My Lords, I should like to speak to Amendments 18, 19, 21, 22 and 23 in this group. I will not deal at length with Amendment 17 moved by my noble friend except to say that I have considerable sympathy with it.
Starting with Amendments 18 and 19, the 10% threshold chosen for the Clause 7 exemption is another major aspect of the Bill that has caused enormous concern among those who handle antiques. In Committee in the other place, the Minister, David Rutley, rightly explained that objects,
“such as inlaid furniture or a dish or a teapot with a small ivory handle are not valued on the basis of their ivory content. Further, in such pieces, the ivory is incidental and integral to the item. It cannot be easily removed, so it is not vulnerable to recarving”.—[|Official Report, Commons, Ivory Bill Committee, 14/6/18; col. 92.]
The Minister also made it clear at column 98 that the Government have no intention of unduly affecting artistic and cultural heritage.
There are plenty of objects with, say, 20% or 30% ivory content, and thus where ivory is still not the predominant material, such as inlaid or veneered Indian boxes and antique silver coffee pots, to which precisely the same characteristics apply; they are not valued on the basis of their ivory content. The ivory is incidental and integral to the item and thus not vulnerable to recarving. The Minister in the other place also said:
“It was refreshing and encouraging to hear in evidence that the 20% threshold will work for the vast majority of musical instruments, and that the enforcement agencies feel comfortable that that is a way to take the process forward”.—[Official Report, Commons, Ivory Bill Committee, 14/6/18; col. 109.]
It is therefore a mystery why the Government have opted for a 10% threshold for one group of items and 20% for another. It is inconsistent and it is illogical.
What are the particular features of an object such as an inlaid Georgian tea caddy with 12% ivory inlay that renders it any more likely to be reused or valued for its ivory content than a musical instrument such as a baroque lute containing the same proportion of decorative ivory inlay? In the Second Reading debate in the other place and in the Public Bill Committee sittings, no examples were given by the Minister there of known cases where antique objects inlaid with ivory had been valued based on their ivory content or had been bought for the purpose of having their ivory removed. Neither do I believe were Art Deco bronze and ivory sculptures cited, nor were antique silver tea and coffee services demonstrated to have been sold for these purposes. In fact no evidence has been brought forward by anyone in any of the debates to suggest that where ivory represents less than half of the volume of a historical object, it contributes to poaching.
To discover whether items made from a mixture of ivory and other materials are being bought by people from the Far East, it would be helpful to have some data. Unfortunately, as I have already mentioned, the readily accessible UK export data for ivory held by the CITES secretariat distinguishes only piano keys from other carved items, so we do not know how many inlaid wooden boxes or bronze and ivory sculptures are being exported to China, but I would hazard a guess that the number is very low. It would be surprising if the Animal and Plant Health Agency had evidence of antique items where ivory is not the principal material being purchased in vast numbers and at prices well above the value of their ivory content, with a view to removing the ivory in China and selling it at the low price commanded by second-hand ivory.
The witness from the International Fund for Animal Welfare to the Bill Committee in the other place spoke on 12 June 2018 at column 14 and quoted $450 per kg as the price of raw ivory. A Georgian sterling silver tea pot worth £2,000 might contain an ivory handle weighing 80 grams. Using the IFAW figure, that 80 grams would
currently be worth £36. As an old and pre-shaped piece, it would be worth even less, perhaps only £10. Why would someone pay £2,000 for the purpose of acquiring ivory worth just £10? If they removed the ivory they would also damage the integrity, and thus reduce the value, of the item for which they had paid £2,000.
How should we respond to the grandmother who owns a genuine early Victorian silver coffee pot with an original ivory handle or insulator, who is prevented from selling it and using the £1,800 proceeds to contribute to her grandchild’s university education? No one has demonstrated how a genuine antique of this nature has any connection to the poaching of elephants, so why should its owner be penalised in this way? The Minister in the other place referred in Committee at column 92 to the federal system in the US having a 50% by volume limit combined with a 200 gram weight threshold. It is understood that this restriction applies only in respect of objects that are not antiques.
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For interstate sales of genuine antiques there is no de minimis requirement at all. A visual inspection of an object will usually be all that is necessary to decide whether the ivory content falls above or below a 50% threshold. A 50% cut-off would therefore in fact lead to better levels of compliance by the public. In contrast, a 10% threshold falls right across the middle of the range of ivory contents found in boxes decorated with small pieces of ivory inlay. That 10% means that both the owners of these items and enforcement officers will invariably be required to perform complex calculations to determine the proportion of ivory they contain. There will be uncertainty as to the accuracy of the assessments. All of this is entirely unnecessary because regardless of whether the ivory content falls above or below 10%, small slithers of inlay have no possible re use. It should be noted that the cases where wildlife groups have questioned the age of ivory have always focused on solid ivory carvings and not on objects such as bronze and ivory sculptures or measuring instruments where ivory does not represent the majority material.
