Invasive Non-native Species (Amendment etc.) (EU Exit) Regulations 2019

Baroness Jones of Whitchurch Excerpts

Tuesday 22nd January 2019 Lords Chamber

[Viscount Ridley (Con)]

My Lords, I walked through Hyde Park this morning and saw three invasive alien species: Egyptian geese, ring-necked parakeets and, of course, grey squirrels. That reminded me that there is quite a gap between the way we talk about the issue in this place as mainly a bureaucratic issue of getting the right regulations, committees and quangos in place, and what is actually needed on the ground, which is to control and, where possible, eradicate these species. The grey squirrel is doing terrible harm to the position of the red squirrel in this country. Will my noble friend confirm that, in this case, we are not changing policy at all and this is a simple tidying-up exercise, and what needs to follow is more effort going into actually doing something about these creatures?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I refer to my interests as set out in the register. I am grateful to the Minister for setting out the intention of this SI so clearly and for meeting with us prior to today, and to all noble Lords who raised important questions about the consequences of this SI. I share the concern raised about the scale and outcome of the consultations that allegedly have taken place. I agree that it would have been useful to have known the outcome because it might well have informed our debate this afternoon. But I pay tribute to the Minister, who I know takes a lead on this subject in the department. I know that he is passionate about the importance of effective biosecurity measures in the UK and he has been assiduous in his role in that. I know that he will share that expertise in his response to the many questions raised today.

Undoubtedly, biosecurity issues are critical to protecting animal, plant and human health, which in turn protect our environment, economy and food supply chain. As we know, invasive species alone already cost the UK economy at least £1.7 billion a year. Past outbreaks of diseases imported from overseas have killed millions of animals and trees, with new fears on the horizon including ash dieback and African swine fever. Those examples illustrate just how important biosecurity is and the devastating impact that animal and plant diseases can have if they are not controlled. But it is also true that we cannot tackle biosecurity issues alone. We have benefited in the past from EU data-sharing and collaboration and we will continue to need that cross-border liaison if we are to keep our flora and fauna safe in the future.

We debated the widespread consequences for the environment of leaving the EU during the EU withdrawal Bill, and many of those issues remain unresolved. It is a concern that will apply to this SI as well as many others that we will debate in the weeks and months ahead. At this time, with no deal on the horizon, there is a real risk that we will crash out of the EU on 29 March without a transition period. In those circumstances, as several noble Lords have said, we face a real governance gap as there will be no independent authority to which reports on actions on invasive species can be given and any UK biosecurity failings held to account. The promised office of environmental protection, which is supposed to replicate the functions of the European Commission, will not be operational until at least 2020 and we have yet to determine its precise duties, so will the Minister explain how that governance gap will be filled in the interim? Is it intended to revisit this, and other SIs that will also lose out from a lack of governance, to add the oversight of the OEP once the environment (principles and governance) Bill is passed?

In this SI, the obligation to report to the European Commission by 1 June 2019 and every six years thereafter is replaced by an obligation for Ministers to make and publish a report on the same timescales. That is all well and good, but where will those reports go and who will assess their validity? Does the Minister recognise that it is not acceptable simply to publish a report without any independent scrutiny of it, or is it assumed that we will have to rely on our good friends ClientEarth to take the Government to court when there are perceived failings?

I will revisit the EU environmental principles and preambles which we also debated at length in during scrutiny of the EU withdrawal Bill. They set a very important context for the scrutiny of this SI, especially as the EU invasive alien species regulation constitutes a key manifestation of the principle of preventive action. The noble Baroness, Lady Parminter, praised it today. As the Minister will know, Greener UK has expressed concern that the preamble of the IAS regulation is not included in this SI. It quite rightly makes the point that the preamble has a significant purpose in framing the intention and ecological context of the regulation’s articles, thereby guiding its implementation. Indeed, during the passage of the EU withdrawal Bill, the Government clarified that the future use of preambles and recitals is key to ensuring that the withdrawal Act meets its aim of providing legal certainty and stability within our domestic statute book. The Government also said that policy and decision-makers are likely to want to have regard to supporting material, such as recitals and preambles, to assist them in addressing questions of how policy might be made and how decisions might be taken in future, so they ought to be in SIs such as this so that we can be assured that they apply.

Greener UK has also advised that unless the letter and spirit of domestic legislation reflect this core focus in future, we would fail adequately to reflect Article 8 of the Convention on Biological Diversity domestically. Can the Minister tell us why these essential principles and provisions have been omitted in the transposing process? Will he commit to addressing this omission to ensure effective transposition in future?

Turning to the UK structures set out in this SI, we are concerned that the EU structures and governance mechanisms currently in place are not simple or straightforward to replicate domestically; for example, where decisions required for the effective application of EU regulations and directives are currently made by Ministers from the 28 EU member states, with all that breadth of knowledge and input, this SI will assign that role to Ministers from just the three UK countries. On the one hand, we are losing expertise from across the EU and, on the other hand, there is an assumption that the devolved Administrations will co-operate seamlessly. Can the Minister reassure us that mechanisms will be in place on day one after exit day to ensure full co-ordination between the devolved nations?

We are also concerned about the interplay between devolved and reserved competencies, given that each part of the UK has responsibility for its own biosecurity but also contributes to the UK’s overall biosecurity. Does the Minister agree that it would be undesirable for an invasive non-native species to be legally imported and/or kept and traded in one part of the UK while those activities were restricted in another part? Does the Minister share my concern that a lack of internal border controls could undermine the goals of one or more of the UK’s Administrations if differences were allowed to develop?

At the same time, we are concerned about whether Defra’s proposal to replace current access to the EU IAS scientific forum with a UK forum risks creating a knowledge and data gap—another issue raised by my noble friend Lady Young. What assessment have the Government made of the expertise and data-processing capacity of the UK agencies and organisations that will take over these new duties? Also, which organisation will gain responsibility for implementing the invasive non-native species legislation after the UK leaves the EU, and what checks will be put in place to ensure that it has the relevant expertise and resources?

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, I thank noble Lords for their considerable contributions on a subject that is enormously important. Picking up on what my noble friend Lord Ridley said, I emphasise that there are no policy changes; this is about the operability of this important secondary legislation. I also thank the noble Baronesses for their kind remarks: yes, I am ferociously exercised about this matter because I have seen at first-hand the damage to water courses, trees, flora and fauna that the arrival of these species has caused.

I say to my noble friend Lord Selborne that, yes, there are opportunities—as the noble Lord, Lord Teverson, suggested—which often relate to the speed of implementing biosecurity measures. The Spruce beetle has been discovered in woodland in Kent, for instance; it is about how quickly we can act to eradicate an arrival. These are tremendously important issues.

I say to the noble Lord, Lord Adonis, and the noble Baroness, Lady Jones of Whitchurch, that this is about operability. There is no statutory requirement to consult because it is literally a question of changing a reference to “member state” to “responsible authority”, for example. This was certainly done properly in Defra, with stakeholders that we thought would be interested. With enormous respect to the noble Lord, consulting extensively and formally on a matter of operability—we are maintaining operability so that the policies are incorporated in what we retain—rather than on the nature of these obviously essential issues is not only unnecessary but disproportionate. If this was a discussion about the formal nature, consultation would, I agree, be necessary, but this is precisely about operability. There was actually no statutory requirement to consult, but we thought it right to engage with stakeholders, who in fact had no comment to make. However, I am on notice that in any future exercises with Defra, I must be ready for limited, informal commentary. I assure your Lordships that we want to have an open discussion with stakeholders on this issue.

