My Lords, I thank the noble Baroness for her amendment, which would prevent a person applying for a Clause 5 appeal more than once. As drafted, the Bill will allow applicants to appeal a decision either to revoke or refuse the issuing of an exemption certificate for a pre-1918 ivory item that is a rare and important example of its type, so that it can be protected by an exemption. Clause 5 will enable the details of the grounds to be set out in secondary legislation. Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee has questioned this approach and recommended that more details should be set out in the Bill. We are grateful to the Committee for its consideration of the Bill. We are carefully considering its recommendations and will respond in due course and, if necessary, seek to amend the Bill on Report.
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We would of course be concerned if unnecessary, vexatious or frivolous appeals undermine confidence in the exemption certificate regime or create uncertainty for those wishing to submit their own applications. However, a person who launched an unsuccessful appeal would not be able to apply for a second appeal if he or she simply disliked the decision of the appeal body. There would have to be a legal basis for the second appeal, such as an alleged material error in the appeal body’s decision. In such cases, it would be appropriate for an application for judicial review to be made before the court, so that the court can hear the case against the appeal body’s decision. That would be the appropriate judicial process, as opposed to restricting one’s right of appeal on the face of the Bill.
The grounds on which a failed applicant could make an appeal application will be set out in legislation. I would refer, as an example, to paragraph 2(6) of Schedule 1, where a person questioning the decision to impose a monetary civil sanction would have to ensure that a ground of appeal has been satisfied. The grounds of appeal would include circumstances where the decision was based on an error of fact, was wrong in law or was unreasonable.
My noble friend Lord De Mauley’s amendment would provide that appeals may be heard only by qualified experts in the item that is subject to the appeal. Such matters may be set out in regulation, but the
Delegated Powers and Regulatory Reform Committee has recommended that an appeal body should be named on the face of the Bill. As I have already mentioned, we are carefully considering the Committee’s report and will respond before Report. I should say—I think this is an important point for my noble friend—that the appeal body will be able to call on evidence from experts.
The amendment may also limit the options around granting the appeal role to an existing body. Setting up a new independent appeal body purely to hear appeals under Clause 5 would be disproportionate and costly, in our view, and would push up the overall costs of the ivory regime.
I hope that I have reassured the noble Baroness about the legal position on the matter of an appeal in this instance and that she will feel able to withdraw her amendment.