(2 years, 3 months ago)Public Bill Committees
The Committee consisted of the following Members:
Chairs: Steve McCabe, †Mark Pritchard
† Cameron, Dr Lisa (East Kilbride, Strathaven and Lesmahagow) (SNP)
† Chalk, Alex (Cheltenham) (Con)
† Courts, Robert (Witney) (Con)
† Davies, Mims (Eastleigh) (Con)
† Debbonaire, Thangam (Bristol West) (Lab)
† Donelan, Michelle (Chippenham) (Con)
† Harrison, Trudy (Copeland) (Con)
† Hayman, Sue (Workington) (Lab)
Hoare, Simon (North Dorset) (Con)
† Latham, Mrs Pauline (Mid Derbyshire) (Con)
† McCarthy, Kerry (Bristol East) (Lab)
† Pollard, Luke (Plymouth, Sutton and Devonport) (Lab/Co-op)
† Rutley, David (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
† Smith, Henry (Crawley) (Con)
† Sobel, Alex (Leeds North West) (Lab/Co-op)
† Turley, Anna (Redcar) (Lab/Co-op)
† Twist, Liz (Blaydon) (Lab)
Gail Poulton, Committee Clerk
† attended the Committee
Chief Inspector Lou Hubble OBE, Head of the National Wildlife Crime Unit
Grant Miller MBE, Border Force Senior Officer, National CITES Team, Outdoor Division, CITES Border Force Team at Heathrow
Anthony Browne, Chairman, British Art Market Federation (BAMF)
Mark Dodgson, Secretary General, British Antique Dealers Association
Emma Rutherford, Consultant for Portrait Miniatures, Philip Mould and Company
Paul McManus, Chief Executive, Music Industries Association
David Webster, National Organiser—Live Performance, Musicians Union
Hartwig Fischer, Director, British Museum
Dr Antonia Boström, Keeper—Sculpture, Metalwork, Ceramics and Glass
Anthony Misquitta, General Counsel and Secretary to the Board of Trustees, Victoria and Albert Museum
Public Bill Committee
Tuesday 12 June 2018
[Mark Pritchard in the Chair]
Examination of Witnesses
Chief Inspector Lou Hubble and Grant Miller gave evidence.
We will now hear oral evidence from the National Wildlife Crime Unit and the CITES Border Force team at Heathrow. We have until 2.15 pm for this third panel. The air conditioning does not appear to be working so well today, so if people want to take their jackets off, feel free to do so. For the record, will the witnesses introduce themselves?
Grant Miller: I am Grant Miller, senior officer with the Border Force based at Heathrow, leading the CITES team that enforces the UK’s obligation to the convention.
Chief Inspector Hubble: I am Chief Inspector Lou Hubble, head of the UK National Wildlife Crime Unit. We work with police forces throughout the UK, supporting them in enforcement. We also collate and disseminate intelligence throughout the UK and internationally in relation to wildlife trade.
Q 57 How do the two different roles that you have interact, and how do the two organisations work? How are your resources at the moment? Do you have sufficient resources should the Bill become law? Would you need any further training or resources, and what impact would that have on your current roles?
Grant Miller: Our roles are quite distinct, which allows us to work hand in glove. The Border Force role is to disrupt the illegal trade—import/export—and trans-shipment of ivory through the UK. Our focus is largely on the export of our historically held ivory, which is traded over online auction houses and is then shipped predominantly to China and Hong Kong, but there is an emerging market in Vietnam for those goods as well. Border Force no longer has an investigation function; we hand all our intelligence from investigations to the National Wildlife Crime Unit with a view to it investigating those offences. So they are very much clear roles that allow us to work in partnership.
With regard to resources in Border Force, we have a dedicated unit that has been established for 30 years now and a team that is regarded as probably one of the best in the world at enforcing controls against the illegal wildlife trade. It is a team of 10 staff with national responsibility. We are, however, supported by every other uniformed Border Force officer, who has a basic level of skill in being able to identify animal and plant products.
Like every law enforcement manager, we could always use more resources and could always deliver more. However, what a small, highly focused team with clear objectives gives us is an easily moveable unit to actually address the changing risk. It allows us to be a lot more dynamic in addressing the risk and very flexible in moving from postal to air to maritime environments. At the moment, against the Border Force control strategy, our resourcing is adequate to control the threat.
Chief Inspector Hubble: When Border Force makes seizures of items being exported from the UK, it passes that intelligence to us. We collate that intelligence, develop it and research it to look at the number of items that people might be buying, selling or trading. We look at their associates. We try to map a network of people that they are linked in with, and ultimately we produce an intelligence package that goes out to a police force in the area where the person is committing the offences.
We have four officers who provide an investigative function to support police forces on the ground, and they work with police officers throughout the investigation: taking statements from witnesses, linking in with experts, compiling prosecution files, assisting with search warrants, and attending court to provide evidence. Due to our limited resource, we have to be really selective in what we deal with, so the number of investigations that we get where people are trading at a lower level would generally be sent to local policing to deal with. As a national unit, our focus has to be on those who are trading more and more products. Ultimately, that is where we can make a difference, linking in with the bigger players and those trading internationally.
One seizure by Border Force can result in months and months of investigation for us, and we can compile hundreds of intelligence logs from that one investigation. At the moment, we struggle to disseminate all that intelligence back out to Border Force, to close that loop, because we just do not have the resource to develop that. We have to be selective in what we deal with, but we certainly support Border Force in the work we all do on a day-to-day basis, and we welcome the introduction of the Bill.
Q There are other jurisdictions around the world where there have been ivory bans. What sort of best practice do you feel can be gleaned from those other places—the United States perhaps most notably? What lessons do you think we can learn and apply when this legislation is passed for the UK?
Grant Miller: Chief Inspector Hubble and I were fortunate last year to do a training mission in South Africa for seven sub-Saharan Africans, in conjunction with the Chinese CITES management authority. During that workshop, the Chinese presented their comparative interpretation of the US ban and the Chinese ban and of the impact of these. It became evident that their view was that the Chinese ban was far more robust and had delivered closure of the trade. They felt that the US ban had left so many exemptions that the trade was allowed to continue despite there being a ban. If you accept their argument, we would like to see enforcement having to allow as few exemptions as possible so that the ban is, in reality, a ban on the ivory.
Q May I ask a quick supplementary question, Mr Pritchard? Just to be clear, would it make both your jobs much easier, in terms of enforcement, if exceptions were kept to an absolute minimum?
Grant Miller: From a Border Force point of view, we have two issues: establishing that it is ivory and then whether it is permitted. If those are identified, an offence has been committed. The more exemptions you have, the harder it becomes for the police to enforce.
Chief Inspector Hubble: I echo Grant’s comments. From an enforcement perspective, any Bill has to be enforceable; if not, it is just guidance. It is not legislation if it cannot be enforced. Within the Bill, we would welcome the minimum number of exemptions.
We also have some concerns that, as the Bill stands, we have to prove that it is ivory and that the person dealing in it knew, or ought to have known, that it was ivory. If you look on eBay at any given moment, you will find a number of items being offered for sale that are not labelled as ivory. From an enforcement perspective, if someone is buying something that is not labelled as ivory, and they are selling it as something not labelled as ivory, how do I prove they knew it was ivory? With the Bill as it stands, that, for me, is a real concern from an enforcement perspective. The onus should be on them to prove that they did not know, not on me to prove that they did.
Q I would like to ask about the internet trade in ivory. I was interested in your points about the exemptions, because we heard from some witnesses this morning that having a blanket ban on internet trading in ivory would be helpful. Would that be helpful, from your perspective?
Grant Miller: I do not think that a ban on trade is ever a good thing. The internet for me is cyber-enabled crime. It is merely a means to communicate better. The goods still have to cross borders. Canalisation is a customs tactic. Routing goods through set points is still a robust means to control the trade.
The online auction houses could do more to self-police. I think they avoid the issue. For instance, on the ivory listings we often see photographs of the ivory clearly showing Schreger lines, and questions have to be asked as to why someone is posting a photograph of Schreger lines. The other thing that has come up on listings on online auction houses is the weight of the goods. Again, when the trade first started to emerge, the weight was never shown. That now features on almost every single item. In effect, the ivory is sold per kilo. There should be better controls, but I do not think banning it completely is ever a good thing to do.
Q I am thinking of internet sales. The suggestion was that if we just said, “You don’t trade ivory online,” that might be easier to enforce.
Grant Miller: It is misdescribed online. It is not sold as ivory; it is sold as ox bone. eBay has taken steps to say that ivory cannot be listed, but when individuals do not list it as ivory—“Chinese artefact” is another term that is used—how do you establish that it is ivory, and where do you stop controlling the trade and saying it is not allowed?
Q On the wider issue of enforcement, do you think the Bill covers the internet trade sufficiently?