I turn to the many other issues that have been raised. The noble Baroness, Lady Jones—

[Baroness Jones of Whitchurch]

I am sorry; I do not intervene often but this is important because it will have an impact on forthcoming SI debates. My understanding was that a process would be set up whereby, in advance of all the SIs, a group of interested NGOs and other stakeholders would be brought together so that they could not only make policy changes but iron out any concerns about omissions in the SIs, inappropriate transpositions or issues that been neglected.

The Minister has heard me say that Greener UK is still raising concerns about the legislation’s having missed out some of the requirements. The preambles were one issue, but there were also other concerns. He does not necessarily have to deal with all that now, but I am concerned that a process that was meant to iron things out does not seem to be working, given that we are being alerted at this late stage to the ongoing concerns of organisations such as Greener UK.

[Lord Gardiner of Kimble]

I am very mindful of that and I do not want to be dismissive to any noble Lords about the importance of dialogue, consultation and so forth. However, I wanted to raise another point that came up, raised particularly by the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter, about appropriate bodies, and to give a little more detail. There were many questions on which I may want to write in greater detail if there are points that I do not cover in full.

We are proposing that the programme board on non-native species takes over the role of the committee, while the GB non-native risk analysis panel will take on the role of the scientific forum. Both the programme board and NRAP are supported by the GB non-native species secretariat. The remit and membership of the existing GB bodies will need to be expanded to include Northern Ireland, as I mentioned. There is already a close working relationship between existing GB bodies and Northern Ireland. This statutory instrument places obligations on Ministers, who will ultimately have responsibility for taking decisions—for instance, to add a species to the list of species of special concern—and they are obliged to have a committee to support them and to have a scientific forum providing advice.

On the question of providing expertise, which the noble Baronesses rightly raised, I say that we in this country have significant expertise in invasive non-native species. In fact, I am very proud to say that it is acknowledged that we are considered one of the leaders in this respect. We have had a comprehensive framework for assessing the risk posed by these species since 2007 and that framework strongly influenced the EU’s approach, including its risk methodology, when the EU invasive alien species regulation came into force in 2015.

The analysis panel is chaired by Professor John Mumford of Imperial College, London. The panel’s members are highly respected in the UK’s scientific community, and include experts from Imperial College, Sheffield University, the Scottish Association for Marine Science, the Animal and Plant Health Agency and the Centre for Environment, Fisheries and Aquaculture Science. Through that body, we draw on expertise from scientists around the world as well as the UK.

On collaboration with the EU, I say to all noble Lords that this instrument is designed to make the matter operable but, going beyond that in terms of the requirements, of course we have obligations relating to invasive non-native species under many international agreements to which we are, as I know for myself, very active participants—for example, the Convention on Biological Diversity, the convention on wetlands of international importance, especially waterfowl habitats, the Ramsar Convention, the Convention on the Conservation of European Wildlife and Natural Habitats and the Berne convention. We are not going to remove ourselves into a silo.

As I said in my opening remarks, we have worked very closely with the devolved Administrations. I think the references within our own United Kingdom are absolutely right. That is clearly important, for all sorts of reasons that I have already described. Borders and boundaries are not respected when it comes to pest diseases and invasive diseases, so we will be working extremely hard and effectively on this. Scotland is not part of this exercise because it wants to bring forward its own SI under its own arrangements, but it is essential that we can all rely on these UK bodies to help us to come forward with the right mechanism. We are bringing back all the existing list. I do not see this as a diminution. As my noble friend Lord Selborne says, there may be opportunities which we need to think of, particularly in terms of not letting invasive species in. That is absolutely paramount. The noble Lord, Lord Teverson, referred to this in terms of border security, which is vital. We will be replacing TRACES because we want to bring forward our own arrangements, but biosecurity at the border is absolutely essential. I think the point that my honourable friend in the other place was referring to is that in our analysis of day-one readiness—the early days after our exit—goods that come in from the EU would be on the same risk basis. But I am absolutely clear that biosecurity is of vital importance for trade; the noble Baroness mentioned trade issues. This is why we are subject to international obligations as well.

Floods and Water (Amendment etc.) (EU Exit) Regulations 2019

Baroness Jones of Whitchurch Excerpts

Tuesday 22nd January 2019 Lords Chamber

[Lord Judd (Lab)]

I too put on record my congratulations to the noble, Lord, Lord Deben, not for the first time, on his forthright and important intervention. It is not very many years since I remember a glorious summer’s day bathing off Bournemouth and finding myself swimming next to a gigantic turd. I thought that this was too much, and I wrote to the clerk of the council in Bournemouth to register my protest. I could hardly believe it when I received in reply a letter from the clerk saying, “You must understand that this sewage must have come from Poole; it does not come from Bournemouth”. How we have progressed is extraordinary. It would be very unfortunate if we did not place on record our appreciation for all those in the European Union who have worked so hard to produce the legislation and rules which have enabled us to enjoy some of the best beaches in the world.

That did not happen by accident but by a great deal of co-operation and commitment within the European Union. As in other spheres, such as security and so many others, that is crucial to recognise. It is not to overuse the word to say that it is tragic that so few people recognise that in so much of this work, British officials and expertise have played such an important part in developing the policies. We have to reflect on why people with real commitment, insight and expertise found it possible to get us to the state we are in only in the context of Europe. We will, as the noble Lord, Lord Deben, said, have to work very hard not just to sustain what we have inherited but to maintain the dynamism and imagination which have come from Europe.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I refer to my interests as set out in the register and thank the Minister for his explanation and all noble Lords who have spoken this afternoon.

On water regulation in particular, as we have all heard, we have benefited over the years from robust EU regulation which has helped to drive up the quality of our drinking water, our bathing water and groundwater. It is vital that we hold on to those benefits for the future and do not allow standards to fall back through a lack of robust regulation and oversight. It is clear that a number of the themes raised in the previous debate, such as reporting and accountability, are also relevant to this SI.

At a basic level, the draft SI introduces reporting requirements on a par with those currently set out in the EU time cycle. However, as noble Lords have said, accountability ends once those reports are published and made publicly available; there is no mechanism for the requirements to be scrutinised and their failures addressed. The reports include ones on urban wastewater treatment, bathing water and nitrate pollution prevention. In these cases, it seems that Ministers become judge and jury, publishing reports and checking their compliance with the law.

In addition, in the past, derogations would be requested by the Secretary of State and approved by the EU Commission, but now, the Secretary of State seems to have the powers to request and approve them. Why does this SI not include a requirement for reports and derogations to be reviewed and assessed by one of the existing UK environmental bodies on an interim basis until the office for environmental protection is established? Indeed, given the Minister’s explanation in the debate on the previous SI, why can a separate body not be established on an interim basis and why can that not be set out in the SI?

