Ivory Bill


Executive summary

As set out more fully below, BADA and LAPADA:

· Support the stated objective of the Bill to help conserve elephant populations;

· Support the structure of the Bill including the concept of targeted and reasoned exemptions;

· Support the portrait miniature and musical instrument exemptions;

· Strongly believe that the "outstandingly high artistic, cultural or historical value" and "de minimis" exemptions as presently drafted do not pursue the stated objective of the Bill;

· Propose an amendment to the dateline and the principal criterion by which exemption certificate eligibility will be judged in respect of clause 2; and

· Propose an amendment to the de minimis threshold in clause 7.

BADA and LAPADA’s opinion of the Bill

1. BADA and LAPADA are the UK’s two largest fine art and antique dealer trade bodies, jointly representing 700 businesses. The Ivory Bill in its current form is of grave concern to us and our members for the reasons set out in this submission.

2. BADA and LAPADA welcome and support the Bill’s purpose of helping to conserve elephant populations and removing the opportunity for the laundering of recently-poached ivory.

3. We agree with the need for restrictions that incorporate a robust system of checking solid ivory carvings, particularly at the lower priced end of the market.

4. We believe that modern day solid ivory trinkets and tourist carvings, objects that can be difficult to date, should be removed from circulation. They add little to our understanding of mankind’s cultural development or history. The Bill if enacted will ensure these are no longer sold.

5. We also welcome the method of achieving the Bill’s aims through the introduction of a total ban, with targeted and well-reasoned exemptions where commercial use of items made from ivory does not contribute directly or indirectly to the poaching of elephants.

6. We therefore welcome:

the exemption for portrait miniatures (clause 6); and

the exemption for pre-1975 musical instruments containing less than 20% ivory (clause 9).

7. We accept as a means of focusing on solid ivory carvings the concepts of a de minimis exemption, working in tandem with an exemption for all other objects incorporating ivory that are of historical, cultural or artistic significance. However, we believe that as formulated these two exemptions are not rationally connected to, and therefore do not pursue, the stated objective of the Bill. They also go further than is necessary in pursuit of the Bill’s aims.

8. We made these points clearly in our response to the consultation but these appear not to have been considered in any genuine way by the Government. Furthermore during our attendance at the Bill Committee meeting on 12 June, we were not asked to comment on the adequacy of the response to the consultation.

9. We should point out that the Government appears to be legislating on the basis of assumptions about both the impact of very restrictive UK legislation on the policies of other states and on demand for raw ivory, including overseas demand. So far as we can ascertain, much of this appears to be conjecture, rather than evidence-based, especially when it is generally accepted that the UK is not a destination market for poached ivory.

10. In our view if the exemptions as currently drafted are made into primary legislation this will render the legislation unlawful on the grounds that it constitutes:

- an unlawful interference with the free movement of goods contrary to European Union law; and/or

- a disproportionate (and therefore, unlawful) interference with Article 1 Protocol 1 property rights protected by the Human Rights Act.

"Outstanding artistic etc. value and importance" exemption (clause 2)

11. As currently drafted, the clause 2 exemption for objects that will require an exemption certificate applies only to items that pre-date 1918. We do not consider this cut-off date to be reasonable (or for that matter explicable on any rational basis).

12. The Government’s consultation response provides no explanation why 1918 (100 years before the Bill) is the appropriate cut-off date. This lack of explanation is particularly striking given that 1947 is the cut-off date proposed for the de minimis exemption, and given that 1947 is used as the cut-off date elsewhere in Europe for worked ivory and other specimens of endangered species.

13. Since items covered by this exemption will be scrutinised by specialists from institutions, who will consider whether they fulfil the exacting clause 2(2)(b) criteria, there is a very low risk of such objects being wrongly dated. In exceptional circumstances there is the option of carbon-dating, which relies on high levels of carbon-14 in the atmosphere from the early 1950s onwards and this method ties in well with a 1947 date.

14. We are not aware of any evidence having been submitted or considered by the Government to show that objects created between 1918 and 1947 contribute to modern day poaching. The rationale for adopting a cut-off date of 1918 is therefore wholly unclear.

15. The effect of 1918 as the cut-off date would be to remove from sale works created by some of Britain’s finest artists and sculptors of the Arts and Crafts and Art Deco movements. For example, sculptures by artists such as Eric Gill (of typeface Gill Sans fame) and Richard Garbe feature in some of this country’s important national collections. We do not consider that this is the proper intention of the legislation. In our view the cut-off date adopted by this exemption renders the prohibition both an unlawful interference with Article 1 Protocol 1 property rights, and a breach of the EU law principle of the free movement of goods.

16. We therefore propose that the cut-off date for clause 2 be changed from 1918 to 1947.

17. Objects benefiting from the clause 2 exemption are required to be of outstandingly high artistic, cultural or historical value. In paragraph 19 of BADA’s submission to Defra we recommended that the definition best suited to this type of exemption should be objects of "museum quality", which could apply to objects of sufficient calibre to be eligible for inclusion in the collections of "accredited museums", as defined in the Bill.

18. We accept that items for which ivory is the largest component should be subject to third party checking, but the primary aim of such checking should be to exclude from the prohibition objects that do not contribute directly or indirectly to the poaching of elephants.

19. BADA is greatly concerned that the un-necessarily high bar that has been set for clause 2 items will remove from sale many thousands of objects which are of cultural, historical or artistic significance to our nation and to other cultures. The low 10% ivory content de minimis exemption will further exacerbate the problem by making an extremely large number of mixed material objects subject to the clause 2 requirements. Examples of the types of items that have cultural, historical or artistic significance were shown in Annex 12 of our submission and in the submission made by the British Art Market Federation.