Grant Miller: From an enforcement point of view, our default position will be to go to the Customs and Excise Management Act 1979. The Bill establishes a prohibition on dealing ivory. That Act gives us far stronger enforcement powers and greater potential sentences—up to seven years and an unlimited fine. The Bill defines the offence, and I think it will give the police additional powers, but we would go for the “knowingly concerned” provision under the management Act. The Bill widens that slightly by referring to what a person should reasonably be expected to know. There may be some room for the Bill there, but from a Border Force perspective, the management Act provides us with all the powers we need to police any prohibition.
Chief Inspector Hubble: From a police perspective, as we have seen on eBay, if you ban the trade in ivory, people will not call it ivory. At the weekend, there were more than 1,400 items offered for sale on eBay as “bovine bone”. From the photographs of those items, I can see that a significant number of them are actually ivory, but it would not be practicable to issue a warrant for every single one of those 1,400 people selling ivory—we cannot achieve that. Some of them will be one-offs, where they have sold only one or two items; some of them sell it time and again as bovine bone. If they buy it as ivory and sell it as bovine bone, clearly they know it is ivory. If they buy it as bovine bone because somebody else has misdescribed it and they sell it as bovine bone, how do I prove that they knew it was ivory? I cannot.
Q Do you think there are measures that could be added to the Bill that would help with enforcement?
Chief Inspector Hubble: I would love to have a dedicated cyber-team looking at this day in, day out, with real training and a focused effort. Lots of people in the NGOs we work with are doing work around cyber-related crime. We are in the process of setting up a cyber-working group to try to pull some of that effort and interaction together and to have that group as a priority delivery group alongside the priority delivery groups we have for the other six UK wildlife priorities. That is going to be a significant resource. I am not sure whether it is too big to manage, but we felt we had to do something to try to get people sitting around the table and working together.
Q You have already explained that the UK Border Force is globally recognised, particularly around the illegal wildlife trade. Have the practices used by the UK Border Force been adopted by other countries around the world?
Grant Miller: Yes, they have. Most recently, we and the National Wildlife Crime Unit did three training missions to Malawi. We first brought Malawian enforcement to the UK and then delivered three workshops out there, and they have adopted the UK model of having a wildlife crime unit to handle all the intelligence, with clearly defined roles. Our environmental security taskforce meets every six months to plan operational activity. The Border Force has trained in more than 50 countries globally—most recently in South Africa, as I said. We are doing work in Hanoi, Mongolia and Cambodia, where we hope to deliver in the next year. So yes, exporting our knowledge and working practices does go on and is proving successful.
The Border Force has also deployed 28 officers into Africa, and it is expanding a similar sized team in Asia to build general customs capability. Illegal wildlife trade will be one strand that is focused on. On World Environment Day a couple of weeks ago, an operation into illegal wildlife trade was run in Nigeria by UK Border Force officers. It identified eight dirty suitcases full of ivory that the Nigerian authorities had forgotten about.
Q How do you identify the difference between elephant ivory and any other ivory?
Grant Miller: Elephant and mammoth ivory has distinctive markings called Schreger lines, and the angle of those lines will identify whether it is elephant or mammoth. Other ivory forms have very distinctive shapes or formations. For instance, hippo teeth tend to be quite triangular in shape, which affects the styles of carving and so on that can be done. We also deliver training, and all our officers have modules that teach them the techniques of identifying the five main types of ivory that we encounter at the border.
Q It sounds as if raw ivory—if that is how we might term it—is easier to identify, but once it has been crafted into an object, does that become much more difficult?
Grant Miller: If ivory is highly polished, the Schreger lines can become more difficult to identify, but again we generally have the skills within the team to do it. If we do not, we reach out to experts. We will predominantly go to the National Museum of Scotland and Andrew Kitchener, who will always provide expert advice, from an academic, about what we are looking for.
Q The work you are doing is so very important, but I am wondering whether the National Wildlife Crime Unit has any indication of continued funding beyond 2020. When will you know whether funding will continue?
Chief Inspector Hubble: Our funding is committed until 2020, but beyond that we have had no formal indication that we will continue to be funded. That does cause concern. It is difficult for us to plan and commit to long-term strategies, and difficult for us to form business plans when in 20 months’ time we may not exist. It is difficult for me to keep my staff motivated when they have no job security—a whole raft of concerns are caused by funding.
Q In terms of the Bill, how important is it that that funding is put in place so that you can achieve the necessary long-term plans?
Chief Inspector Hubble: We act as a centralised hub throughout the UK to collate intelligence, and we work with all 43 police forces on that. I am sure you are all aware of the strains on modern-day policing at the moment, and dealing with ivory is probably not at the top of the list when they are looking at terrorism, child sexual exploitation, human trafficking, drugs and firearms. Ivory will not be up there with that, but as a national unit we can drive the issue and make sure that things are investigated as they should be with police forces. Without that central resource, it would very much be down to individual forces to decide what they do or do not deal with, and I fear that ivory may drop off the radar with some of them.
Q Do you have any comments on the importance of that?
Grant Miller: The Border Force is centrally funded through the Home Office, and CITES enforcement sits as a medium priority for Border Force. Because we are mandated to enforce the CITES regulations and the convention, we must exist to authorise and endorse the permits. There is no indication that the team is under any threat from Border Force management.
Q But you said you work in partnership.
Grant Miller: Certainly with the unit, and it is about the added value of our relationship with them. Border Force could exist and we would go out, detect and disrupt the trade. If we were to lose the unit, the capacity to then investigate and prosecute would be lost, but our key function would still continue, and we would detect and disrupt.
Q I have a question for each of you. Chief inspector, you talked about this maybe not being seen as that important by some officers, because they obviously have lots of other things to do. What is the smallest artefact that you might have dealt with, and what is the largest—to give us an idea of the range of things that you do?
Chief Inspector Hubble: Would you like to ask Grant his question, while I ponder my response to that one?
Q But you said that you do intercept stuff, that you look on eBay and that there are 1,400 things that you have not got time to look at. What would be the smallest that you would—and I do not mean this as a criticism—bother with?
Chief Inspector Hubble: If we find somebody who is selling a few items, we would probably work with local police to go and educate that person rather than go for a full prosecution, because part of our work is about prevention. Ultimately, it is not about locking up the bad guys; it is about there not being any bad guys in the first place. If we can work with people and prevent them from committing crime, that has to be a good starting point. If we have low-level criminality, we would approach and deal with it that way.
We have an ongoing investigation at the moment, which I cannot talk too much about. We did a warrant earlier this year where we recovered a significant number of CITES specimens, including ivory, and we are continuing to push that forward. Watch this space for the outcome of that one. Our workload and work remit are significant across the whole spectrum of wildlife crime, from the really low-level individual to the significant traders making lots of money from the illegal wildlife trade.
Q Mr Miller, you said it was quite easy to detect mammoth compared with elephant ivory. We were looking this morning at whether we get this narrow Bill as quickly as we can and then widen the numbers of animals—that includes mammoth ivory—beyond the CITES regulations. If you are only looking at CITES, and we then passed a Bill with other things in the future, where we added in animals that are not on your list, such as warthog and mammoth—that is not going to save a mammoth’s life, but it will stop people in places such as Hong Kong selling ivory as mammoth to get it through customs—would your brief be able to encompass that? Would you be able to encompass that if we widened the brief beyond CITES, or are you strictly CITES-only?
Grant Miller: No, we are not. The Bill, as it is scheduled at the moment, would list those items as prohibitions, and Border Force’s role is to secure the border against all prohibitions. So that would naturally fall into our remit, and we would be in a position to police that, if that was Parliament’s wish.
Q It would not be a problem if we widened it out.
Grant Miller: No, it would not be a problem.
Q May I just return to what the chief inspector was saying about how to prove if somebody knows it is ivory, particularly if it has been misdescribed. We have discussed in the past adding something around misrepresentation of an item to clause 1 to cover selling something that has been fraudulently mislabelled so as to avoid detection. Presumably, you would still then have the difficulty of proving that somebody had misrepresented it—that somebody knew it was not bovine bone or whatever.
Chief Inspector Hubble: Yes, we would still have to prove that they knew it was ivory and that they had then mislabelled it, knowing that it was ivory.
Q Adding a provision that covers mislabelling does not get us very far, unless you have absolute liability in terms of buying and selling.
Chief Inspector Hubble: All the time that the burden of proof is on us to prove that they knew, that is difficult from an enforcement perspective. If the burden of proof was on them to prove that they did not know it was ivory, that would make enforcement much easier.
Q Bovine bone does not sound particularly appealing if you are buying something of ornamental value. Is it very well known within the business that it really is ivory?
Chief Inspector Hubble: Absolutely.
Q Absolutely, but it is very difficult to show that.
Chief Inspector Hubble: That is because eBay banned ivory as a listing two or three years ago: eBay was openly selling ivory and an approach was made to it to say, “This is illegal, you cannot do this.” It took the ivory category down, so now people call it bovine bone or ox bone, but clearly it is still ivory.
Q You are not going to catch those people on the mislabelling; they have to have absolute liability and the burden of proof is on them. That is the only way you will catch those people.