A number of noble Lords talked about moving away from EU standards. It appears that the future application of the regulations will allow the UK to move away from parity with EU standards; I agree with the noble Baroness, Lady McIntosh, the noble Lord, Lord Deben, and others on that point. What thought has been given to the implications of this divergence? Surely we do not have to separate in every respect from what is good in the EU. Surely on a subject such as this, there is a case for retaining those standards post Brexit. What is there to prevent us doing so, given that—as the noble Lord, Lord Deben, reminded us—we owe so much to those directives, which have provided us with improvement, quality and reassurance?

Why must we leave? Why must we go through every SI, deleting “Europe” and inserting “the UK”, when it is in our interests to maintain EU standards? For example, if we do not apply the same vigour in maintaining standards of water quality, is there a danger of our exports of foodstuffs or crops to the EU being jeopardised because we could not provide the same proof of water purity, as happens elsewhere in the EU? Similarly, if we do not comply with the same authorisation for bathing water, and therefore do not utilise the EU blue flag scheme that everyone recognises, is there not a danger of us reverting to our reputation as the “dirty man of Europe”, with consequences for our tourism trade from EU visitors and for our UK bathers? Is there not a case for ongoing parity with EU rules and standards? Should we not be negotiating continued access to EU-approved mechanisms as a matter of urgency? They have stood us in good stead.

I could make a similar point about plumbing fittings. The Explanatory Memorandum makes it clear that we should no longer give “preferential treatment” to plumbing systems carrying the EU standard and that, in future, goods with British Standard fittings can be installed. What is the benefit of us having a different standard on plumbing fittings? Surely if we operate one system and the EU expects imports of plumbing equipment with the EU standard, that could jeopardise our exports. I cannot see what we will gain from that. It is one of the many ridiculous outcomes of our leaving the EU. Does it not make sense to be EU-compliant with the broadest possible bulk of our goods and services when we are not losing out in any other way? How does this SI ensure that we make the minimum necessary adjustments to our regulations while seeking ongoing parity with the EU as far as possible? I hope that the Minister can address that point.

I now turn to the loss of scientific expertise, which was raised in our previous debate and is equally concerning here. The water framework directive, for example, specifically requires that any changes to its standards should be made only in the light of the best technical and scientific expert advice. At the moment we have access to Europe-wide research and analysis to shape our decisions on such things, but in future that will not necessarily be available to us. While I do not doubt the expertise within our own scientific community, there are issues about the considerable extra workload, in terms of depth and quantity, that we will be placing on our own scientific advisers. So what steps are being taken to ensure that the scientific advice will be of the same technical and authoritative standard? Should this SI not spell out how the advisers will be selected and approved, to ensure that that is the case?

Brexit: Agriculture

Baroness Jones of Whitchurch Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Gardiner of Kimble]

Of course, that is precisely why there has been a border delivery group working across Whitehall since March 2017. It is working with the port and other transport operators to ensure, as a priority, that we have the materials we need, including medicines and so forth, but also a free flow of traffic. It was interesting that the manager of the Port of Calais referred to the fact that it is putting much more effort and many more people into ensuring this free flow of goods, which is of course at the back of why we want a deal.

[Baroness Jones of Whitchurch (Lab)]

My Lords, does the Minister understand why it is a priority for the farmers’ unions that there should be a guarantee that future food imports in the UK will have the same animal welfare and environmental standards as those which currently apply? If he agrees with that priority, will he undertake to put forward an amendment to the Agriculture Bill to make that commitment a legal requirement?

[Lord Gardiner of Kimble]

My Lords, having declared my farming interests, of course I believe that it is important that farmers produce food of the highest standard for home and abroad, and that this should never be compromised. We will not water down our standards on animal welfare in pursuit of trade agreements, and that is precisely why we have transposed the EU Council directives on, for instance, hormone-treated beef and chlorine-washed chicken into the statute book. When we leave the EU, that will be the law.

Brexit: Healthy and Nutritious Food

Baroness Jones of Whitchurch Excerpts

Thursday 20th December 2018 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, I acknowledge the noble Baroness’s long-standing interest in these matters. She referred to the healthy food scheme. It is a £142 million scheme, which includes Healthy Start, the nursery milk scheme and the school fruit and vegetable scheme. It is really important that young people and vulnerable people have healthy food at affordable prices. This is part of helping in that regard. I will take this matter up with colleagues in other departments responsible for the food schemes. I very much encourage eligible people to claim. Clearly, milk, fruit and vegetables are an important part of diet.

[Baroness Jones of Whitchurch (Lab)]

My Lords, yesterday, in evidence to the EFRA Committee, Michael Gove said that, in the event of no deal, it would be particularly difficult to guarantee perishable foods coming on to the market. That would be impeded and would be likely to drive up some prices. Is it not about time that the Government were completely honest with the British people and said that, in addition to all the other adverse impacts that it would have, a no-deal outcome could have serious implications for public health in terms of access to fresh food?

[Lord Gardiner of Kimble]

My Lords, that is of course why the Government think that a deal should be made and why we are urging that as the best way forward. However, it is clearly the responsibility of any Government to plan for all scenarios. Over the last two years, the border delivery group, chaired by the Permanent Secretary at HMRC and the Second Permanent Secretary at the Home Office, has been working extremely effectively, looking precisely at ways of ensuring a steady supply of produce. On the issue of nutritional and specialist foods, especially in terms of the health service, that has been given a particular priority so that vulnerable people are in a position to receive nutritional food.

Agricultural Subsidies

Baroness Jones of Whitchurch Excerpts

Monday 3rd December 2018 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, having declared my interests, I have considerable sympathy with my noble friend. That is precisely why we are working and will be working with farmers, land managers, environmental experts and other stakeholders so that we get this precisely right and it is not over-bureaucratic but environmentally outcome-focused, which is so important.

[Baroness Jones of Whitchurch (Lab)]

My Lords, agriculture is now the number one cause of water pollution and is responsible for the largest number of serious pollution incidents. Of course, most farmers act responsibly to prevent soil run-off, pesticides and slurry polluting watercourses. However, does the Minister accept that to deal with the worst offenders—those who do not act on a voluntary basis—there must be a credible threat of enforcement of the regulations, whether now or in the future? At the moment that is sadly lacking.

[Lord Gardiner of Kimble]

Certainly, the “polluter pays” principle is very current, and this is obviously why we are consulting on the environmental principles and governance issue. The draft legislation on that will be published before Christmas, along with consultation results. It is important that everyone, wherever they are, concentrates on reducing pollution. That is of course one of the great advantages of riparian buffer zones of a certain dimension, because you get an enhanced advantage from that.

Environment Plan

Baroness Jones of Whitchurch Excerpts

Thursday 29th November 2018 Lords Chamber

Asked by

[Baroness Jones of Whitchurch]

To ask Her Majesty’s Government whether their 25-year environment plan will be underpinned by legally binding targets.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, as announced in July, we will bring forward an ambitious environment Bill early in the second parliamentary Session, building on the vision of the 25-year environment plan. We are exploring possible wider legislative measures which could be included in that Bill. Furthermore, the Bill will establish a new independent statutory environment body to hold government to account on environmental standards. Draft legislation on environmental principles and governance will be published before Christmas.

