Thirty Sixth Report Contents

Appendix 1: Ivory Bill: Government Response

Letter from Lord Gardiner of Kimble, Parliamentary Under Secretary of State for Rural Affairs and Biosecurity at the Department for Environment, Food and Rural Affairs, to the Rt Hon. Lord Blencathra, Chairman of the Delegated Powers and Regulatory Reform Committee

The Government is grateful for the report from the Delegated Powers and Regulatory Reform Committee on the Ivory Bill.

The Government notes that the Committee made recommendations to:

Clause 2(3)(c)—guidance on other matters to be taken into account when assessing pre-1918 items of outstanding artistic etc. value and importance

This provision allows the Secretary of State to issue statutory guidance on “other matters” that must be taken into account when assessing whether an ivory item meets the criteria for the exemption titled “pre-1918 items of outstanding artistic etc. value and importance” and should therefore receive an exemption certificate to enable the owner to deal in the item. These other matters would be in addition to the rarity of the item and the extent to which the item is an important item of its type, which are set out on the face of the Bill in clause 2(3). Defra will be working with the Department for Digital, Culture, Media and Sport to establish these other matters, which will draw on existing criteria used by the Government to assess works of art for pre-eminence and national significance.

The Government notes the Committee’s concern that it is open to a person to decide not to follow guidance if that person considers that there are good reasons for not doing so in the circumstances of a particular case. The statutory guidance made under this clause would be addressed to everyone, including the public and prescribed institutions (museums, etc.) rather than a single public body. Nevertheless, we have decided to accept the Committee’s recommendation with regard to the above clause to provide greater certainty for the institutions and applicants alike. We therefore intend to amend clause 2(3)(c) so that other matters are prescribed in regulations made under the negative procedure.

Clauses 3(1)(g) and 10(1)(f)—guidance on information that must be included in applications for exemption certificates and self-registration

These provisions provide the Secretary of State with powers to set out in guidance additional information that must be included in applications for exemption certificates for “pre-1918 items of outstanding artistic etc. value and importance”, and applications to register exempt ivory items. The intention was to provide some flexibility to require additional information that is not already listed in clauses 3(1) and 10(1).

Ongoing work on the application processes has revealed that the criteria listed under clauses 3(1) and 10(1) provides all the information we are likely to need to issue exemption certificates and accept registration requests. It is therefore unlikely that we will be issuing statutory guidance setting out additional information needs. Given this, we think it is reasonable for any additional information needs that may be needed in the future to be subject to Parliamentary scrutiny–particularly if such further information will increase costs and burdens on applicants. The Government is therefore pleased to accept the Committee’s recommendation to specify additional information requirements in regulations made under the negative procedure.

Clauses 4(8) and 11 (5)—guidance on the manner and form in which applications must be made

These provisions, like those above, provide the Secretary of State with powers to set out in guidance the manner and form in which applications must be made. The intention was to use this power if the Government wanted to restrict the way applications could be made (for example, if we wished to allow online applications only).

The Government has decided to allow maximum flexibility with regards to how applications may be made, and will therefore be removing these powers from the Bill. Applicants will be able to apply online, or they can download forms to be completed in hard copy for postal submission. Applicants will also be able to telephone or email requests for copies of forms to be sent to them by post. This is to reflect the diversity of persons that may wish to submit applications which may range from private individuals without internet access to well-equipped auction businesses.

Clause 5(3)—appeals

This provision allows the Secretary of State to set out in regulations an appeals regime for when an applicant is refused an exemption certificate for a pre-1918 item of outstanding artistic value and importance or when a certificate is revoked. The Committee has recommended that we set out more details on the face of the Bill rather than leaving matters to be prescribed in regulations.

The Government is now in a position to announce that appeals under clause 5 will be handled by the First Tier Tribunal. We therefore intend to amend the Bill at Report in the House of Lords to reflect this. We partially accept the Committee’s recommendation in other respects by inserting some of the grounds on which an appeal may be made on the face of the Bill. These grounds will be that the decision was made on the basis of an error in fact or law or that the decision was unreasonable. We also intend to include the powers of the Tribunal when accepting or rejecting an appeal (for example, order the Secretary of State to issue the exemption certificate). However, we intend to retain the power to prescribe additional grounds and to set fees for when a person applies for an appeal. This is consistent with powers to make appeal regulations relating to appeals against the imposition of civil sanctions as provided in Schedule 1 of the Bill (for example paragraph 2(6)).

Paragraph 21 of Schedule 1—guidance as to enforcement

This provision requires the Secretary of State to issue guidance on how he will exercise his enforcement powers under the Bill. The guidance provision in Schedule 1 is broadly based on those in sections 63 and 64 of the Regulatory Enforcement and Sanctions Act 2008. The guidance under that Act is not subject to a Parliamentary scrutiny and we note that similar guidance to be made under section 59 of the recent Space Industry Act 2018 (which applies the above 2008 Act) will also not be subject to any Parliamentary procedure.

The Government is grateful to the Committee for its consideration of this duty, but we do not think that the civil sanctions regime supporting the ivory ban should be treated differently to those for other regulatory regimes. This guidance will only provide information on how the Secretary of State will exercise his powers to impose civil sanctions and is not directly addressed to a specific public body or sector. As with other civil sanction regimes, the Secretary of State will be under a duty under paragraph 21 (7) of Schedule 1 of the Bill to consult before publishing or revising this guidance.

Again, I would like to thank the Committee for its work in considering the Bill and I hope this information proves helpful.

17 October 2018





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