Chief Inspector Hubble: Absolutely. In general, we do not deal with the people who will apply for exemption certificates and who will register their items and apply for permits, because they are the responsible, law-abiding people. We deal with the ones who have a complete disregard for policy protocol legislation. We deal with the ones who are deceptive, who lie and who want to make money out of this. The burden of proof has to be manageable and has to be able to be enforced, otherwise it is not enforceable legislation.
Q As you said, you police this by starting with a ticking off. If somebody genuinely thought, “That looks pretty,” and bought something on eBay without thinking of or knowing the consequences, you will not come down hard on such people, will you? It will be the people who you know to be in the business.
Chief Inspector Hubble: We have to apply a proportionate response to any investigation that we undertake, based on what they are doing, what they have done before and whether they are willing to engage through an education process or a preventive measure. All those factors determine the outcome and the sanction.
Q If the burden of the proof was on the person buying or selling, you would not end up criminalising lots of people who are just buying things innocently, because you could be trusted not to go steaming in with armed police officers.
Chief Inspector Hubble: Absolutely, yes.
Q To come back to Lisa’s lines of questioning, the future of the National Wildlife Crime Unit is uncertain—it could close in March 2020. What would the implication be for the enforcement of the measures in the Bill as it stands if the funding were discontinued? What pressure would that put on Border Force and how would the police deal with the Bill?
Grant Miller: Our ability to take cases and offenders before the courts would be impacted on greatly. We would be pushed into going out to each constabulary, looking for a supportive senior manager to take on an investigation on our behalf. If we were not able to find that, our activity would be just to disrupt and seize, and the threat would just continue. We share intelligence—we are very much a data-driven organisation—to get our targets and to know where we are working. If we do not get that feedback, ultimately we will become a self-fulfilling prophecy.
Q We have heard a lot today that this is an international crime that crosses many borders. How do you operate with police forces and other border organisations around the world? Will the Bill support you in doing that? How much of an impact will your lack of resource have on your ability to work with those throughout the market around the world?
Grant Miller: We work very closely with Interpol, the World Customs Organisation, the United Nations Office on Drugs and Crime and the CITES Secretariat. In October last year, I took the chair of the Interpol wildlife crime working group, a global executive that co-ordinates and provides advice to the Interpol environment directorate on our activity. We are very well connected.
I am delighted to say that during the London conference on 10 and 11 October, we will host the Interpol wildlife crime annual conference, from 8 to 12 October. It will probably bring together in the region of 90 countries, to work through a five-day workshop along with civil society and academia, to develop intersessional projects that Interpol can work on to tackle the illegal wildlife trade. We are well connected.
We deliver training on behalf of the World Customs Organisation, in Operation INAMA, which is an African-based operation that assesses an organisation’s capacity to enforce the controls against the illegal wildlife trade. Border Force contributed heavily to its design and it is now moving on to the fifth country where the assessments will be delivered. Last month, 90 countries took part in a global operation called Operation Thunderstorm. Its results are embargoed until 20 June, but I can share with you that ivory exports from the UK were targeted, and we had some great successes. Those investigations are still ongoing with the National Wildlife Crime Unit.
Q Are you reliant on the ability of forces abroad to provide you with evidence so you can bring these offences to prosecution?
Chief Inspector Hubble: Our role is to collate intelligence for people who are living outside the UK, and to disseminate it through appropriate channels to relevant countries. The National Wildlife Crime Unit sits on a number of working groups with Europol and Interpol to target the illegal wildlife trade. Last month, I went out to Vienna to speak at a United Nations Office on Drugs and Crime conference on how corruption facilitates the illegal wildlife trade. We work very closely with Border Force in delivering training in other countries to try to get that message across.
Order. The microphones seem a little low today, and some colleagues are saying it is difficult to hear. May I encourage everybody to project and to articulate clearly? I am sure that will not be a problem for colleagues. A little louder, please.
Q Apologies—I have my back to colleagues when I am facing this way. My final question is a very practical one. How many members of staff do you have in your teams, and how many cases have you taken through in the past year?
Grant Miller: Border Force has a team of 10, and last year was our best seizing year. It was not good for civil society. In excess of 1,000 seizures were delivered during the year, across all commodities.
Chief Inspector Hubble: I have a team of 12. I have four investigative support officers working on the ground, supporting police forces, two analysts, three intelligence officers, one indexer and an office manager. I do not have the figures to hand for how many investigations we have been involved in, but every seizure that comes from Border Force will come to us. We also work across six of the UK wildlife crime priority areas. CITES is one of those priority areas, but we have a significant remit outside CITES, looking at domestic wildlife. Bats, badgers, bird of prey persecution, freshwater pearl mussels and poaching all sit within UK strategic priorities at the moment, and our work is split between all those areas.
Q I think people watching this at home will be utterly amazed that there are only 10 and 12 people in your organisations fighting this, given the huge impact you are having, and that the funding for such small organisations after 2020 is still in doubt. I want to ask a question about how you are going to work with the regulator on this, but an awful lot of people will be amazed at the work you do, so I want to thank you for that.
The Government have said that the Office for Product Safety and Standards will be the responsible regulator. How do you see your respective organisations interacting with that new regulator in this respect?
Grant Miller: We would look to engage with it very early on. In the UK, we have a body called the CITES priority delivery group, which brings together all the actors involved in this, and we would certainly look to invite it to sit on that. The contribution it can make is through intelligence. If it identifies goods that may be imported or exported, it must get that intelligence to us to enable us to target better at the border. Having another organisation involved in the fight adds more strength. We are looking at developing our productive relationship with it.
Chief Inspector Hubble: We would be keen to establish protocols very early on. The Bill gives it the authority to inspect premises and apply for search warrants. We are keen to ensure its activities do not jeopardise ongoing enforcement operations, so it is key that we all link together to ensure that, if we are looking at the same people, we have a targeted, focused approach to dealing with them.
Q On that point, one of the areas the Bill Committee is looking at is whether the scope should include elephant ivory or just ivory. When it comes to your enforcement activities, if the scope were to include other forms of ivory—walrus, narwhal, sperm whale, and such types—does that fundamentally change the quantum of the task that you and the new regulator have to carry out? Is it a huge amount of work? How would you categorise the additional activities that extending the scope would mean for your work?
Grant Miller: I do not think there would be a great expansion for us. Many of the species that you could be looking at, for example, hippopotamus, etc., are already listed on CITES. If we were to see them on import or export and there were no permits, our action would still be the same to seize and refer.
If mammoth ivory or warthog, that have been mentioned, are brought in, we have the ability to detect them, but we are not taking any seizure action. We are almost doing half of it. We are detecting it, but we are not then building the case and making the referral. I think the increase in work would be marginal for us at the border.
Chief Inspector Hubble: The role of policing throughout the UK is to uphold and enforce the law and deal with those who break it and we will continue to do that. From an intelligence perspective, we currently do not have any evidence to suggest that the trade around those other species is of significant number to warrant anything. We have to look at priority species that we deal with. In CITES, we have a number of priority species that we look at that have been raised there either from a conservation perspective or from a volume crime perspective. We would have to be intelligence-led and guided by scientific authorities before we would be able to put them on the Bill, because we have to be intelligence-led as a police unit.
Q I want to come back to the internet because it is a big challenge. Assuming the Bill goes through, and I see no reason why it should not, the situation will only get worse with illegal trade on the internet. We had a quick look on eBay and the number of items that just pop up is staggering. As you said, the descriptions were “bovine bone”, “ivory coloured”, “resin” and all sorts of things. When you look at them, I would worry that they were really ivory.
I do not know how we tackle this. This may sound naïve, but I do not know the answers. Do you have the ability to do “stop and search” random checks on items being sold from eBay, for example? Is that something that the police can do? If you looked at something and thought it was ivory, would you have the power to go in and check it?
Chief Inspector Hubble: If the information is in the public domain and the item is being openly sold on eBay, we can take screenshots, get details of the seller of these items and our intelligence function would do some research with eBay to look at other items that they have bought and sold. We would start to build that intelligence package with a view to going out to police forces to get some enforcement action taken.
Q With that in mind, would it be useful to have some sort of legal responsibility on website owners to ensure to the best of their ability that they were not selling illegal products? Is that a possibility? I am trying to think about ways in which we could potentially tackle this.
Chief Inspector Hubble: The Bill provides for an offence of facilitating.
Q Could that be made stronger to enable you to do your job better?
Chief Inspector Hubble: The approach to eBay initially got ivory removed as a category. People are now selling it as all the things that you have just looked at, and eBay will argue that it has too many items to police each one of them. It has a legal framework in place and anybody who tries to take eBay to court for facilitating an offence under the Bill is a braver person than I am.
Q Does eBay have some sort of contract with its sellers to say that sellers should confirm that what they are selling is not illegal? I do not know. I am just chucking out questions.
Chief Inspector Hubble: I do not know.
Q I wonder if that is something you could look into. Where do you put the burden of proof? Is it possible to get internet sellers to sign up to a contract?
Chief Inspector Hubble: We would certainly welcome better self-policing and self-regulating by online auction houses with some responsibility on them for the items that they are making money from the sale of. I do not know how we do that.
