Ivory Bill

Written evidence submitted by Caroline Cox, The University of Portsmouth Ivory Project (IVB17)

Executive Summary

The sale of ivory in the U.K. by members of the antiques trade as well as by more "casual" sellers has been of concern to conservation groups, law enforcement agencies and academics in this field for some time. Research by a number of organisations (including the University of Portsmouth’s Ivory Project, TRAFFIC and IFAW) have provided evidence that some sellers of ivory are unaware of the current regulatory position or aware of it but ignore it. This situation has meant that ivory can be found for sale both in the corporeal and incorporeal world that is illegal to sell.

1. Background

The University of Portsmouth’s Ivory Project was launched on the 25th November 2015 at the House Commons. A roundtable meeting, chaired by the Rt. Hon. Caroline Nokes MP brought together representatives from the antiques trade and musicians associations, law enforcement, conservation groups and academics. The Elephant in the Sale Room: An investigation in to the British antiques trades’ sale of ivory was published in June 2017 and is cited in the Impact Assessment document that accompanies this Bill. This project collected quantitative and qualitative data with the aim of understanding the value of ivory sales to the UK’s antiques trade, the amount of ivory being sold by the UK’s antiques trade and the extent to which dealers and auctioneers understood the laws and regulations relating to the sale of ivory in the U.K.

· Knowledge and Experience of sellers

Research findings regarding the current legislative position

Our research found that 95% of dealers and auctioneers relied on their knowledge and experience in ascertaining the age of an ivory artefact for sale. We concluded that this was a weakness in the current legislation for two reasons. Firstly, there was scope for inaccurate dating of an item (either through negligence, lack of knowledge or criminal intent). Secondly, as the burden of proof lays with the Crown to show that the item in question does not fall within the Article 8 derogation, police officers , often with little specialist training were ill prepared to make effective arrests. We spoke with law enforcement officers during the research project and a common theme in these interviews was the frustration they felt with the ability of sellers of ivory to hide behind the Article 8 derogation.

· Comments on the proposed new Ivory Bill 2018

The removal of the ability for sellers of ivory to essentially self-declare that the artefact for sale falls within the Article 8 derogation is to be welcomed. The introduction of a mandatory certification system for all ivory items that fall within the newly prescribed derogations (de minimis, musical instruments pre-1975, and artistic/cultural/historic and museum items) removes the burden from police and law enforcement officers to ascertain whether or not the items is pre or post 1947 worked ivory. The fact that an officer will be confident in making an arrest simply on the grounds that a valid exemption certificate cannot be produced by a seller removes doubt. In speaking to law enforcement officers since the announcement of the new Bill, it appears that it is being cautiously welcomed for the reasons given above.

· Sellers’ knowledge of the law and regulations

Research findings

During our research, we found that the knowledge of sellers of ivory varied greatly. We interviewed research participants who had been dealers for many years and were acknowledged experts in their field. In these cases, their understanding of the legislative framework within which they operated was good. However, during the research we also spoke with and observed sellers of ivory who either had little understanding of the law or who were aware of it but chose to ignore it. One example of this was a dealer at a car boot sale who was offering for sale an ivory bangle. When she was questioned about the age of the item the seller said she knew it was legal because she had had it tested. When questioned further about the testing, the seller said that she had "put a hot pin in it".

· Comments on the proposed new Ivory Bill 2018.

The current legislation is problematic in terms of the dating requirement. While an expert in their field my feel confident enough to assert that an ivory artefact is pre-1947 worked ivory, a casual seller or general dealer is less likely to have the necessary knowledge and experience to do so. This lack of certainty perhaps encourages negligent or criminal sellers to "take the risk" and sell ivory for which they have no proof of age. Clearly, the cost of scientific testing makes it uneconomic as a means of proof in most cases therefore the proposed new derogations would seem to close this current loop hole in the law.

· I have considered whether the introduction of an "artistic, cultural, historic" derogation is strict enough to prevent abuses of the type that currently undoubtedly occurring. I believe that the proposed two stage application process to achieve certification under this derogation is strict enough to prevent casual abuse. I understand that Defra believes that the number of exemption certificates granted under this derogation will, by the very nature of the requirements, be low. I would anticipate that many applications will fall at the first hurdle and that only a small number a year will make it to the expert panel for assessment. Clearly, the make-up of the panel will need to be carefully considered. Currently, a number of national museums provide specialist advise to Defra is the identification of ivory and the granting of CITES certificates and I would presume that a similar situation would continue and be broadened to include specialists from the arts and antiques field as well as academics.

· The proposed new derogations

I am pleased to see that the new Bill removes the 1947 antiques derogation. Research would suggest that this derogation has enabled negligent and criminal sellers to pass off new ivory as old (Cox, 2017).

The five new derogations (de minimis, pre-1975 musical instruments, portrait miniatures, artistic/cultural/historic and museums) will make the UK’s domestic ivory law amongst the strictest in the world, going beyond the recent legislative changes in France and the U.S.A. All of the new derogations will only be applicable to items with a valid exemption certificate and this is, in my view, the strength of this new Bill. With the ability for a seller to "self-certify" that their ivory artefact is legal to sell removed, not only is the law much clearer to sellers (i.e. ALL ivory is illegal to sell without an exemption certificate) but it also removes the burden of proof as to age, volume, artistic value, etc. from the prosecution.