[Baroness Jones of Whitchurch (Lab)]

I thank the Minister for that reply. However, can he explain the difference between the draft indicator framework—a horribly technical term—which currently seems to be being developed, and which seems to be about monitoring the current status of the environment, and, on the other hand, legally enforceable targets? Those are the only way to guarantee improvements in areas such as air and water quality, soil health, biodiversity gain and resource efficiency, which the plan indeed promises. Is there any truth in the press reports that, once again, the Treasury is blocking Michael Gove’s attempts to make those targets legally binding?

Infrastructure Planning (Water Resources) (England) Order 2018

Baroness Jones of Whitchurch Excerpts

Wednesday 21st November 2018 Grand Committee

I thank the Minister and his officers for their time and extremely useful briefing on this important statutory instrument.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I welcome the Minister’s explanation and echo the thanks of the noble Baroness to him for the courtesy of arranging a briefing on this SI in advance of today’s consideration. We, too, broadly welcome the proposals, which we believe will lead to greater water resilience in the UK. As we know, despite its reputation for rain, England is at increasing risk of water shortages. Extreme weather from climate change, coupled with an increasing population, especially in the drier southern and eastern areas, has put the water system under increasing pressure. We know that that will only rise over the coming decades.

I agree with my noble friend Lord Campbell-Savours that extreme weather is not just about drought; it is also about flooding. We have debated time and again in the Chamber the terrible consequences for local communities—not just in Keswick, but in other areas—which are faced with the same infrastructure breakdown which allows flooding to take place over and over again. The Government need to address that key challenge. I agree that this may not be the right vehicle to do that, but we should not lose sight of the important challenge of addressing the sort of communities which he spoke so passionately about.

Thames Water warned, just last month, that in a little over 25 years a projected population growth of more than 2 million people will leave a shortfall of 250 million litres per day between the amount of water available and that used. We have to address the issue of water shortage nationally. This has not been helped by an ageing infrastructure and a lack of investment from water companies in the past. This means that change is necessary to create a modern infrastructure which can adapt to new demands, which we can already predict will add pressure to the system.

The Minister will be aware that several stakeholders argued during the consultation that demand management techniques should be exhausted before any new infrastructure is developed and that water transfers should be a last resort. We agree that that while reservoirs and dams can play a key role in stabilising water availability, it is imperative that we reduce demand and waste. One area where progress is urgently needed relates to the industry’s inability to get on top of leaks. The noble Lord will know that in June Thames Water was ordered to pay £120 million back to customers, having been found to have breached its licence conditions by allowing millions of litres of water to spew out of pipes through leaks. So we need urgent action to reduce water leaks, with meaningful targets for action by water companies year on year. Will the Minister update us on the agreements that have been reached with water companies to make this a reality? Will he also explain what action is being taken to change consumer behaviour around domestic water consumption? Breaking through this barrier is a real challenge, not least because consumers have a simplistic view of the water cycle and the ease by which turning on a tap can deliver water without any concern to the source of that water supply.

Any government proposals must make sure that the ways we build infrastructure and supply water in the future are sustainable for the environment and for local communities. According to a report published by WWF, nearly one-quarter of all rivers in England are at risk because of the vast amounts of water being removed for use by farms, businesses and homes. Some 14% of rivers were classed as overabstracted, meaning that water removed is causing river levels to drop below those required to sustain wildlife, while a further 9% were described as overlicensed, meaning that the river would fall to a similarly low level if permits to take water were utilised fully. This means that if permits to abstract water from rivers were fully utilised, levels of water would be unable to sustain wildlife and the necessary biodiversity that goes with it. What safeguards are in place to ensure that the increase in nationally significant projects does not lead to more overlicensed and overabstracted rivers? Will the Minister ensure that the national policy statement on water resources prioritises sustainability, not profits?

One of the key challenges of these proposals is the issue of local engagement. The noble Baroness, Lady Bakewell, touched on this and my noble friend Lord Campbell-Savours dwelt on it in some detail. In the proposals for large infrastructure projects there are indeed legitimate local concerns that need to be heard and addressed. I know that the Minister raised this in his introduction and set out the Government’s aspirations, but it would be helpful if he would clarify how he intends to use the powers the Government are taking to guarantee proper community consultation in the future, so that he can give more assurance to noble Lords in this regard.

The Minister will also know that the Chartered Institution of Water and Environmental Management has expressed concerns that the criterion for defining a nationally significant infrastructure project,

“does not consider any regional or supra-regional water resources issues”.

Will he ensure that the Environmental Agency and Ofwat recognise the importance of regional, multisector resource planning in delivering these changes, so that it is not just about local consultation involvement but also proper consultation at regional level?

Finally, while we welcome the introduction of desalination plants as a new category of NSIP, we share the view of many stakeholders that effluent reuse systems should also have been included. While these facilities are used only in times of projected or actual drought, it is likely that we will come to rely more on this type of water supply in the future, owing to the existential challenge of climate change and population increase. Can the Minister explain what more is being done to expand investment in this sector and encourage water recycling? Does he accept that not including effluent reuse as a new category of NSIP may deter investment in such plants?

In conclusion, we welcome the proposed amendments and support the Government’s stated twin-track approach to improving resilience by stabilising supply and reducing consumption. This will be achieved only as part of an ambitious, long-term plan for the environment, including new policies to manage our water resources, a plan to meet our climate change targets and a strategy to reduce domestic consumption—as well, of course, as dealing with the extreme water consequences we have been debating this evening. I look forward to the Minister’s response.

[Lord Gardiner of Kimble]

My Lords, I point out at the outset that although I am not as aware as the noble Lord, Lord Campbell-Savours, is about the flooding in his part of the world, as a Defra Minister, and beforehand, I absolutely understand and have seen the devastation and horror of flooding—indeed, the fatalities there have been—across the country. I am thinking particularly of the flooding experienced in one sense on the west side of the country, while on the eastern side there has so often been coastal flooding where the most terrible events have also happened.

I want to take away all that the noble Lord has said, and would be very happy to hear from any of the people who may have contacted him. I am not the Minister who has direct responsibility for flooding but in this House I take responsibility for all Defra matters, and I want to hear much more about the situation of residents there. I have friends in Cumbria who have suffered from the flooding, and I know that communities have been in a very difficult situation for many years. Perhaps I may spend some time outside of this discussion understanding more about the particular points that the noble Lord raised about Thirlmere and the issue of safeguards.

I know it was probably incorrect of me to intervene as I did, but I wanted to ensure that what we are trying to do here, through the Planning Act 2008, was on the record early on. I would of course want to hear in more detail whether there are issues with safety in reservoirs and the 1975 legislation, or issues arising therefrom, that we need to consider. This provision comes from the Planning Act 2008, and I suggest that it enables us to deal with the small number of what we believe to be nationally significant infrastructure projects for water. This is the route that that Act envisaged. We are seeking to add some detail to it and, as I say, include desalination plants.

Ivory Bill

Baroness Jones of Whitchurch Excerpts

3rd reading (Hansard): House of Lords
Tuesday 13th November 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I express my gratitude to all noble Lords for their interest in the Bill and their contributions. Whatever else, we are all united in our desire to protect such a magnificent animal in the wild.

