person ‘knew or suspected or ought to have known or suspected’ that the item was ivory. At present, the section reads as though it will be for the prosecution to prove that the person knew or ought to have known that the item was ivory, because it is only then that someone commits an offence. The burden of proof should be reversed, which was proposed in the consultation and, we understand, strongly supported by the majority of respondents. This section does not reflect that. It should be redrafted to say that the onus will be on the person dealing in ivory to prove that they did not know, and could not reasonably be expected to have known, that the item was ivory.

67. Section 13: Section 13 gives effect to Schedule 1 on Civil Sanctions. As currently drafted, the provisions on civil sanctions could allow repeat offenders to avoid criminal prosecution and pay a nominal fine or no fine. Paragraph 10 of Schedule 1 on Enforcement Undertakings allows those suspected on reasonable grounds of an offence to undertake specified action to "secure that the offence does not continue or recur", or to take prescribed action. Unless the person fails to comply with the undertaking, or a part of it, they cannot be convicted under Section 12 or pay a monetary penalty. Therefore, it appears that even repeat offenders could avoid a criminal sanction or a monetary penalty. It should be possible to apply a monetary penalty in addition to an Enforcement Undertaking for a first offence, with repeat offenders being subject to criminal sanctions ( ie "two strikes and you’re out").

68. In Schedule 1 Part 1, it seems that paragraphs 4(1)(b) and 4(2) are inconsistent. The first says that there cannot be a subsequent conviction if a monetary penalty is discharged , but the second says that there cannot be a conviction if a monetary penalty is imposed . We think a conviction should only be prevented if someone pays the monetary penalty; if they fail to pay, it should be possible to convict them of a criminal offence. So paragraph 4(1)(b) is right and 4(2) is wrong and should be deleted.

69. Section 20(4): We think "the least damage possible" is too onerous. The section should be amended to say that a sample can be taken "provided that reasonable steps are taken to avoid causing damage to the item".

70. Section 35(3): The SoS should be able to include other ivory-bearing species not listed on one of the CITES Appendices (otherwise the SoS’s discretion is limited by an external organisation).

13 June 2018


Prepared 14th June 2018