Ivory Bill (Fifth sitting)

Lisa Cameron Excerpts

Committee Debate: 5th sitting: House of Commons
Tuesday 19th June 2018 Public Bill Committees

[Simon Hoare (North Dorset) (Con)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I hear what the hon. Member for Workington has to say and can understand entirely the motivation behind it. However, if she pushes her amendment to a Division, I will not vote for it. Let me explain why. I want the Committee to think about the little old lady or gentleman who works in a charity shop selling items on a daily basis. They might come into work to find boxes of stuff when someone has done a house clearance after an aunt or uncle has died. They might sell something to somebody and then it transpires that an offence has been committed because the item is made of ivory.

I do not think that in those circumstances they should be found guilty of something because they knew or suspected, or should have known. Antiques dealers with an online presence, buying and selling all sorts of products, are precisely the sort of people who ought to know or suspect. I do not think the intention of the Bill is to have lots of officials running around trying to trace every single person who is doing something without prior knowledge, and certainly not maliciously or trying to get around the law. There has to be an element of common sense and balance.

I entirely appreciate that, in some instances, that evidence gathering can present a challenge to the enforcement authorities, but it is always a challenge for enforcement authorities to gather compelling evidence to bring a prosecution or levy a fine that is beyond challenge. I understand entirely why the Government have drafted clause 12(2) in this way, because they have to strike a balance and have a bit of common sense. It is right that there is that common-sense caveat in the enforcement clauses, and I urge the hon. Member for Workington to withdraw her amendment.

[Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)]

I think that this measure has to be strengthened, and we heard clear evidence along those lines from the experts. Like my colleague, the hon. Member for Redcar, I want to know what “ought to know” will be taken to mean in such a situation. Will it be based upon a person’s experience or history of dealing with such artefacts? I have concerns about how a person can prove that they did not know something. Proving a negative is difficult judicially. This measure should be strengthened, but I have concerns and would like to hear more from the Minister in that regard.

[David Rutley]

I thank the hon. Member for Workington for her amendment, the effect of which would be to make the commercial dealing of prohibited ivory items a strict liability offence. The hon. Member for Redcar and other hon. Members also made comments along those lines, and I will answer some of their questions in due course.

We all agree that the enforcement of the Bill should be rigorous, but I assure the Committee that the amendment is not required. Clause 12(2) makes provision for a person found to have breached the prohibition to demonstrate that they genuinely and reasonably did not know that the item was ivory. That could be, for instance, because they were unaware of ivory as a substance, or because the ivory in question could reasonably have been assumed to be something else.

If clause 12 offences were to become strict liability offences because of the amendment, the person accused of the offence would not be able to rely on the defence that they had taken all reasonable precautions and exercised all due diligence. The strict liability offences that would be created as a result of the amendment mean that, for the offence to have been committed, there is the need only for the actus reus—the act itself—to have been committed. There is no need for the mens rea—the intention. That would mean that subsections (2) and (3) would effectively be deleted.

It is good that clause 12(2) is in the Bill, because it allows for instances of genuine mistakes, as my hon. Friend the Member for North Dorset said, where there is unlikely to be a malicious intent to breach the Bill. For instance, a member of the public might sell in a car boot sale an item they found in their grandmother’s attic without realising that the material in question was elephant ivory.

--- Later in debate ---

[David Rutley]

I thank the hon. Lady for that point, which was similar to that made by the hon. Member for East Kilbride, Strathaven and Lesmahagow. As currently drafted, the Bill gives a degree of discretion to the enforcement agency. It allows the officer to consider the position of the defendant and ascertain whether they should have knowledge of ivory—for example, an antiques dealer, which we will come to shortly—or whether they are a member of the public who has genuinely made a mistake. So there are points about proportionality and discretion.

An individual or organisation could, for example, show that they took reasonable precautions and exercised all due diligence through checking that the item had been registered prior to the purchase, or listed on an online platform, and that the registration or listing appeared to them to be authentic. Additionally, the enforcement bodies will consider the person’s position when taking a view about whether they should have known or suspected that an item was ivory. As I have explained before, there is a difference between a fully trained and experienced antiques dealer and a member of the public who could be young and inexperienced. The enforcement agencies need to have clearer discretion, as in many other forms of legislation. I will provide more details later. If we removed that provision, there would be no such defence. Further, doing so would place the sale of prohibited ivory in the same bracket as illegal transactions such as the sale of alcohol to a minor, where, as we know, a shopkeeper or a member of bar staff can be sanctioned for a sale on the ground of protecting public health. Strict liability must be used with considerable caution, and we do not think it would be proportionate to make these offences analogous.

[Dr Cameron]

Something has just come to my mind about how to strengthen the measure. It is about experience and having a connection to the industry. Might there be a loophole for unscrupulous people to try to engage the services of those who perhaps have no history of or direct connection to online sales? If someone is connected directly with individuals who ought to know, might we strengthen the legislation, because I would not like people to be able to use that as a loophole?