Q I join members of the Committee in thanking you and your teams for the work you are doing and also for the way in which you are leveraging the rest of the Border Force or the wider police force available to tackle this crime—we are very grateful.
To go back to the regulator for a minute though, do you both agree that having the regulator in place will help you with your work, because it will help to raise awareness of the new regime that will come into place, and because it will work with the antiques sector and musicians to help to improve compliance and assess compliance in future? Would that help you with your work?
Grant Miller: It would certainly help us. We have found the antiques trade to be very receptive. We have delivered training sessions to it on the rules and regulations, and generally, the larger auction houses have been keen to work with us and to drive the illegal trade out of their supply chain. An increased resource—another body—actually going round and delivering a prevention message, and helping and enabling an understanding of the controls, will assist us, but an awful lot of the illegal trade at the moment sits outwith the regular auction houses. It is private individuals who are sourcing ivory from car boots, house clearances and so on, and that illegal trade will continue. They have no intention of complying with any rules or regulations, so that market will continue for us to police.
Chief Inspector Hubble: From an enforcement perspective, we echo those thoughts about working with auction houses. We are regularly contacted by people within the industry for advice—for them to satisfy themselves that they are complying. Although it is good to raise awareness of an issue, ultimately that may result in increased reporting of it. Once the Bill comes into force, if a member of the public sees something on sale that they think is ivory, inevitably they will report it, which comes back to the issue of resourcing and how we deal with the potential increase in the volume of crimes that we will have coming in to us.
If there are no further questions from Members, I thank the witnesses for their evidence and we will move on to the next panel.
Examination of Witnesses
Anthony Browne, Mark Dodgson, Emma Rutherford, Paul McManus and David Webster gave evidence.
We will now hear oral evidence from the British Art Market Federation, the British Antique Dealers Association, Philip Mould and Company, the Music Industries Association and the Musicians Union. We have until 3 pm for this fourth panel. I invite the witnesses to introduce themselves for the record. I call David Webster first.
David Webster: Thank you very much. I am David Webster, the national organiser for live performance for the Musicians Union. We represent 30,000 musicians across the UK in collective bargaining and general representation.
Paul McManus: My name is Paul McManus. I represent the Music Industries Association, which is the trade body for the musical instrument industry that has been around since 1882 when it started as the Piano Manufacturers Association. We represent the shops that sell the musical instruments, the luthiers who make them, the manufacturers, the distributors and the music educators.
Emma Rutherford: I am Emma Rutherford. I am a consultant in portrait miniatures for Philip Mould and Company.
Mark Dodgson: I am Mark Dodgson. I am the secretary general of the British Antique Dealers Association, otherwise known as BADA. Our association is itself an antique this year—we are celebrating our 100th anniversary—and we represent about 320 of the UK’s leading fine art and antique dealers.
Anthony Browne: I am Anthony Browne. I am chairman of the British Art Market Federation, which is an organisation that was brought into being about 20 years ago to represent all the elements of the UK art market, whether it be principal auction houses, smaller auction houses or dealer organisations such as the British Antique Dealers Association.
Thank you very much indeed, and congratulations to Mr Dodgson’s organisation. May I ask any Members who have a declaration of interest to make to do so now publicly, please?
I received a donation from the Musicians Union at the last general election and the previous one. I want to put that on the record—it has been declared in the Register of Members’ Financial Interests.
I also received a donation from the Musicians Union at the last election.
Okay, thank you; that is on the record. Let us move on to questions.
Q I have a question for Emma Rutherford. This morning we heard that the size of miniatures should be specified, because a miniature in one person’s eyes might not be a miniature in another’s. Do you have any strong feelings about that—about whether we should specify and, if we did, about what the specification should be? I have a further question for someone else, but I ask that one first.
Emma Rutherford: The suggestion of 6 inches by 8 inches for portrait miniatures—I have some with me, because it is always easier to show an object—is very sensible. I have three very typical portrait miniatures here, painted watercolour on ivory, which represent 80% of 18th-century portrait miniatures painted on ivory—this is the kind of size we are talking about. Six inches by 8 inches will cover 90% or 95% of portrait miniatures.
Q Does talk of 6 inches by 8 inches include the framing, or is that simply the actual miniature without the frame?
Emma Rutherford: It is sometimes difficult to measure the actual miniatures because most of them are framed or cased, and we cannot get them out easily without damaging them. I would probably do it by sight of the ivory itself and not the frame, because the latter is probably unfair, given the differences in the scale of frames.
Q Yes. For the two musicians, Paul and David—I don’t know this—are musical instruments still produced with ivory in? Obviously, there is old ivory in musical instruments. Some very valuable musical instruments have ivory in, and I am sure that there must be bows used for violins or cellos that contain ivory, but they will be old ones—
Paul McManus: Correct.
There would be no new instruments with any ivory content, would there? When did that stop?
Paul McManus: We ceased in two real tranches: 1975 and 1989, when the two different types of element were made mandatory. That means that hundreds and hundreds of what we would class as vintage musical instruments are out there, belonging to musicians, and indeed representing their livelihood in many cases. But we ceased in modern manufacturing as the legislation came in. As an industry, we like to think that we have been very compliant with the right rules. We abhor the trade itself and have nothing but support for everything being done here, but equally passionately we support the exemption for these antique musical instruments that keep musicians in their livelihood.
David Webster: Absolutely. I cannot add to that. As we understand it, since ’89 there has been no use of ivory in the manufacture of accessories for instruments or of parts of musical instruments.
Q That is very useful to know. In terms of the antique ones, clearly the musicians will value them because they are used to them and have a special feel for them. We have been looking at the exemptions, and is not the most important thing that musicians should be able to continue to use them, if not necessarily to sell them? Surely, it should be very specific exemptions for particularly fine instruments that are verifiably that old—they should be very specific and of particular value, rather than just anything over 100 years old.
David Webster: A musical instrument is a very personal item. For our members—musicians—it is probably the biggest investment they are ever going to make. In some cases, that investment needs to be of some value to them, for example if they need to retire due to ill health or they get to the end of their playing days and they wish to retire with some kind of dignity, which it is everybody’s right to do. The investment in that instrument is the most important thing they have. The ability to trade that instrument is the key to their being able to retire with some dignity and comfort, which is the right thing to do.
Q What sort of figure are we talking about?
David Webster: In terms of—
In terms of what they would pay.
David Webster: There is no one figure, but it is hundreds of thousands in some cases, tens of thousands in other cases and thousands in others. It all depends on the instrument, when it was made, who made it, its tonal qualities and who has played it before the current owner. You cannot pin it down to one particular price.
Q Can you give me an example of something that would be hundreds of thousands?
David Webster: A Stradivarius. Some old and ancient cellos.
Q Would they have ivory in them?
David Webster: They might do. It might be in the bow. The very small amount of ivory in a violin or a stringed instrument would generally be in the tip or the frog of the bow, and it is a very small amount. There may be a little on the tuning peg. It could be an antique guitar.
Paul McManus: It can be pianos, too. In the 1960s, we had 40 companies manufacturing pianos in the United Kingdom. There are hundreds of old ivory-keyed pianos in circulation around the United Kingdom. They were made when other materials were not readily available. That all stopped back in 1975, but to take a good example, the largest piano auction house in the world is in the United Kingdom. It is called Piano Auctions Ltd. It sold nearly 500 pianos at auction last year, some 60% of which had old ivory keys. Frankly, it would not be in business if it was not selling them. The only alternative to the exemption—I know this would happen—is for piano shops to strip off those ivory keys, throw them in a bin and replace them with plastic ones. To me that would almost seem a double tragedy for the poor animal that gave up the ivory in the first place. Right down in the hundreds of pounds range, there will be an old piano that someone’s grandmother used to own that they are trying to move on to a school or whatever.
Q They can gift it.
Paul McManus: They can gift it, but lots of people are still trying to make some money from these products. There are hundreds of them around the United Kingdom. These are all one-on-one transactions. There is no trade here. These are just individual transactions between a musician and another musician. That is the way our industry works.
Before I call Liz Twist, I want to say that members of the panel should contribute, even if you are not addressed by name, if you wish to. We can make this more interactive. If your contribution is relevant to the organisation you represent, feel free to make it.
Q I want to address my questions to the musicians on the panel. I should declare that there is a regional interest with Northumbrian pipers in the north-east. I am asking for your observations on how Northumbrian pipers might be affected. As I understand it, they use ivory for the construction of the pipes. How might the Bill affect pipes that have been made legitimately under existing regulations but might be caught out by the sale problem? I would welcome your observations.
David Webster: That is a concern, obviously, if the ivory was legitimately sourced and worked. So far as I understand it, for bagpipes it is the rings that go into the bit that comes out of the bag—I am not sure what you call it, but that is the part that has ivory. They could be affected, but if the ivory is old ivory—ancient ivory—and it has been worked legitimately since 1975, they might be caught up within the Bill. We are very happy with the Bill as it stands, and we would not like it to be changed unless there was a move to extend it to cover the instruments that you are talking about.