While on this subject, I must comment on the misleading information contained in the report recently prepared by the pressure group Avaaz and referred to at Second Reading by the noble Baroness, Lady Jones of Whitchurch. The report involved the radiocarbon dating of 109 solid ivory trinkets acquired from 10 European countries. It found that three-quarters of the items tested were dated after 1947. Its sampling and data presentation left a great many questions unanswered. In fact, it is doubtful whether its approach to data interpretation would have passed the scrutiny of a GCSE statistics candidate. For example, the ivory items chosen were clearly not selected at random because had that been the case, antique cutlery, inlaid boxes or even piano keys would have featured in the results.
The group made one purchase in the Republic of Ireland and managed to conclude on a bar chart that 100% of the ivory in Ireland is antique. Furthermore, not one of the trinkets tested represented the types of historical objects anyone would wish to see exempted from the Bill. Although described in the report as “fake antiques”, these objects were not pretending to
be anything other than the bangles, beads and unsophisticated tourist mementoes that they clearly were. They certainly would not have been described as being of artistic, cultural or historical merit by an experienced professional antiques dealer. For the UK, just five suspicious-looking carvings, including two letter openers, were tested. The most recent of all these was found to date from between 1954 and 1956, a time when there were no restrictions on the cross-border trade in ivory, and British tourists to Africa and the Far East regularly returned from their holidays with ivory souvenirs.
I mention all of this in the context of the de minimis concept to underline that it would be far more effective if the Bill were to focus on solid ivory carvings and objects where ivory is the predominant material. No one has demonstrated problems with objects where ivory is incorporated with other old materials. The dating of such items is easier because the ivory can be judged in the context of the age, craftsmanship, wear and style exhibited by the other materials and the object as a whole. I should also ask: just how is this problematic 10% threshold realistically going to be policed? The register envisaged by Clause 10 will contain many thousands of images of antiques whose ivory content will sway around the 10% mark. A wildlife crime officer sitting at a desk will be unable to make a compliance judgement based solely on a couple of images posted online. Every time officers view one of the many borderline cases, will they be compelled to dispatch an accredited civilian officer to check it out? Would that really be a sensible use of resources for wildlife crime personnel? Choosing a threshold that results in fewer borderline cases would surely represent a much better approach as it would enable officers to direct their energies towards the solid ivory trinkets that represent the area of higher risk.
In summary, so far as the UK is concerned objects comprising less than 50% ivory are no more likely to pose a threat to elephants in the wild than objects containing less than 10% ivory, and the higher threshold would enable a more focused deployment of resources. In France, 20% is the level below which items containing ivory do not need a sales permit. Those with more than 20% ivory need a permit confirming that the items date from before 1947. New York state has a more restrictive arrangement, but also uses a cut-off of 20%. All these other countries seem comfortable with assessing a 20% cut-off and the Minister is happy to use 20% for musical instruments. If my noble friend finds it hard to go over 50%, it would at least bring consistency to what is already a complex piece of legislation if both the musical instrument and Clause 7 thresholds were brought in line at 20%.
Amendment 21 relates to Clauses 7 and 8. To be valid, the exemptions for items of low ivory content and musical instruments require the owner to register them under the provisions of Clause 10. I am concerned that, as it stands, this registration requirement will cause two significant problems. The first I alluded to at Second Reading. My concern was for the many items of domestic antique furniture and other objects that contain very small amounts of ivory, for example the escutcheons around locks on a Victorian mahogany chest of drawers or a small slither of ivory running
around the edges of a jewellery box. Many of the owners of such items could well sell them without even noticing these features and yet, if they did so without registering them, they would be breaking the law.
The Minister’s response to this, in Hansard on 17 July 2018, at col. 1197, was to explain, if I understood him correctly, that the package of penalties would be tailored to the level of misdemeanour. The implication of this was that the penalties would be low for breaches that represented genuine mistake and complete ignorance. With respect to my noble friend, I do not believe it is a wise use of officers’ time and Defra’s or the police’s resources to have to deal with such cases. Whether the fine is £50 or £5,000, forms still have to be completed and statements taken. The hapless people who have made the error will feel aggrieved and resentful, end up wasting a great deal of time, and to what end? It is all because an antique box with a tiny bit of ivory, similar to countless other boxes, was not registered on a government database.
The second problem with registration is that it has the potential to result in the destruction of low-value furnishing items, such as antique furniture acquired by businesses that carry out house clearances. If the charge for registration were set at the current fee level for CITES re-export permits, which is between £37 and £59, it would prove a significant deterrent to the sale of items such as a Georgian toilet mirror with small amounts of ivory inlay and ivory knobs. Ordinarily such an item could fetch just £100 to £150 and bring in a profit of perhaps £50. The time taken by a dealer or auctioneer to register it and the charge for doing so would wipe out their profit and be wholly disproportionate to the problem the Bill aims to address, particularly when these types of items are so remote from anything connected to the poaching of elephants.