[David Rutley]

The hon. Lady makes a good point. Whatever people’s views are, nobody in Committee is seeking loopholes. We are trying to close them down. Her point would be covered by facilitation, which we have talked about previously.

It is very important in criminal law that we establish both the intent and the act itself, which need to be present for the offence to be committed. Strict liability is the exception as only the act itself needs to be present for the offence to be committed, for example, the sale of alcohol to minors and health and safety matters. With that explanation, I ask the hon. Lady to withdraw the amendment.

--- Later in debate ---

[Anna Turley]

I rise to support new clause 3. I congratulate my hon. Friend the Member for Workington on that powerful and thorough speech. There is not much I can add; she made every point inimitably. We all heard the evidence in Committee about how overstretched the Border Force at Heathrow and the National Wildlife Crime Unit are. I come back to the point I made in the previous debate: if this Bill is to be groundbreaking and held up internationally as an example of how seriously we take this awful issue and how determined we are to stamp out the sale of ivory in this country, we have to put our money where our mouth is. That means we have to give the teams that do the enforcement the resources they need to undertake and enforce this Bill.

We heard that the CITES Border Force team has just 10 members. They carry out over 1,000 seizures a year and as my hon. Friend so clearly demonstrated, the months of work each seizure takes is hugely resource-intensive. We have also heard about how the National Wildlife Crime Unit has only 12 people across the whole country to undertake all the activities my hon. Friend so articulately set out. That is a very small unit.

At a time when, nationally, we have lost 20,592 police officers in just seven years and we have seen a 20% rise in violent crime, how on earth is the NWCU supposed to fight and press for its resources, when there are so many competing priorities within the police budget? We really have to take this issue extremely seriously. I wholeheartedly support the new clause because we simply cannot have this Bill, laud it and celebrate its passage unless we are going to put the money behind the teams that will make it a reality.

[Dr Cameron]

It is imperative that the new clause is accepted. We heard from the NWCU experts that the unit is a small team with limited resources for current demand, and it is unable to plan over the long term. This issue must be dealt with promptly, lest staff are lost because the unit cannot motivate them to stay. Staff in any job who know there may not be long-term funding have families and their own lives to think about, so they will move on to other roles. The expertise at the NWCU cannot be lost, particularly in making sure this Bill is enforceable.

[Liz Twist]

I return to the furrow of cyber-crime, as I believe this is a significant issue when looking at enforcement. Last week, I asked Chief Inspector Hubble about any measures that could be added to help with enforcement. She replied:

“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.” [Official Report, Ivory Public Bill Committee, 12 June 2018; c. 36, Q63.]

Chief Inspector Hubble says that she needs additional resources to deal with cyber-crime. I support my hon. Friend the Member for Workington on new clause 3, because it would demonstrate that we are taking on the new challenges, including those facing the NWCU in terms of the rigid timespan and a lack of certainty. I urge the Minister to think again and to accept the new clause, which would show that, not only are we saying that we are doing something but that we are putting the resources into doing it.

--- Later in debate ---

[Luke Pollard]

I thank the hon. Gentleman for his comments. As the Bill is called the Ivory Bill, it is well established that its scope can include ivory. The only definition included in the Bill refers to elephants. A clear opportunity is available to Members to expand that to include other species that are directly at risk from the precedent set by tackling only elephant ivory.

I am not certain that the hon. Gentleman is correct when he talks about the judicial review risk. However, I am certain that we all want elephant ivory to be banned and the ban to be extended to other types of ivory. Two possible routes have been laid out: the first is accepting the amendment proposed by the shadow Minister; the second is for the Government to take a short consultation period, after having accepted the amendment, to ensure that everything is in order.

I think we might be dancing on the head of a pin. We all want these species to be brought into the scope of the Bill, and we need to work out the best way of doing that. From my point of view, having, ahead of the conference, a piece of legislation that bans trade not only in elephant ivory but in that of other species would send a powerful message, and a stronger one than if the Bill included only elephant ivory.

[Dr Cameron]

I also rise to support amendment 11. It is imperative that there is no knock-on effect and endangerment of further species as a result of the Bill. We heard extremely clear evidence from experts that that is exactly what would happen. We must ensure that it is all-encompassing. We have heard already that expert opinion says that that can be done timeously and so as not to interfere with the announcement at the conference later this year. A short consultation period can take place.

Where there is a will, there is definitely a way in the case of the Bill. I also put on record that although announcements at conferences are extremely welcome and important, they are not as important to me and to the Scottish National party as protecting a number of endangered species for future generations.

[Liz Twist]

I also rise to support amendment 11. I am afraid I do not have the erudition about some of the species in question that other hon. Members have. However, I think it was clear on Second Reading and is clear from other evidence that there is widespread support for ensuring that the Bill encompasses the whole range of ivory, so that there are no knock-on effects and we can protect as wide a group of species as possible, with the aim of protecting wildlife. So I urge the Minister to—