Q This question is directed to the antiques sector and the music sector represented here. How many of the items that are sold go directly to the far east?
Mark Dodgson: We have looked at some of the figures from CITES; they have a database of exports of ivory. For example, in 2015 there were 1,200 CITES licences issued for items containing antique ivory going to China and Hong Kong.
Now, you need to bear in mind that the United Kingdom has—well, it was the second, and it is now possibly the third largest art and antiques market in the world. So, in the context of such a large entrepôt market and also in the context of so many cultural objects being repatriated to the Chinese—their ceramics obviously being the key one there—that number is actually not particularly surprising. I do not know specific figures for other countries.
Anthony Browne: What has happened generally in the art market in recent years is the rise of China as a major buyer for all sorts of works of art, so it is not particularly surprising that Chinese buying has had more of an impact in recent years than it had in the past. To some extent, it reflects that. It also reflects the fact that our history has meant that an awful lot of these objects that originated from China and Japan, and that came here, are finding their way back again.
Paul McManus: For our sector, it is practically negligible. I mean, we have nothing organised in collecting this to then sell it on anywhere. This is just individual musicians, as we said earlier, or the odd music shop here or there, but it is all sold within the UK—nearly all of it—because it is just a consumer-driven thing over here.
Emma Rutherford: For portrait miniatures, there is no market at all in the far east; there are no collectors there.
Mark Dodgson: Actually, that is quite an interesting point, because we find that there are a lot of western cultural items that contain ivory, or that are made entirely of ivory, that are of no interest to the Asian market. They are predominantly interested in their own cultural items.
Q The Bill refers exclusively and specifically to elephant ivory. What would be the impact, if any, on any of your organisations or your processes if that definition were broadened to be elephant, killer whale, narwhal, sperm whale or walrus ivory? I will start with the antiques industry first, if I may.
Mark Dodgson: I think it is slightly difficult to give a quick answer to that one; we would probably want to speak internally about it. However, I have worked at the British Antique Dealers’ Association for more than 20 years, and my own experience is that I have not seen those materials—those items from those animals—incorporated in many objects. There is the concept of scrimshaw, but generally speaking—when I was watching the online broadcast of the earlier sessions, I heard someone suggest that ivory inlay from, I think, hippos was used in antiques. I have to say that in my experience, I have not come across that. I have asked a few people about that, and they are not aware of it.
Anthony Browne: I have nothing to add to that. No, I think I would concur with that. Ivory is the ubiquitous substance in the arts of the past, definitely, rather than these other substances.
Emma Rutherford: In portrait miniatures, it is elephant ivory and no other type.
Paul McManus: From our point of view, since synthetic materials came in, pianos have been coated with synthetic materials. The most another type of bone might be used for is repairing an old ivory key that had broken, but if that became banned—well, we would use something else.
Q May I address this, please, to Mark Dodgson and Anthony Browne? I think that some people have raised concerns about the fact that the accredited civilian officers in clause 17 are, at present, entitled to some quite swingeing powers to enter premises, search, check and all that sort of thing. Do you have any concerns about the scope and nature of those powers?
Anthony Browne: Yes, there are concerns, and I am glad you have mentioned this. The legal advice that was given to one of our members—I am very happy to make it available to the Committee—is that giving these powers to civilians is most unusual indeed, if not unprecedented, except where public safety considerations are in prospect.
The representative from the police who gave evidence earlier referred to their usefulness in making people aware of the legislation. We do not have an issue with that. The police and customs officers’ powers of entry, search and seizure are entirely in line with the Police and Criminal Evidence Act 1984, so again, we have no issue at all with that. We do have very serious reservations about the powers of seizure and so on, both in clause 17 and in schedule 1. I am not a lawyer, so I am somewhat out of my depth if I get into a detailed conversation about this. However, we have a memorandum that I am very happy to submit for consideration, if the Chair would find it helpful.
Q The point is that it is not entirely clear in the legislation who these accredited civilian officers would be, where they would be drawn from and what their qualifications would be.
Anthony Browne: That is one consideration, and we are not clear about that. Also, they have got these really quite draconian powers, which are not normally made available except in the case of dealing with public health, where there is a real public need to intervene.
For the record, anyone, including distinguished members of the panel, can continue to submit written evidence through the parliamentary website with a reference to this Bill.
Q If I may ask the musicians, my understanding is that you are both happy with the provision as drafted in the Bill. I know there were lots of discussions with the Department beforehand, so you are happy with it. Paul, you said there were two tranches of ivory bans—1975 and 1989—and you are happy the instruments between 1975 and 1989 are not included.
Paul McManus: Let me be very honest: we are extraordinarily grateful that this exemption has been considered at all. The vast majority of instrument manufacture involving ivory ceased around 1975. There was some continued use of ivory, with the other ivory that was not brought into enforcement until 1989. While it would be tempting to say “Can we have a bit more, please?”, if I am totally honest, we were so delighted with the proposal as it stood that, considering it would catch the vast majority of instruments, we did not want to appear over-zealous in our presentation to you.
Q That is good of you. Can I ask about the registration requirements, which I had not quite cottoned on to? Owners of instruments would have to register them, under clause 10. If they sell the instrument on, the registration does not follow the item; the new owner has to register it. I can see that if you own a Stradivarius that is worth a fortune, you are aware of things like that. You are a professional, and that is all part and parcel of it. You have managers and agents, and all sorts of things. If you are just somebody buying and selling a guitar that you might not even realise has a bit of ivory in it, how is that going to work for the guy—sorry, or woman—who has had the guitar sitting in the corner of their room for a long time?
Paul McManus: It is a challenge. As an industry, we have been dealing with the rosewood legislation that CITES brought in last year. Nearly every guitar is made with rosewood, so we have had to try to educate an entire industry that makes guitars—both here and overseas—and every musician buying or selling a guitar, about the fact that rosewood is now a protected product. It is tough; I will be honest with you.
I suspect that ivory will rise to the top in awareness quicker than rosewood did. We have had to use every communication channel we can. We have gone to special Department for Environment, Food and Rural Affairs meetings in Bristol to educate the whole industry and take our members to it. Back to the online platform debate—to be fair, some of the online platforms have now been putting up information saying, “If your guitar is rosewood, you need to be aware of x, y and z,” as they have done with ivory. It is a challenge, but we just have to do everything we can to communicate this. There are so many platforms that people can buy and sell through.
Q Especially if the provision applies only if less than 20% of the product is ivory. It is not like having an ornament that is made of ivory, where you have it in your mind that it is an ivory product. If a little bit of an instrument—
Paul McManus: Every instrument will come to less than 20%. A piano is 3%, because of the total volume of the product the ivory keys are 3%. There are a few instruments, such as accordions, that will get into the double digits, but nearly 99.99% will come under 20%. It will not be a problem in the percentage; it will be the article 10 provisions that you have to—
You would think a light would go on in the head with a piano, because everyone knows that the keys are made of ivory. As David mentioned, if you have a smaller instrument in which a tiny bit of the bow is made of ivory, the issue is how that is even flagged up.
David Webster: It is difficult. You might find that on a banjo, for example, the fret board has a bit of ivory on it, or the tuning peg. As far as registration is concerned, the Bill refers to a fee for registering the instrument, to be set by the Secretary of State. We would ask that the fee be waived for professional musicians, who generally do not earn a large amount of money. They might spend many years doing various jobs, but they do not earn a huge pot. Their major investment is their instrument, and we would not want to see them pay a large fee to register it in order to be able to trade it.
Q Do we know how much the fee would be? Has that been discussed?
David Webster: It is not in the Bill. It is “as prescribed” by the Secretary of State.
No ballpark fee?
Paul McManus: A CITES article 10 is normally about £30, but the registration might be separate from that.
David Webster: These are working musicians and the instruments are the tools of their trade. It is an important distinction. This exemption is welcome because it really does recognise that these are working instruments, tools of the trade, and a cultural heritage as well as what the musician needs in order to do their job on the world-class platforms we have in the UK.
Q One of the witnesses this morning was pushing for a ban on all online sales of ivory instruments, on the grounds that people need to see them to know what they are getting. Would that cause a problem?
David Webster: I think it would cause a problem for musicians, yes. If there was a total ban on selling instruments online, you would have to travel in order to have face-to-face consultations. Musicians generally know what they are selling when they sell their instruments. An online sale facilitates musician-to-musician instrument selling, and an online ban would not help at all as far as our members are concerned.
Q Presumably there are not that many of these instruments around, so the chances are that they are going to be a long way from where the musician who is buying is located.
Paul McManus: Yes, and the problem is that the minute you say something cannot be done online, people get around it. You can buy a gun bag on eBay with a free gift inside it, because you cannot sell guns on eBay. People will get around it. David is right; a lot of musicians need to talk to other musicians around the world about their products. If it has been promised to a guy in America for 10 years, it will be done online.