· Can the Bill achieve its aims?

The purpose of the Bill is to prohibit commercial activities concerning ivory in the UK and

the import and re-export of ivory for commercial purposes to and from the UK, including

intra-EU trade to and from the UK (Defra, 2018).

In reflecting on the current regulatory position with regards to the sale of ivory in the U.K., I would suggest that amendment was required for 3 reasons:

1. Issues with correctly assessing ivory to be pre-1947 worked ivory by the seller either

a. through lack of knowledge or expertise

b. deliberate attempts to sell illegal ivory artefacts or

c. negligently using their "best guess" as to the age of the item

2. Issues with correctly assessing ivory to be pre-1947 worked ivory by law enforcement officers/ prosecutors

3. A perception that the prosecution for this type of wildlife crime has not been in the public interest (due to the value of the items being sold).

The introduction of stricter derogations where, even if an item falls within in an exemption category it will not be legal to sell without certification is very much welcomed. It removes all doubt as to whether or not for instance the item is less than 10% ivory in volume, if it does not have an exemption certificate it will not be legal to sell. This should make the process clearer for the seller, the buyer and those enforcing the legislation.

· Ivory sales on-line

The Ivory Bill makes it clear at clause 1 that the new regulations "will apply to anyone doing so remotely from the UK, for example over the internet." This is welcomed. My current research project is considering the sale of ivory through internet auction sites (such as eBay). My research has shown that ivory is sold via these types of auction platforms in considerable amounts.

My current research project, Regulatory Issues and Concerns in On-line Trading Markets for Antique and Craft Goods Sourced from Illegal Ivory: Some Empirical Evidence from eBay (Cox & Collins, 2018), monitored eBay’s U.K. site for a period of 90 days between the 25th December 2017 and the 25th March 2018. We discovered that during that period 662 items listed as "antique bovine bone" sold through eBay U.K. Our analysis of the advertisements deduced that 557 of those were in fact ivory. We identified a number of repeat sellers during this period, with one seller based in the U.K. selling 46 ivory artefacts under the pseudonym "antique bovine bone". In total, we identified £47,777.65 worth of ivory sold on eBay U.K.’s site during this period which had been listed as "antique bovine bone" with the top ten sellers during the 90 day period accounting for £17,255.75 worth of ivory items that they had listed as "bovine bone".

There is concern amongst conservation groups that as ivory becomes harder to sell in the corporeal world more will go online. While eBay and similar on-line auction platforms have basic screening tools in place it is clear that ivory is still being successfully sold through their sites.

The law enforcement community lack the resources and training to deal effectively with the online trade. Therefore, while on the one hand I congratulate the Government in taking this step to commit to combatting the illegal sale of ivory in the U.K. my primary submission to the Committee would be to draw your attention to the on-line trade and the need to tackle this.

· Recommendations - How do we tackle the on-line sale of ivory

It is to be hoped that this Bill will have a positive effect on both the sale of ivory in the corporeal world and on-line. However, I am concerned that my research and analysis of on-line advertisements for ivory artefacts shows evidence that sellers are aware of the current legislative framework in the U.K. For instance, advertisements will refer to the age of the item, sometimes specifying in the advertisement that it is "pre-1947". Although eBay’s user policy prohibits the sale of ivory through its sites this is abused by unscrupulous sellers. Currently, I believe that it is possible that there is some confusion on the part of some sellers between what the current U.K. legislative position is (i.e. that the sale of pre-1947 worked ivory is permitted) and eBay’s ivory policy. If this is the case, the new Bill should have a positive effect on the on-line sale of ivory.

Regrettably, my research also suggests that sellers of ivory through on-line auction sites either have no knowledge of the legislation or do but chose to ignore it. This type of criminal behaviour or negligence is difficult to legislate against. Therefore, I will continue to analyse and research the nature of the online ivory trade through sites such as eBay during this period of transition and beyond in the hope that my research will assist law enforcement agencies in their prosecution of offenders.

Finally, there is a realistic fear that as it becomes harder to sell ivory artefacts corporeally more of the trade will go online. It is incumbent upon online auction platforms to put in place stringent monitoring tools to deal with this but it is also important that our own law enforcement agencies are given the resources to investigate and prosecute the online trade. This can only come from government’s willingness to invest in trained officers with the ability and resources to police the online trade. I hope that this will be taken in to account by Secretary of State moving forward so that the Ivory Bill will make a lasting impact in combating the illegal ivory trade.

Senior Lecturer in Law

Portsmouth Law School

The University of Portsmouth

June 2018


Cox, C. (2017). The Elephant in the Sale Room: An Inquiry in to the British Antiques Trades' sale of Ivory. Portsmouth, UK: The University of Portsmouth.

Cox, C., & Collins, A. (2018). Regulatory Issues and Concerns in On-Line Tradng Markets for Antiques and Craft Goods Sourced from Illegal Ivory: Some Empirical Evidence from eBay. International Conference on Cultural Economics. Melbourne, Australia: International Conference on Cultural Economics.

Defra. (2018). Explanatory Notes to the Ivory Bill 2018. London: House of Commons.


Prepared 19th June 2018