I bring it to your Lordships’ attention that I have placed in the Library of the House, with their permission, copies of letters received from my noble friends Lord De Mauley and Lord Carrington regarding Clause 7, “Pre-1947 items with low ivory content”, and my response to them. Specifically, these letters concern the definition of “integral” and the means of assessing the 10% de minimis threshold. In particular, the letters confirm that the ivory content of an item for the purpose of the de minimis exemption is to be determined as a percentage of the total volume of material in the item.

I am grateful for the positive engagement and support of the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Grantchester, on the Opposition Benches, and the noble Baroness, Lady Bakewell of Hardington Mandeville, and the noble Lord, Lord Clement-Jones. I also express my gratitude to the Constitution Committee, the noble and learned Lord, Lord Judge, and the Delegated Powers and Regulatory Reform Committee. The Government responded positively to the recommendations made by these committees and I agree with the comment made by the noble and learned Lord, Lord Wallace of Tankerness, on Report that this was,

“a very good model of how this House works”.—[Official Report, 24/10/18; col. 948.]

I am also grateful to the noble Earl, Lord Kinnoull, for raising insurance transactions and for the subsequent discussions that led to the resolution of this matter on Report. I also place on record my gratitude for the contributions that my noble friend Lord Hague made during the passage of the Bill, and for the experience he brought of what is really happening in the worldwide threat to the elephant.

I take this opportunity to thank each of the devolved Administrations for their productive engagement and the support they have shown for the Bill. Finally, I thank my noble friend Lady Vere and the hard-working Bill team, my private office and the clerks for their work and support.

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Bill represents a significant step towards ending the illegal elephant-poaching crisis. It will enshrine in UK law the commitment made at the 2016 CITES convention to close down the domestic ivory markets that fuel illegal poaching. We believe that the exemptions permitted, carefully crafted in consultation with stakeholders, strike the balance between being robust and pragmatic. I welcome the Minister’s clarification that we can help by taking the value out of the market.

The Minister raised the question of items containing voids and the de minimis issue. While we agree very much with the advice that he has now given, there may be occasional cases where assessing the ivory content of an item is not straightforward. We believe that such items ought to be rare and can be picked up in the guidance that will follow.

Roundup

Baroness Jones of Whitchurch Excerpts

Wednesday 31st October 2018 Lords Chamber

[Lord Gardiner of Kimble]

All this area is hugely important as a priority, both now and after we leave the European Union. Public safety will always be the prime consideration, and this would not be authorised if it was deemed to be unsafe.

[Baroness Jones of Whitchurch (Lab)]

The noble Lord, Lord Wigley, referred to the precautionary principle, which as we know has been fundamental to EU regulation. Can the Minister confirm that when we leave the EU, we will apply the same precaution to risks to human health? In the event of a no-deal outcome, will a statutory watchdog be in place on day one to uphold environmental standards so that we can be reassured?

[Lord Gardiner of Kimble]

My Lords, obviously, whatever happens, the HSE and the UK expert committee on pesticides will be advising the Government. We are working with the HSE and other agencies to develop a new regulatory body. However, in the meantime, we have expert committees on which we rely and in which we place our trust.

Ivory Bill

Baroness Jones of Whitchurch Excerpts

Report stage (Hansard): House of Lords
Wednesday 24th October 2018 Lords Chamber

[Lord Carrington of Fulham (Con)]

My Lords, I support my noble friend Lord Cormack’s amendment. I really just want to add to my noble friend Lord Hague that one of the great problems that the drafters of the Bill faced, and never really answered, is the claim that there is an inability in the ivory markets to tell the difference between modern ivory, newly carved from poached elephants, and antique ivory. It is in fact extremely easy to do and is done as a matter of course; indeed, it is enshrined in the Bill by museums having the expertise to determine whether an ivory item presented as of exceptional international and domestic importance—and therefore exempt under the Bill—is old or new. There is the expertise to determine whether ivory is old or new and to tell whether an ivory chess set—the example used by my noble friend Lord Cormack—is an old ivory chess set or one carved for the Hong Kong market. The reality of all this is that we are destroying a great many highly prized historical artefacts in this country for, probably, zero effect on the elephant population. That is the great tragedy of the Bill.

[Baroness Jones of Whitchurch (Lab)]

My Lords, noble Lords will not be surprised by this, but we are very much opposed to this amendment. The noble Lord, Lord Hague, put the case much more strongly than I will, but I was disappointed by the position of the noble Lord, Lord Cormack, on this. The very fact that his amendment focuses on exports goes to the heart of what the Bill is about. I am sorry that he has sought to start this debate in such a negative way. I hoped that we would have learned from our debates in Committee and that we had made the case in Committee, as the noble Lord, Lord Hague, said, that we are trying to stop the illegal exports of illegal pieces. That is the heart of the problem.

The latest CITES statistics show that there has been a dramatic increase in the amount of both raw and worked ivory being exported from the EU: in 2014-15, the last two years for which data are available, the EU exported 1,258 tusks. That is what has happened according to the CITES information. Over and above that, as the noble Lord, Lord Hague, said, there is the undercurrent of all the illegal trade of which nobody has any record. That is at the heart of this, and I am very sorry that we have started this debate looking at exports, which is the real problem that we have. I know we will go on to talk about other issues, but I regret this and I hope that the noble Lord, Lord Cormack, in other contributions that he might make, will do more to persuade us that he really understands the basis of the Bill. He said that he welcomed the Bill, but I think he has more of a responsibility to demonstrate how. I therefore urge noble Lords to oppose the amendment.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, my noble friend’s amendment would allow commercial exports of ivory to be exempt from the ban. Given the rationale of the Bill, this amendment would be contrary to its purpose. We have heard from all sides, and we are all united behind the need to tackle the devastating decline in elephant populations, which is being driven by the global demand for ivory. While key demand markets are primarily in the Far East, the UK has, by introducing the Ivory Bill, acknowledged that its own legal ivory market is one of the largest in the world. By closing this market we want to ensure that the UK no longer plays a role in driving the global demand for ivory, including in the Far East.

Currently, the UK ivory market is linked to the Far East. As I mentioned in Committee, a 2016 report by TRAFFIC, the wildlife trade monitoring network, shows that a shift has taken place over a number of years, with the UK legal market increasingly serving consumers in the Far East. UK Border Force officials have uncovered numerous antique ivory items being sent to Asian markets, often mislabelled as items other than ivory. Market surveys in the Far East have also shown that demand for ivory rarely distinguishes between legal and illegal ivory, with both found to be sold side by side. It cannot be denied that antique ivory from the UK is being exported to those markets, where it fuels the social acceptability of ivory and, in turn, perpetuates the demand.

I thank my noble friend Lord Hague for setting it out so clearly—indeed, the noble Baroness, Lady Jones, has said it much better than I possibly could—and I agree with every word he said. If we were to exclude exports from the UK’s ban, as proposed by this amendment, we would not only be allowing this link to continue but would also be condoning, internationally, the export of ivory items to demand markets. This would set back the actions already taken by other countries such as the United States and China by allowing new markets to grow in the Far East. It would also undermine the global movement to close markets and remove the value associated with ivory, which African elephant range states are calling upon us to do.