David Webster: If it is a serious sale, they will be able to see it online and pay for it online, but they might want to actually try it out. When you buy an instrument, it is not just the instrument; it is also the ergonomic feel within the body and the tonal quality. Collectors might want to buy online and that would affect them, but the professional musician will always play the instrument before purchasing it.
Q I feel that I should declare an interest as a pianist and the owner of a piano that may or may not have ivory keys—I have been doing some research, and they are not solid ivory keys but wooden keys with potentially ivory coating. This brings me to my question. You said that you believe that a 20% de minimis threshold would cover most commonly played and traded instruments, but what proportion would not be covered by this 20% of musical instruments?
Paul McManus: There are a few, and they come under antiques. We saw a lute that had nearly solid ivory plating over the whole thing, but that was pre-1947. It dated back to the 1800s.
What about post-1947 musical instruments with more than 20% ivory?
Paul McManus: There are virtually none. The most we could find was an accordion that was laden with ivory, but it still did not make 20%. We have some parity here across the ocean with the Americans, which is always a good thing. As far as we can see, the 20% de minimis would catch everything.
David Webster: When we went to our members and asked what they had, generally speaking they were things like bagpipes with ivory mouths, bassoons with an ivory ring at the top, cello bows and other stringed instrument bows, flutes with ivory caps, ivory screws and so on—very small amounts when you consider the entire instrument. Nothing really jumped out at us.
Q Is there any danger that the ivory from musical instruments could be collected and used in some way to make another object?
David Webster: But then you would destroy the instrument.
Paul McManus: You would also destroy the ivory by taking it off, frankly.
David Webster: You would pretty much have to destroy the instrument to carbon date the ivory, which is why we welcome the self-declaration part of the registration. We think that is a very sensible move, and we welcome that. Sometimes you have to destroy the instrument in order to carbon date, and that would be a great shame.
Q I understand that the instrument would be sacrificed, but could you imagine a market where people took the very small proportion of ivory from instruments to craft an object?
Paul McManus: You would nearly always break the ivory when taking it off the product.
Mark Dodgson: Most inlay that features on anything, such as the thin slither on a piano key, is very unlikely to be capable of being reused or exported. We have had this discussion previously. Objects with small, thin slithers are of no use to anyone who wants to use them further.
Q Do you have any concerns—we heard some this morning—about proposals to issue replacement certificates? Could that allow duplicates to be circulated in the system? How could we strengthen the system in that regard?
Anthony Browne: The proposals on certification are very sensible. They deal with all the eventualities quite well. I have to say that this whole certification system grew out of discussions that we have had for a very long time with DEFRA officials and with NGOs, and it is very robust as it is. It will apply to a small number of very recognisable and unique objects, which is really why it will be effective. It is analogous to all sorts of licensing systems in that respect. The proposals for replacement, re-registration in the event of a transfer and so on, seem to me to be eminently sensible.
Mark Dodgson: The only thing I would add to that—I agree with everything that has been said—is that there should be some facility for someone to check whether a certificate is genuine, perhaps online. Likewise, in the case of registration, I wonder about online purchasers. It is not clear to me from the Bill whether a buyer will have the opportunity to check through DEFRA whether a particular registration has been made.
In terms of the documentation?
Mark Dodgson: Yes, I am talking about the items that are registered under clause 10.
We heard concerns about duplicate certificates. Is that not something that—
Anthony Browne: I would not have thought that would necessarily be a problem. You get a duplicate certificate if you lose one, I think—there is a provision for getting a replacement one.
Q I understand that, but if you can get an extra one for losing one, is there potential for extra ones to arrive in the system somewhere?
Anthony Browne: One would have to ask the people who administered that, but I do not think the provisions in the Bill are weak. They should be workable, just like issuing any paperwork.
Mark Dodgson: The certificates are in respect of the most distinguished objects. They are all unique, and they are not likely to be easily muddled up with something else. If the concern is that they could be mixed up with other objects and used for other objects, I think that is unlikely.
Anthony Browne: If I may, I will add something to this. Certification is straightforward, because you are dealing with objects that are unique, rare and important, so there are not likely to be lots of them. I do have some concerns with the registration requirement for the de minimis objects. There is a sort of Catch-22 built into the de minimis. The Government have opted for 10% by volume. We argued for a higher percentage, in common with other countries, but the Government took that decision—so be it.
What the registration of objects will mean is this. There are quite a number of common or garden, utilitarian objects—many of your constituents probably own them if there has been a death and the house has been cleared—with minute amounts of ivory in them. They are by no means unique objects: they are Victorian or Georgian chests of drawers with tiny ivory lock holes and that sort of thing. There is no indication as yet what the cost of registration will be—one of you asked about that—but it could make selling such things completely uneconomical. The managing director of Lyon & Turnbull in Edinburgh sent me an email making that point. They are frequently asked to clear out estates when people are downsizing or moving house.
In the future, families who want to sell such things will be faced with two options. If there is something that looks like a small bit of ivory, it falls within this Bill, although it is well under the de minimis. If the cost of registration is more than negligible, the family is very unlikely to want to do that as it will simply not be economical, particularly as they do not know whether the object will sell. It could lead to an awful lot of objects with small amounts of ivory, which are reusable and recyclable and can be used again instead of buying new furniture, ending up in landfill because people cannot register them because the cost is too great. Even if they do register them, they are by no means unique, so what will the register do to help? I do not see how the register helps with a chest of drawers that looks identical to thousands of its cousins. Our concept was always that if an object is below the de minimis, it should be saleable—straightforward. If you sell something above the de minimis because you get it wrong, you are liable to criminal or civil prosecution, which is as it should be.
The registration of de minimis will do two things. You will simply deter people from registering, and then these objects will be destroyed or mutilated, as people try to hack the bits of ivory off—what is the point of that?—or they will just end up in landfill. I do not think this is a sensible aim. I wonder whether the Committee could look at this again. I do not think it would weaken the Bill in any shape or form. It would still be very easy to police, as it is a very low de minimis, and it will be completely apparent whether an object contains more or less than 10%. The penalties exist, and so on and so forth. It will prevent a lot of things that can usefully be used again or bought by the next generation from being used in that way. I do not think doing this will undermine the objective of the Bill at all. I just suggest that as a point that has been made to me.
Q I was going to ask whether any of you have concerns about the de minimis requirement—whether we need further clarification of that, whether you had looked at how the volume of ivory is measured, and whether the Secretary of State should set the measurement. Do you measure it now, and is there is a best practice way of doing it? We do not want items to be calculated slightly wrongly and to fall into the criminal section just because there are different ways of measuring volume. I just want to hear your thoughts about that.
Anthony Browne: Yes, I quite agree. I think the 10% means that it is pretty straightforward, but because of the penalties people will always err on the side of caution. We were very pleased that the Government chose volume, rather than weight, which is notoriously impossible to judge—volume is a sensible way of approaching it. As I said at the beginning, we think 10% is rather low, but we live in the real world. I do not think 10% by volume will be impossible, but people will err on the side of caution, so I would have thought that you will probably not get people rubbing up against the maximum and risking criminal penalties.
Mark Dodgson: Members of the British Antique Dealers’ Association were quite surprised at the 10% and the way it was set. We could not quite see from the documentation in the consultation why 10% had been chosen, versus perhaps 30% or 40%. Just so that you are aware, because the 10% is proposed to be set in that way, items such as a silver teapot—this is a Georgian silver teapot with an original ivory handle—
Order. Although this sitting is being televised, it is not particularly regular for Hansard to have to describe artefacts. Given that this is perhaps a unique circumstance, could you briefly describe it for the record?
Mark Dodgson: Yes, I am showing an image of a silver teapot with an ivory handle. Sorry, Chairman. The point is to make it clear that this is the type of object that, set at 10%, would fall above the de minimis. It would be fairly straightforward to identify that as being more than 10%. My members are very concerned that the only other exemption that the teapot could attempt to meet would be the clause 2 exemption. The query among our membership is whether objects of that nature would actually meet the clause 2 requirements.
On the point about estimating the proportion of ivory, 10% for some items is all right. For inlaid objects it falls right in the middle of a series of smaller objects with ivory inlay, such as Indian Vizagapatam boxes and so on. It would be quite difficult for dealers to work out which side of the 10% they are on.
Q Thank you for your contributions today and for engaging so fully with the consultation. The EU is currently conducting its own consultation on banning ivory sales, and we expect to hear the results of that soon. Do you agree that it is right for the UK to have pressed ahead with its own approach first? What sense do you have from colleagues you work with in Europe about what they think the outcome of the EU consultation could be?
Anthony Browne: The sense I get, having talked to EU colleagues, is that they are arguing for a much less stringent ban than the Bill adopts. If that happens, there is no doubt that, as far as the decorative arts are concerned, markets in Europe will inevitably be more attractive. That is the inevitable consequence of legislating in this way. With regard to whether the UK’s lead will be followed by the European Union, you probably have a better idea than I do. I think there is no doubt, as the preamble and explanatory notes to the Bill say, that what is proposed is one of the most stringent restrictions anywhere in the world.