20. The serious danger is that the legislation will allow the continued sale of relatively mundane objects, such as mass-produced 20th-century upright pianos with worn ivory keys, whilst preventing the sale of cultural objects which are of fine museum quality, but have failed the 10% ivory content and "outstandingly high artistic, cultural or historical value" exemption tests.

21. Excluding from sale so many historical works of art would result in those items eventually being lost; on the death of their owners there is no guarantee that their beneficiaries would be inclined to care for them properly or appreciate their cultural significance. Such artefacts will cease to be consigned to or accepted by house clearance auctions and the opportunity will therefore be lost for them to be seen in auction listings and identified by knowledgeable potential buyers from museums or the art trade. The Etruscan ivory sistrum that originally surfaced in a house clearance sale and was subsequently added to the collection of the British Museum serves as a good example of the type of object that will be lost to future generations under the clause 2 proposal as presently worded. House clearance auctioneers without the expertise to realise the significance of all of the ivory items passing through their hands will not apply for an exemption certificate if they do not realise an object could be eligible to be granted one.

22. The restriction on the sale of such works constitutes an unlawful interference with the free movement of goods contrary to EU law. Furthermore, rendering this volume of objects unsaleable would also cause considerable pecuniary loss to our members and would constitute an unlawful interference with Article 1 Protocol 1 property rights.

23. We therefore propose that clause 2(2)(b) be amended to read "the item is of museum quality". Museum quality would refer to objects judged as being of the standards required by accredited museums for inclusion in their collections.

"Low ivory content" ("De minimis") exemption (clause 7)

24. In the BADA submission to the Defra consultation (paragraph 12.7) we explained and justified our view that the threshold should be set at 50% by volume. The proposal in the Bill is that it should be 10%.

25. The Government’s consultation summary provides no rationale for the conclusion that the de minimis threshold should be set at 10%. It is not apparent that there has been any consideration by Defra of the relative merits of different ivory level thresholds. In our view there is no logical link between the de minimis threshold contained in the Bill, and the objective that the Bill pursues. This de minimis threshold contained in the Bill is a matter of grave concern to BADA and LAPADA and the exemption formulated by reference to it will have a material and disproportionate impact on our members. It does not represent any explicable fair balance between the conservation objective that the Bill pursues, and the adverse impact of the prohibition of commercial activities on our members.

26. For indicative purposes antiques containing ivory, where the ivory content amounts to less than half, include: (i) knobs and small functional attachments, (ii) inlay or ‘veneer’ work, (iii) mixed-medium sculpture, (iv) small carved and applied embellishments, (v) handles and insulators on silverware and (vi) antique scientific instrument and measurement gauges (examples illustrated in Annex 10 of the BADA submission and in De Minimis Annex to the LAPADA submission).

27. We are not aware of any evidence showing that any of these six categories of item is being purchased with a view to export for re-carving in ivory workshops of the Far East. In most cases the ivory elements are so small or old that re-carving would not be practicable. We have evidence to show that items in these categories (e.g. silverware or pianos) have a value that far exceeds any resale value of their ivory content (paragraph 12.6 of BADA submission, and paragraph 1.2, Annex 8).

28. We also contrast clause 7’s 10% threshold with the musical instrument exemption threshold of 20% (clause 9). If a set of bagpipes comprising 15% ivory is not seen as a threat to elephants, what is it about a 19th-century pocket barometer with the same ivory content that means it should be regarded as a threat?

29. Many culturally significant objects that define the UK’s history and the story of its development contain elements of ivory amounting to more than 10%. These include historic hallmarked silverware, such as elegant Georgian silver teapots, which epitomise the story of tea as our national drink, and 19th-century Vizagapatam boxes with ivory inlay, which form part of our rich and complex relationship with Indian culture. The current formulation of the exemption would render these objects unsaleable and would cause significant financial loss to a number of our members and to collectors and other members of the public. In our view the narrow scope of the exemption constitutes an unlawful interference with Article 1 Protocol 1 property rights and/or a breach of the EU law principle of the free movement of goods.

30. Any threshold in respect of clause 7 should allow the assessors engaged by the institutions to focus on the predominately ivory objects that are of greatest concern. In summary a higher maximum threshold is preferable for the following reasons:

- 50% is the threshold used in federal law in the United States for ivory and therefore introduces an element of international consistency;

- no evidence has been produced to suggest items comprising less than 50% ivory are contributing to poaching;

- the nature of the ivory in most objects where it is a minority material means that it is not a source for re-workable ivory: small fragments of inlay are far too small to be re-carved and the ivory in coffee pot insulators or silverware handles is usually partially drilled to assist in attachment, rendering its re-use impractical; 

- as a workable threshold, 50% is simpler to assess and will lead to better levels of compliance;

- a 10% threshold falls across the middle of the range of proportions of ivory found in inlaid items, which can range between 1% and 30% or 40% for very small items;

- a 50% threshold will ensure sellers, buyers and enforcement officers do not have to perform complex, confusing calculations for inlaid items. In a visual review of all the types of item containing different proportions of ivory it is far easier to judge 50% than say, 25%.

31. For these reasons we propose clause 7 is amended by increasing the 10% threshold, particularly as this will assist in simplifying assessment, compliance and enforcement.

June 2018


Prepared 19th June 2018