My noble friend Lord Hague referred to—as I will describe it—this global movement. The Illegal Wildlife Trade Conference was held earlier this month in London, where the UK Government launched the international Ivory Alliance, which will work to close domestic markets and reduce demand for ivory. It was a privilege to introduce a session at the conference—jointly chaired by my noble friend Lord Hague and Dr Zhou Zhihua of China, with a panel including the Assistant Deputy Secretary from the US Department of the Interior and the former New Zealand Prime Minister Helen Clark—which focused on the importance of closing domestic ivory markets.

The action the UK has taken by introducing this Bill is already helping to encourage other countries to take action. As my noble friend Lord Hague has said, both the Cambodian and Laotian Governments announced at the conference that they will be closing their domestic markets. This is an important step forward. Our work in the UK has also resulted in an Australian parliamentary committee recommending that Australia close its domestic market. The committee urged the Australian Government to follow the UK’s approach, which they described as an example of best practice.

Our actions are already having an impact and will continue to, if we make the right decisions. The current restrictions in place are not strong enough and there is an international movement, endorsed by a CITES resolution, to address the gap and in turn protect elephants. The UK must play its part, and it is for these reasons that the Government cannot support my noble friend’s amendment. As is customary at this stage, I therefore respectfully ask him to withdraw it.

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[Baroness Bakewell of Hardington Mandeville]

My Lords, I am grateful to the noble Lord, Lord Hague, for so eloquently setting out the case. The removal of “outstandingly” or “outstandingly high” would substantially increase the number and types of items that qualify for exemption. The purpose of the outstanding artistic value exemption is to allow the older items of exceptional artistic value to be traded.

The exemption before us would undermine that purpose and risk weakening the Bill by enabling trade in many pre-1947 worked items. The proposal of the noble Lord, Lord Cormack, to replace “important” with “significant” will similarly severely weaken the exemption criteria. It will already be possible for Art Deco items to be purchased by museums from private owners under Clause 9, which intentionally does not specify the age of ivory artefacts that can be acquired by museums. It is unwise and unnecessary to widen the exemption further.

As I said, those who support extending the exemptions do not see that this increase in items containing ivory will impact on the elephant population. Unfortunately, they are not correct. It is also wrong to assume that anything that is not exempt, or does not get a certificate, will be destined for the rubbish dump. Families will keep their personal artefacts and furniture containing ivory and pass them on to their children or grandchildren. Unfortunately, a lot of hysteria is being generated.

The monitoring of the elephant population, particularly in Africa, is much more sophisticated nowadays—due to the use of drones—than previously. The sad truth is that the population is down to 400,000. For the first time since records were kept, the number killed each year is higher than the number of live calves born. It is time to make a stand, and it is obvious that this House—across the political divide—supports the Bill. While the Ivory Bill is not perfect, it is a significant step forward in protecting the elephant. We must show the world that we are serious, in the hope that others will follow suit. We cannot support this group of amendments.

[Baroness Jones of Whitchurch]

My Lords, I shall respond to these amendments, which would move the applicable date for exemptions from pre-1918 to pre-1947 and would lower the threshold for exemptions, allowing larger numbers of items containing ivory to be bought and sold.

As has been said, these amendments will considerably weaken the impact of the Bill. As the Minister explained in Committee, 1918 was chosen because it defines items which are 100 years old and therefore classified as antiques. A move to include more recent items for exemptions, as suggested in Amendment 3, would inevitably increase the number of items containing ivory in circulation. It would include a much wider group of objects than the Art Deco items which the noble Lord seeks to protect. In any prohibitive Bill of this kind, it is impossible to find a perfect date from which to apply the constraints. As we have mentioned several times, we would have preferred a complete ban on ivory sales but, if there has to be a cut-off date for exemptions, we agree that 1918 has the best logic. Of course, as has been said, that would not affect the ownership or gifting of items, nor the continuing trade in Art Deco items which do not contain ivory.

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[Lord Cormack]

It is perfectly possible to forbid online sales, full stop. We would not object to that. Again, as has been implicit in all our arguments throughout every stage of the Bill, it is perfectly possible to insist that only registered auction houses and registered dealers, whose expertise has been established, can deal in ivory. All of that we have said time and again, so it is quite unfair for the noble Baroness to make such a sweeping statement.

[Baroness Jones of Whitchurch]

I find it ironic that the noble Lord talks about sweeping statements. The fact is that we talked about having a complete ban on online sales. Indeed, colleagues on the Lib Dem Benches proposed that in Committee; it is perhaps sad that they have not brought it back on Report. The noble Lord, Lord Cormack, will also know that the reason we are here today is that we already had a ban, which was meant to constrain what auction houses and so on were doing. It was then found that illegal pieces were passing through the auction houses.

I am not saying that the Bill is perfect; it is not, but it is a considerable step forward from the previous legislation. The Government would not be pursuing the Bill, with our support, if they did not feel that the evidence was compelling and overwhelming. The noble Lord, Lord Hague, is absolutely right: we have to close down the domestic ivory market, not for its own sake but because this is part of an international movement. Only when we all share the same broad objectives internationally will we actually be effective in all this.

I was quite offended by some of the comments from the Benches opposite in the previous debate, which somehow implied that there was a conspiracy among some African countries on this issue. I do not see it on that basis. I too attended the Illegal Wildlife Trade Conference and the Minister was absolutely right. There were Heads of Government there and people in various senior positions from all round the world, including the African nations. They were absolutely passionate about needing to protect the elephants and protect their economic interests in the longer term, and therefore to close down the illegal ivory trade. Until we all understand why that is necessary, we will not be able to make much progress on this. On that basis, I therefore urge noble Lords to reject all these amendments.

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[Lord Gardiner of Kimble]

I will make sure that I get a precise note. The whole purpose of us saying that people can apply online and offline is precisely to cover the diversity of private individuals, as I mentioned. I will just check for my noble friend whether a form can be sent or whether it has to be downloaded.

The answer, apparently, is that there will be a range of opportunities for people to receive forms—online or not. I am told that a hard copy application can be requested by telephone. I think that covers, in one way or another, most people in this country.

The committee also recommended that Clause 5 should include more details about the appeals regime, rather than leaving it to secondary legislation. Amendments 17 to 21 deliver the committee’s recommendation. First, the amendments set out in the Bill that the First-tier Tribunal will hear any appeals against a decision by the Secretary of State not to issue an exemption certificate or to revoke an existing certificate. As many of your Lordships will know, the First-tier Tribunal has wide experience of hearing appeals concerning regulatory matters and, indeed, is the body to hear appeals against decisions to serve civil sanctions in Schedule 1 to the Bill. The amendments also set out in the Bill the grounds on which an appeal may be made and the powers of the tribunal on hearing an appeal. The only matters that will be left to secondary legislation will be any further grounds that the Secretary of State may wish to add and the cost of an application for an appeal to the tribunal. I acknowledge once again the recommendations of the Delegated Powers and Regulatory Reform Committee, and I beg to move.