If registration proves financially unviable for the seller or their agent, to comply with the law such antiques would need to have the ivory prised from them and be replaced with another material. To be done properly would involve the work of a skilled craftsman, the cost of which would not be recouped from the proceeds of sale of the object—besides which the object would lose its integrity. A toilet mirror with ivory escutcheons on its integral drawers would probably sell for the same price as one featuring decorative wooden inlays and ebony knobs. The one featuring ivory could end up being thrown away by the owner or the dealer because the cost of selling it would outweigh the profit. Is discarding such items truly necessary or appropriate?
Some years ago, there was a campaign to educate the public on the green or environmentally friendly credentials of owning and reusing antique furniture. It went under the title “Antiques are Green”. Work was commissioned to look into the environmental impact of new and antique furniture. The results showed that a modern chest of drawers has a carbon impact 16 times higher than its 1830s antique equivalent. Surely we, and Defra in particular, should be encouraging green behaviour in respect of these items and certainly not forcing them into landfill.
There is clearly no link between offering for sale in the United Kingdom an 1830s chest of drawers containing tiny ivory elements and demand in China for ivory as a commodity, nor is there a link with the poaching of elephants in Africa. As my noble friend Lady Rawlings said at Second Reading, Chinese buyers are unfortunately not drawn to English antique furniture, so they are not buying such items for their own market. Besides, why would anyone pay several hundred pounds to ship to Hong Kong a table for which they may only have paid £200 to an antique dealer in the UK? Dispensing with the need to register those Clause 7 and 8 objects and musical instruments that incorporate very small amounts of ivory would go some way towards addressing the two problems I have described.
Turning to Amendment 22, when assessing the proportion or ivory contained in an object, Clause 7(1)(b) requires the ivory to be “integral” to the piece. “Integral” is then defined as being when the ivory cannot,
“be removed from the item without difficulty or without damaging the item”.
The impact would be that those ivory components that can be readily removed, or were intentionally designed to be removed and reattached, would be treated as separate from the rest of an item, even if the ivory element overall amounted to just 5% of the whole. The removable components would presumably be considered as substantially or even 100% ivory in their own right and would not benefit from the Clause 7 exemption. If the item is one of historical value, but not necessarily of outstandingly high historical value, it would not be saleable without the detachable ivory elements being removed and its integrity compromised.
This seems to me to be mildly absurd. This definition of “integral” is far removed from how the term is normally understood. Take the case of the small ivory knob on an antique mercury barometer, used both to adjust the Vernier on the mercury scale and to adjust the bag of mercury in the reservoir at the foot of the barometer. This is designed as an essential and, in my use of the word, integral part of the original object. The same would apply to the thin ivory lids on the small wooden containers that fit snugly into the compartments of a 19th-century Indian sandalwood sewing box. Those components are no less integral to those pieces than were the inlaid letters in the Chippendale commode I referred to earlier. What is important is that they should be original to the piece.
I fail to see the purpose of the restriction as drafted in the Bill. Is there some fear that components that are detachable are being replaced with modern alternatives? If so, what is the evidence of this? If the knobs or lids I have referred to are no longer attached to the original object for which they were made and are being sold separately, I accept that they should be treated as ivory objects in their own right, but where it is clear they form part of a single object of low ivory content, all the ivory and the entire object should be included in the calculations for de minimis purposes.
On Amendment 23, I have already highlighted the problems that arise from the choice of a low de minimis threshold. Irrespective of the precise drawing of that line, there will always be difficulties in accurately
computing the proportion of ivory found in complex and unusually shaped antique objects. Some may contain voids, the volume of which would be impossible to ascertain without taking the object apart and probably damaging it. In the case of a silver fork with an ivory handle, the metal from the prongs would fit into a drilled hole the size of which can vary considerably between such items and be impossible to ascertain without forcing the two materials apart.
In the art world, both the physical condition of an object and the extent to which its components are original are crucial factors. In this year when we celebrate the 300th anniversary of the birth of the great cabinet-maker Thomas Chippendale, there has been no more painful example of the importance of these factors than the recent revelation that the original inlaid ivory lettering was prised out of a Chippendale cabinet and replaced by ivorine prior to offering it for sale. My noble friend referred to that earlier. In the event, the piece valued at several million pounds failed to sell. That the climate of uncertainty and panic caused by overzealous legislatures should make the owner of a masterpiece of that nature consider such an action is frightening and should serve as a flavour of the problems that lie ahead if we rush into this. Even if no physical damage was caused by the removal process, the damage to the integrity of the piece represented nothing short of vandalism, as my noble friend said.
I hope that the Minister would thus accept that, in order to ascertain the proportion of ivory in an object, it should not be necessary for anyone even to consider carrying out any act that could run the risk of irreversibly damaging it. It should be accepted that this should apply to both the owner and any officer checking their calculations. This could mean that the actual proportion of ivory and the readily measurable proportion sometimes differ, but I see no reason why this should present a problem.