Mark Dodgson: From my experience, I too think that continental people in the trade would resist the level of restrictions suggested in the Bill. People need to be aware that on the continent, until recently, ivory tusks have been exported. Germany still has ivory workshops. We are already a long way ahead of those countries anyway.
David Webster: I was talking to some musician colleagues at a social dialogue in Brussels yesterday and shared with them the content of the Bill, and they seemed very impressed by it. Yes, we would hope that the UK’s lead would be followed. I spoke at the consultation conference last December on behalf of musical instruments, along with our colleagues from the International Federation of Musicians.
Paul McManus: Similarly, we have communicated with all the equivalent trade bodies around the world about where we are. Everyone in the musical instrument industry has been rather impressed by what the UK is proposing, as being pragmatic, sensible and proportional. We have nothing but praise for what has been done so far.
Emma Rutherford: For portrait miniatures, my colleagues in Europe just hope that they follow the UK’s lead and grant portrait miniatures an exemption.
As there are no further questions, I thank the witnesses for their evidence. We will now move on to the next panel.
Examination of Witnesses
Hartwig Fischer, Dr Antonia Boström and Anthony Misquitta gave evidence.
We will now hear evidence from the British Museum and the Victoria and Albert Museum. We have until 3.45 pm for this session. Could the witnesses please introduce themselves, for the record?
Dr Boström: I am Dr Antonia Boström, director of collections at the Victoria and Albert Museum.
Hartwig Fischer: I am Hartwig Fischer, director of the British Museum.
Anthony Misquitta: I am Anthony Misquitta, general counsel and secretary to the board at the Victoria and Albert Museum.
Do any Members have a declaration of interest, before we start?
That is on the record.
Q We have heard from a lot of people about the ivory trade today and the Bill, which is very narrow. For a number of years I have been advocating that, if we have the ban, which hopefully we will, some specific organisation should verify artefacts as being internationally significant. Do you feel that you are sufficiently qualified to do this job? Clearly, we will look to your organisations and perhaps some others to ensure that we are not just allowing trade in any old rubbish, but that artefacts are very significant. Do you feel sufficiently qualified to do that?
Hartwig Fischer: I am confident that museums in Great Britain and universities have enough experts to be able to deal with these questions and to come up with very sound judgments on the aesthetic or historical cultural significance of any object.
Dr Boström: I concur with that. We have world-renowned experts at the Victoria and Albert Museum in the history of ivory sculpture and objects.
Q How would you fund that? If people came to you with their particular pieces of ivory, or ivory as part of something, how would you fund that? There would be a cost to you. Would you think of charging whoever it is that wants it?
Dr Boström: We already have an opinions service, which is a public-facing service. Each curatorial department, on the first Tuesday of the month, has a public opinion session. We would certainly be able to offer the service through that. Whether a more robust service beyond that is needed, and what that might be, is one of the discussions that is on the table, I think.
Hartwig Fischer: In view of the importance of what the Bill addresses, I think provision should be made for those experts to give expert advice. There is an investment of time and expertise that should be covered, because it is during working hours.
Q There are specific exemptions in clause 9 about acquisitions by qualifying museums, which you obviously are, which mean that you would be exempt from the prohibition. Could you give an example of where you might need to rely on that exemption for products that are not already covered by the exemption certificate? Am I right in my understanding that the normal prohibition is that it has got to be pre-1918, and has to have a certificate that it is of outstandingly high artistic, cultural or historical significance, but there are some exemptions if a museum is involved? What sort of product would be likely not to qualify for the exemption certificate, but be something that you would want to buy or sell?
Anthony Misquitta: As museums, we are not in the business of selling. We are not really entitled to sell. Once an item enters the collection of a museum, that is normally it. The term we use is de-accession and we have very narrow powers to de-accede. Certainly, once it is in the collection, we are not in the market to then sell it back into private ownership. Normally—99.9% of the time, and probably more than that—when it enters a museum’s collection, that is it forever.
What about acquisition?
Anthony Misquitta: An example could be a musical instrument with more than 20% ivory content, of which we have some. We have some that are almost 100% ivory.
Dr Boström: Or a piece of furniture.
Anthony Misquitta: Or potentially a piece of post-1918 art deco furniture, for example, that is of significant cultural value.
Q There is obviously talk about prescribed institutions and qualifying museums and there has also been talk of a register of exempted items. The Secretary of State will keep a list of those registered or qualifying museums and prescribed institutions. If an institution is found to have been breaking the law, how do you see that being managed within your industry? Should the Secretary of State be able to take them off the register? Should further criminal action be taken? How would the industry look at policing itself within that category?
Hartwig Fischer: I would be very surprised if any of those institutions breached the law. We have extremely strict procedures in place for due diligence on provenance. Before any object enters our collection, it goes through many filters and is closely monitored. My understanding is that it would be exceedingly difficult for any of these institutions to do this. It is unlikely that something like this would happen inadvertently. It would be most exceptional for something like this to happen. I am very confident that these institutions are extremely conscientious when it comes to acquiring objects.
Anthony Misquitta: There is a very strict accreditation regime for museums in this country. Accreditation is by Arts Council England. Where a museum falls foul of those very strict rules, it loses its accreditation and that is catastrophic. It loses its Government indemnity scheme, it is unable to loan to or receive loans from other museums, and its charitable status is thrown into jeopardy. There are a number of checks and balances in the accreditation regime.
I will not say that museums never break the rules, because it is a very tough climate for museums—not the likes of the museums before you, but it is a difficult period for regional museums. Sometimes they are faced with the stark option of selling an item or closing, for example. They might sell an item and run the risk of losing their accreditation, but it is not something that they would do lightly and it is devastating if they do.
It may be necessary for the Arts Council to think about adding reference to this legislation to its accreditation tests.
Q So would that be the most sensible way to go forward be to bring the legislation into the Arts Council accreditation system?
Anthony Misquitta: I think so. I am talking off the top of my head, but that is a possible answer.
Q Would that cover galleries as well? Does the Arts Council accredit galleries? Yes, they are nodding at the back. Thank you very much.
Q Do you have any concerns about differences of opinion between the expert assessors in assessing whether something would be exempt or not?
Dr Boström: According to the criteria that are set out here?
Dr Boström: It had not occurred to me. I assumed that we all speak as one. I imagine that there would have to be a quorum.
Q Do you feel that the classifications are clear enough for there to be a unity of assessment?
Dr Boström: Absolutely. I think the basis from which we all begin is as one on criteria. There might be a difference of date—1540 or 1545, for example. Some scholars like to get into the details, but I think difference would be more on that basis than on the general principles that we would abide by.
Anthony Misquitta: The Waverley Committee decides on whether an item qualifies for an export licence. I am not aware of the extent to which they differ in their views when they consider whether to allow a licence, but I think their procedures are robust. I envisage that, whatever committee is chosen for the purposes of ivory, it would adopt a similar framework and governance to the Waverley Committee, which I understand is effective.
Dr Boström: It is very effective in its checks and balances and decision making by committee on the advice of an expert.
Q I want to draw your attention to the exemption under items of high artistic, cultural or historical value in clause 2. Do you think that definition is robust enough? As experts, are you confident that you have the criteria for that definition, given that you may be asked to give advice to the Secretary of State on passing an exemption?
Dr Boström: Yes, I am. I believe that, as Anthony has outlined, it would be rather like the way we act as expert advisers to the export licence committee through the Department for Digital, Culture, Media and Sport, based on the expertise we have among all the national museums. These export licences are shared across museums according to the expertise in place, so it would be absolutely directed to those experts in ivory—ivory carving or musical instruments—and the expert would pronounce on that. I have no doubt that the expertise would be in place.
Hartwig Fischer: Museums are responsible for collecting only what is really significant to deliver their mission, and we all have limited space. I think the criteria are robust and we can work with them because we have worked with them all along. It would be the ambition of any curator or museum person to get just what is really significant for the collection—that is to say for the public in the end, and for future generations to learn about the past.
Q I want to ask about prescribed institutions. Is clause 2(5), on the use of prescribed institutions, tight enough as a definition? If not, would you suggest anything to tighten it?
Dr Boström: I would say that that ties in exactly with the way that the export licence procedures have prescribed institutions, experts and advisers. I imagine it would be largely along the same lines, so that seems perfectly reasonable.
Anthony Misquitta: As Antonia has mentioned, there needs to be a degree of flexibility in the definition, because depending on the nature of the object—musical instruments would be different from furniture—a different set of experts will be required. I would therefore welcome a degree of flexibility, and some guidance—I hesitate to say further secondary legislation—from DEFRA as to how the prescribed institutions shall be constituted on a case-by-case basis would definitely be helpful.
To give a greater degree of clarity about what would be appropriate.
Anthony Misquitta: I do not think we need greater clarity in the legislation, but perhaps some guidance may be helpful.
Q To follow on from Trudy’s and Anna’s questions, we heard a lot from the previous panel about ivory content and the de minimis rules in terms of different items. How do you think that content level will be measured, and how will that take place?