[Baroness Jones of Whitchurch]

My Lords, I support these amendments. We are very pleased that the Government have listened to the Delegated Powers Committee and have addressed its concerns about too much detail being contained in guidance. We will return to this issue when we debate our Amendment 40, which seeks to establish regulations about how those dealing in ivory can verify the exempted status of the piece being bought or sold.

We also welcome government Amendments 17, 18 and 21, which considerably tighten up the basis on which appeals on exempted certificates can be made. We raised this issue in Committee and are very pleased that the Government listened to those arguments and have produced specific grounds for appeal that cannot be used to undermine the clarity of the decision-making process. We therefore support these amendments.

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Moved by

[Baroness Jones of Whitchurch]

40: After Clause 11, insert the following new Clause—
“Guidance
The Secretary of State may by regulations produce and publish guidance to enable a person dealing in ivory to verify the exempted status of an item.”Member’s explanatory statement
This amendment would enable the Secretary of State to lay verification guidance before both Houses of Parliament.

[Baroness Jones of Whitchurch]

My Lords, Amendment 40 concerns verification regulations. As we debated in Committee, it is imperative that the exemption processes introduced in this Bill are robust and proportionate. In Committee, we introduced a probing amendment that would allow the Secretary of State to create a verification system to enable buyers to ensure that they were complying with the law. We felt that this was particularly important, given that the definition of “dealing” in Clause 1 specifically includes buying as well as selling ivory. Even the noble Lord, Lord De Mauley, with whom we on these Benches have found little common ground with regard to this Bill, concurred that it was a most sensible suggestion.

In response, the noble Baroness, Lady Vere, agreed that a potential buyer must be able to verify that it is legal to purchase the item before finalising the sale. She outlined how a buyer wishing to check the legality of buying or hiring an item would be able to confirm that it had been registered or certified as exempt and look it up on the online system via the item’s reference number. This would enable them to compare the photos and description on the system with the object they intended to purchase. This was a welcome commitment from the Government. I was disappointed, however, by the noble Baroness’s insistence that we do not need regulations to underpin such a system.

Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee report raised concerns about the scope of regulation-making powers contained in the Bill, concluding that the delegation of powers was inappropriate in many areas. We agreed with this view and feel strongly that it would be inappropriate for the purpose of establishing a verification system too. The verification process described by the noble Baroness, Lady Vere, must be subject to parliamentary scrutiny and should be set out in regulations. We feel that this is very important, given the legal implications for breaking the prohibition on dealing, as well as issues involving privacy and the protection of personal data. Indeed, it was for this reason that the noble Lord, Lord Gardiner, advised that the Government would be unable to publish photos or descriptions of specific items exempted. We need to be much clearer about the verification processes that would underpin the Bill and the protections that would be afforded to the buyers, particularly when they are making online purchases, when fake sales particulars are all too often a hazard.

Having reflected on the Minister’s earlier response, we also believe that the negative procedure offers an appropriate level of parliamentary scrutiny for the verification of exempt items. Therefore, we hope that noble Lords will support this amendment, which would insert regulations, but to be approved only through the negative procedure. I beg to move.

[Lord Gardiner of Kimble]

My Lords, this proposed new clause would provide the Secretary of State with a new delegated power to make regulations and publish guidance to enable a potential buyer of an ivory item to check its exemption status prior to purchase. I reassure the noble Baroness that the Government will ensure that compliance, by both sellers and purchasers of ivory items, is fully facilitated. The Secretary of State will issue non-statutory guidance, which will set out the detail of each exemption and the requirements for self-registration or certification of exempted items. The guidance will also contain clear advice, for both buyers and sellers, on compliance, including the process by which a potential buyer will be able to check a registration or certification before purchasing an item. I also make the point that verification is in the Bill. We will provide administrative guidance to assist both the buyer and the seller.

I note that the amendment tabled by the noble Baroness would create an additional delegated power for the Secretary of State, by allowing him to specify how many items should be verified. Furthermore, to lay regulations to specify this would be a duplication of the relevant provisions already in the Bill.

Before I set out for your Lordships precisely how the registration system will work, which is important, and thus the measures in place to enable verification, I also note that the Delegated Powers and Regulatory Reform Committee of this House has considered the Bill in detail and made a number of recommendations to reduce the number of delegated powers, which, as we heard on earlier amendments, the Government have addressed.

Ultimately, it will always be in the seller’s interest to ensure that the exemption certificate or registration document is available at the point of sale. It would be appropriate for an antique dealer or auction house to display the certificate or registration details alongside the item or show it to customers at the point of sale. For online sales, we would similarly anticipate that a seller would show proof that the item has been registered or an exemption certificate issued.

We are currently working on the design and build of a new online system to enable owners of exempt items to register them prior to sale or hire. A potential buyer wishing to check the registration of an item will be able to look up that item on the online system, using the unique registration number provided on the seller’s registration document. The buyer will be able to view the information concerning that item held on the database to satisfy themselves that it indeed relates to the item in question. This will allow buyers the comfort that the seller has complied with the process and to verify the registration document.

For items with an exemption certificate under Clause 2 of the Bill—that is, the rarest and most important items of their type—we would in practice expect the seller to make the exemption certificate available to the potential buyer. Similarly, the potential buyer will also be able to consult the online database using the unique identification number on that exemption certificate.

That is why we do not need a power in the Bill to provide the means for buyers to verify that they can legally buy a certified or registered ivory item: as I have explained, it is our intention that this will be achieved through the functionality of the online registration system. This provides a clear means for the buyer to verify the legitimacy of their intended purchase. Furthermore, the Government will publish non-statutory guidance, which will set out exactly how sellers should provide buyers with the assurance that they are entitled to sell an item and that the transaction will therefore be lawful.

Before the Bill is commenced, we will run an awareness-raising campaign to ensure that relevant stakeholders and members of the public are fully aware of the new legislation and associated guidance. As such, we believe it would be unnecessary to include additional powers in the Bill to enable a potential buyer of an ivory item to check on the exemption status of an ivory item. As I have explained, this is precisely why perfecting the online registration system is so important and why work is under way on that.

I believe that the Government have covered the points that the noble Baroness seeks to address, given the explanation and a bit more detail. As the online system is developed, I am happy to ensure, for any noble Lords interested in these matters, a continuum of assurance that this work is well in hand. On that basis, I say to the noble Baroness that these points are covered. I sincerely hope she feels able to withdraw her amendment, because the Government have covered this point.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the Minister for that response but I am disappointed by what he had to say. I had hoped that he would have reflected a little more on the debate we had in Committee on these issues. He acknowledged that the Delegated Powers Committee has already been critical of the amount of delegation included in the Bill. He went on to talk about producing administrative guidance or non-statutory guidance, which is a continuation of that non-specific process. He then said that the Government were working on the design of the registration scheme. I understand that it may not currently be fully functioning, but that is all the more reason we need to see the detail and need regulations that spell it out.

I am sorry that the Minister was not able to meet us further on this. There are big issues around implications for privacy and data protection. There is a legal underpinning: if you break this law, sanctions will be taken against you. It is not a frivolous issue; it is important. It is not simply about buying and selling but about complying with the law and not complying with the law. I am therefore sorry to say that, unless the Minister is able to tell us that he is prepared to come back to this at Third Reading, we would like to test the opinion of the House.