Hartwig Fischer: It is a numerical question, basically, because we are talking about proportions and percentages, and I assume that can be measured. Conservation departments of all museums have specialists for all materials, and I am confident that they would have the means to establish the ratio when they look at an object.
Q Would the conservation experts be able to provide written evidence for that? We have not got the detail.
Dr Boström: Yes, it will be like any object analysis report. When any object comes in as a new acquisition or there is a proposal for treatment, very detailed reports are put together and detailed empirical and scientific analysis is done of the object. A lot can be established about materials with very sophisticated microscopes and other technical things. It is material science, and that is what we do very well, as does the British Museum.
Q Can you tell me what you feel the situation would be for sales to overseas museums in the future if the measure goes through? The International Council of Museums is not an accreditation body in the same way as the Arts Council scheme in the UK, so how do feel that that could be relied on to give the right information?
Anthony Misquitta: No museum will be selling to anyone, least of all an overseas institution. Speaking for the V&A, and I have seen the British Museum’s governing statute, I do not think we have the power—I know we do not, and I do not think that the British Museum does—to sell an item to an overseas institution, so I do not think that that would ever happen.
Q Does it not happen currently, or are they more loans that you give, rather than sales?
Anthony Misquitta: They are loans. I have concerns about loans, which I would like to raise at some point, but no, once an item is in a museum, that is it.
Q You would never sell anything to another museum.
Dr Boström: In the rare cases that an object is de-accessioned, which is very rare and has so many strictures around it, it would always be through a third party. It would never be a direct sale to another museum; it would always go through an auction house or a dealer; it could never be directly to another institution.
Q Why is that?
Dr Boström: To protect against inappropriate de-accession and sale. It is checks and balances.
Q So that the public can see that you are doing it, rather than it being a private sale.
Dr Boström: Yes.
Q Right, I can understand that. Mr Misquitta, you wanted the opportunity to say something about loans.
Anthony Misquitta: Yes. The V&A, like the British Museum, has thousands of items on loan throughout the world at any given time. We also loan in items as long and short-term loans. As the Bill is drafted, on my reading a loan is “dealing”. That means is that we can loan a work—in the United Kingdom, for example, I do not think it will be a problem because we would loan a work only to another accredited museum; we would never loan it to a private individual.
On the international stage, we often loan our works overseas. ICOM is a dominant force in the international museum world, but it is not everywhere. For example, we have a very close relationship with an institution called the Design Society in Shekou, Shenzhen, in China. We have a long-term relationship and have loaned a number of items to that institution, but it is not ICOM-registered, so we have to worry about our commitment—these items are out on a medium-term loan of a couple of years. I have an anxiety that when the Bill is enacted, suddenly we will be acting unlawfully, because overnight such loans will become unlawful. It is fixable with some transitional provisions, but that is one of the anxieties that I have.
The other anxiety concerns loans from private individuals. At any given time, we have a number of very valuable loans from individuals—amazing works, amazing individuals who lend us their works, often for decades at a time—but those are loans in from individuals who are not accredited museums. So we have a large job on our hands, which is to identify all those works, to attempt to get certificates for them and to deal with a great deal of logistics in relation to such activity—that is achievable but will involve quite a lot of work on the museums’ part. Again, some generous transitional provisions may help ease that pain.
Q Surely, if you are not selling it—if you are only loaning it to someone—there should not be a problem. It is the sale of things containing or wholly made of ivory that is the problem.
Anthony Misquitta: The terminology used in the Bill is “dealing”, and the definition of dealing includes the word “hiring”. I am sure the intention is not to capture these loans, but as it is currently drafted the Bill does capture them.
Q I am sure that is something the Minister will look at.
Hartwig Fischer: I would like to corroborate that. Lending is part of our key mission. We hold these collections for the public and share them as widely as possible. It is also part of our mission as national museums to project British values across the globe by engaging with other institutions by sharing knowledge and heritage. All our museums—ICOM museums included—are bound by an extremely strict code of ethics. Any museum dealing with another institution is bound to check the ethical validity of the other institution. To the best of my knowledge, all museums do that. Again, you have a number of codes and procedures in place to make sure that there is no breach. The fact that museums rank among those public institutions that enjoy the highest trust is evidence that this has worked and is reliable.
Q Subsection (5) of clause 9, which deals with acquisitions by qualifying museums, provides that
“‘ivory item’ means—
(a) an item made of ivory, or
(b) an item that has ivory in it,
but does not include an item consisting only of unworked ivory”.
Can you help me understand how many of your collections include unworked ivory in this respect? Do you think that exemption is appropriate, or does it actually cover a much larger section of items in museum collections?
Anthony Misquitta: I do not think we are concerned by that. As a museum of art and design, we are not interested in unworked ivory; we are interested in worked ivory.
Dr Boström: That does not really pertain to us, no.
Anthony Misquitta: We are not worried by that distinction, because we work only in highly crafted art and design.
Hartwig Fischer: However, among the national museums is the Natural History Museum, which is one of the grandest and most important of its kind in the world, and it might have—it probably does—unworked ivory as part of its documentation of natural history. So yes, it is likely that our museums have only ivory that has been worked—carved, incised or what have you—but it might very well be that the Natural History Museum, in living up to its purpose and mission, has unworked ivory in its collections.
Q Given that we hope that the trade in ivory will come to an end and that there will be less ivory available, might there be a greater desire among museums to have pieces of unworked ivory to demonstrate a historical connection, be it good or bad, with a region, an industry or a time period?
Hartwig Fischer: My hunch is that since 1975 there have been no purchases of unworked ivory, so I do not see any museum—any natural history museum or any museum of this kind—engaging in anything like this. These are historical holdings.
Dr Boström: Further to that, because they are historical holdings—as in the Pitt Rivers Museum or any of the famous university museums with natural and artistic objects—I imagine that there is enough in the existing public collections, across all museums, that, should it be necessary to display or interpret unworked ivory for an educational purpose, we do not have to go anywhere else for unworked ivory.
Q Thank you very much for your contributions today and to the consultation. Thank you in advance for the work you will do to make this come into effect with these very small exemptions. You have given Committee members a lot of assurance today, and you have explained your expertise and your confidence that you can use the criteria to determine the genuinely rare and most important objects. Can you help us understand better what that means, in terms of the likely volumes? On Second Reading, concerns were raised across the House about whether the regulations are tight enough. Can you help us understand what the likely volumes will be for these rare and very important items? By definition, I think we all assume that the quantities will be small, but it will be useful for you to say that, as experts, rather than for us to assume that.
Dr Boström: Are you talking about the volume of acquisitions, or the objects that might come to us?
Q You have done a lot of work to explain that museums do not get involved in a huge number of sales, and perhaps get involved in a very small number of purchases. What I was talking about—I should have been clearer—was the rare and most important items that you and institutions like you help to certify. Do you anticipate large volumes or small volumes? What volumes do you think will qualify under the definition of rare and most important?
Hartwig Fischer: I am personally not in a position to answer that question, I am afraid, because I do not have a sufficiently deep and detailed overview of what is happening in the trade. We see from the museum side that a very small quantity of objects qualify to enter the museum. When it comes to museums and what we see generally, even following what is happening in auctions, we are talking about small quantities. We are not talking about thousands of objects. The material that is historically relevant and significant is very limited.
Dr Boström: If one were to talk about taste in ivory carving and collecting, we always associate the working of it more with the 17th and 18th centuries, and the collectors with the end of the 19th century. It is not foremost in collecting practices or trends.
Hartwig Fischer: It remains to be seen what will actually come up for certification. One will have to react to the volume to see how best to deal and cope with it efficiently.
Q Earlier, you were talking about resources—there is obviously a certain amount of work that comes with this. You are clearly very large institutions, and you have a broad range of specialists and experts within your museums. What might the impact be on smaller museums that do not have such access to specialists? Will there be a cost implication for them?
Dr Boström: I imagine that, in parallel with the export licensing, even if objects were to come to a small museum or be associated with it, it will be devolved back to the major national museums—where many of the experts reside, because of a reduction of curatorial staff in our regional museums—to help them, in the way we do in other cases.
Hartwig Fischer: We have wide-ranging national partnership programmes in place. We work with 150 small and bigger institutions across the country. There is a well-established network of exchange, skill sharing and trust. We are confident that we will find a solution. We are engaged in helping museums that do not have the expertise to cope with these questions.
If there are no further questions from Members, I thank the witnesses for their evidence today.
Ordered, That further consideration be now adjourned.—(Mims Davies.)
Adjourned till Thursday 14 June at half-past Eleven o’clock.
Written evidence reported to the House
IVB01 Rosemary Lunn
IVB02 Catherine Harris
IVB03 David Shepherd Wildlife Foundation
IVB04 Mr John Henry James Lewis
IVB05 Joint submission from NGOs comprising: the Environmental Investigation Agency, Born Free Foundation, David Shepherd Wildlife Foundation, Stop Ivory, Tusk Trust and the Wildlife Conservation Society
IVB06 Animal Defenders International