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Moved by

[Baroness Jones of Whitchurch]

42: Clause 12, page 8, line 7, leave out subsection (2) and insert—
“(2) It is a defence for a person charged with an offence under this section to prove that they did not know or suspect, and could not reasonably be expected to know or suspect, that the item is ivory, is made of ivory or (as the case may be) has ivory in it.”Member’s explanatory statement
This amendment permits a defence of ignorance, with the onus on a person to prove that they did not and could not have been expected to know or suspect that an item contained ivory, to help tackle the problem of deliberately mislabelling ivory items as other substances.

[Baroness Jones of Whitchurch]

My Lords, Amendment 42, which deals with the defence of ignorance in Clause 12, would remove the provision in the Bill stipulating that an offence has been committed only if the person knew or ought to have known or suspected that an item contained ivory. Under our amendment, it would be a defence if a person proved that they did not know or suspect, or could not have known or suspected, that an item contained ivory. That might sound as though there is not much difference, but there is an important difference in the burden of proof, and that is something that we seek to strengthen.

We considered this issue in Committee but failed to have a meeting of minds on the wording of this clause. At the time, the Minister, the noble Lord, Lord Gardiner, advised that the provision had been included to help tackle the issue of illegal ivory in items being deliberately mislabelled as another substance, and to protect those who fall victim to such ploys who genuinely did not know that an item they were dealing with contained ivory. Of course, we know that mislabelling is common. Numerous studies have found that new elephant ivory offered for sale is often mislabelled as ivory from other species or another material altogether, such as bovine bone. In some instances, this may well have been due to genuine unawareness, although deliberate mislabelling is a well-known tactic used in the illegal ivory trade to evade detection and facilitate illegal sales. In those circumstances, a seller might provide other information to indicate more discreetly to buyers that the item is indeed ivory, such as close-up photographs that depict cross-hatching, a tell-tale sign of ivory, or code words used in the trade to surreptitiously indicate that an item is made of or contains ivory.

We must have a form of wording that differentiates between those who are playing the system and know perfectly well what they are trading and others who have been genuinely duped. If we stick with the original wording, it would too easy to claim that you were unaware of what you were buying and would make enforcement a real challenge for the agencies, which would have to prove that you knew it was ivory.

Our amendment allows for a defence of ignorance but introduces a higher evidential threshold than in the clause as currently drafted. It also brings it in line with the provision in Clause 12(3), which allows for a defence if an individual can demonstrate that they took all reasonable precautions to comply with the law. I am therefore moving this amendment and I hope noble Lords will see the sense of our arguments. I beg to move.

[Baroness Vere of Norbiton]

My Lords, I thank the noble Baroness, Lady Jones of Whitchurch, for her amendment to Clause 12(2). The purpose of the current subsection (2) is to outline the criteria required to demonstrate that an offence has been committed. Subsection (3) provides a person accused of an offence with the defence that they took reasonable steps to avoid the commission of that offence. The purpose of subsections (2) and (3) together is to provide a balanced and proportionate framework with regard to prosecutions under the Bill, and to tackle the problem of illegal ivory items being deliberately mislabelled, while also providing a defence that allows a person to prove that they took the reasonable steps needed to ensure that the item was not elephant ivory.

Amendment 42 is explained by the noble Baroness, Lady Jones, in the Member’s explanatory statement published alongside the amendment as permitting the “defence of ignorance”. As noble Lords will know, there is no defence of ignorance in UK law. It is not permissible for someone accused of a crime, be it large or small, simply to claim that they did not know that it was illegal to do something. If we were to accept the amendment, we would also be suggesting that an individual would be able to prove a negative—to prove that they did not know something. That would be extremely problematic.

Furthermore, the amendment as drafted does not in fact reflect a “defence of ignorance” as referred to in the Member’s explanatory statement to the amendment. To explain a little, the amendment would remove the criteria in Clause 12(2), which outlines the requirements that must be satisfied for an offence to occur. Subsection (2) provides legal certainty on what constitutes an offence. It states that an offence is committed in relation to an item only, first, if a person knows or suspects or, secondly, if the person should have known or suspected that the item involved in the commission of an offence is elephant ivory or has elephant ivory in it. Subsection (3) essentially achieves the desired effect of the noble Baroness’s amendment. It states:

“It is a defence for a person … to prove that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence”.


In fact, subsection (3) goes further than the amendment, as it explicitly states what a person must prove to rely on that defence. Furthermore, in this case the individual will be seeking to prove a positive action. It is a far easier prospect to prove that due diligence has been undertaken than to prove a negative—that they simply did not know.

Let us have a quick look at how the Bill would operate if the noble Baroness’s amendment were accepted. Mrs Smith goes to a car-boot sale and sees a lovely box, which is very similar to her grandmother’s. She is not a very well-off lady, she owns absolutely no antiques and she pushes the boat out on that day and pays a tenner for this box as a treat. The box has a tiny, almost imperceptible, amount of ivory in it. Is Mrs Smith a criminal? It is not our intention that she should be. Removing subsection (2) makes the law far less clear because in that subsection is the outline of the requirements that must be met for an offence to occur. In the current draft of subsection (2), the elements of an offence are clear. To remove the subsection, as suggested in the amendment, would upset the firm legal foundation of the Bill. Removing the criteria for the offence in subsection (2) would cause significant uncertainty and risks overwhelming the enforcement system with Mrs Smiths, while the real criminals are left free to continue to break the law by dealing in ivory on much larger scale.

The Bill seeks to be balanced and proportionate. Removing subsection (2) would achieve neither aim. The police, enforcement bodies and the courts can use their professional discretion when considering the approach to use, based on a number of factors—for example, whether that person knew about ivory trading, whether it is a repeat offence or whether there is any evidence of deliberate mislabelling. Discretion is very welcome, but it must be based on a firm foundation of effective law. The amendment of the noble Baroness runs the risk of criminalising those who are not criminals at all.

Clause 12(2) and (3) are very carefully phrased. They protect individuals where there is absolutely no intent to breach the ban, and where the person could not be reasonably expected to know that the item was ivory or even contained ivory. It is not our intention to criminalise these people; that would be disproportionate and counterproductive. I have listened very carefully to the arguments put forward by the noble Baroness, Lady Jones. It is the Government’s intention in subsections (2) and (3) to be clear and proportionate, and I believe that is the case. Given this explanation, I hope that the noble Baroness will feel able to withdraw her amendment.

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[Baroness Jones of Whitchurch]

My Lords, the Minister and I agree that it was never our intention to criminalise Mrs Smith at the car-boot sale, and that is part of the argument that I had intended to set out. We were trying to criminalise those people who were playing the game and deliberately trying to mislead people. I am pleased that the Minister said that there was no defence of ignorance in UK law. Our worry was that that was exactly how her wording came across, because the original amendment says that an offence is being committed only if the person knew or ought to have known or suspected than the item contained ivory; that implied a defence of ignorance.

However, I hear what the Minister says: we have to look at subsections (2) and (3) together, and, perhaps because of the late hour, I will not choose to pursue it on this occasion. I therefore beg leave to withdraw the amendment.

Amendment 42 withdrawn.