Ivory Bill

Lord Carrington of Fulham Excerpts

2nd reading (Hansard): House of Lords
Tuesday 17th July 2018 Lords Chamber

[Lord Carrington of Fulham (Con)]

My Lords, strangely, I want to start by making a declaration of non-interest. Because of the sometimes emotional nature of this debate on the Bill, I think it is important to make clear that I have no interest to declare: I am not connected to the antiques trade; nor do I have a collection of ivory items, although inevitably, in common with many people, including perhaps some of your Lordships, I own some objects that contain ivory. Most were inherited from long-dead relatives, such as a Victorian coffee-pot and some early 20th-century fish knives and forks, or are decorative items which contain a small piece of ivory inlay, such as an escutcheon around the keyhole of a wooden box.

Let me add that I strongly support the intention of the Bill, as I suspect do the overwhelming majority of your Lordships and people outside this House. We all want to protect elephants and other animals hunted and slaughtered to feed the trade in modern ivory, and I have no doubt that the intention of the Bill is to do just that. However, I have very real concerns that the Bill will fail to achieve these objectives. Indeed, I fear that, paradoxically, the Bill as drafted may well increase the likelihood of poaching of elephants for their ivory.

The logical basis of the Bill is that modern ivory items are indistinguishable from items made from ivory long ago. Many people familiar with antique ivory dispute this assumption by Defra. I will return to this in detail but, broadly speaking, there are many ways to distinguish old from new ivory. At one extreme is radio carbon dating and at the other is the expertise of museum curators and ivory specialists in the antiques trade. As the Bill assumes that it is not possible to distinguish old from new, it bans all trade in ivory—except that it does not, as it creates three groups of exemptions from the ban. First, it creates an elaborate system for identifying museum-quality items of exceptional importance, which museums can then buy and sell. This accepts that museum curators can distinguish old ivory from new, since these items will be vetted by experts before they can be considered to have met the museum-quality criteria. Just how this fits with the belief that it is not possible to date antique ivory with an acceptable degree of certainty for lower-quality items is unclear.

If it is possible to tell that an item of museum quality is made of old ivory and not faked in some Vietnamese workshop, then it is possible to tell that a less remarkable item is also old. After all, the ivory is the same; it is just the ageing effects on the ivory, and often the quality of the workmanship, that are different. The Bill ignores the scale of the problem which any panel of curators will face: the number and range of items will be very large. We have many museums in this country and, of course, museums able to buy and sell will not be confined to the UK: American and EU museums regularly buy and sell in the UK’s thriving art market, and the Bill seems to allow for that.

What is museum quality for the British Museum, which has just accepted the Sassoon collection of ivories, will be different for another museum, equally respectable and academically rigorous and duly registered by the Arts Council. There are 1,576 Arts Council-registered museums in the UK. A museum such as the Geffrye Museum near Bishopsgate in London, specialising in middle-class and working-class life in the 17th, 18th and 19th centuries, would probably not be interested in the Sassoon collection, but might well be interested in an ivory-handled table knife of no great artistic value from the 18th century as illustrating the lifestyle of ordinary people 300 years ago. It might be the Millennium Gallery in Sheffield, which has an outstanding collection of cutlery through the ages, many pieces of which will have ivory handles.

The second and third categories of exemption are pre-1918 portrait miniatures and pre-1975 musical instruments. I warmly welcome these exemptions, although I suspect that they were granted not because of any logic about the amount of ivory as compared with other similar items, but rather to avoid vocal opposition from well-organised lobby groups and media stars in the music industry and on “Antiques Roadshow”. It is important to point out that the amount of ivory in a portrait miniature can be greater than that in an 18-century theatre ticket disc, yet the miniature is exempt and the theatre ticket is banned. The value of both, by the way, has nothing to do with the small amount of ivory they contain.

For musical instruments, the curious exemptions are the cut-off date of 1975 and the 20% by volume of ivory that the instrument is allowed to contain, as opposed to a limit of 10% for all other items containing ivory. If you have an upright piano with ivory keys dated before 1975, you are exempt and able to sell it. If you have a 1920s art deco sculpture, by a world-famous artist, of a dancer with a metal body but ivory head and arms, above or below 10% by volume makes no difference: you are banned from selling it as the cut-off date is 1918. Any exemption is welcome. All I ask for is some consistency and perhaps some clear and transparent logical justification.

This illustrates another problem with this Bill: the sheer volume of ivory items created over the centuries before plastics became available. I have seen estimates of 2 million to 3 million objects incorporating ivory, and I suspect that this will turn out to be a gross underestimate. Most table cutlery, to take but one example, had ivory handles prior to World War 2. There are probably several million knives and forks of all types incorporating some ivory still in existence. Before the advent of plastics, ivory was used as an insulator for a wide variety of items, such as coffee-pot and tea-pot handles. Many chests of drawers, tea caddies and writing boxes had small ivory inlay, and so it goes on. The number of items containing ivory made before 1918 will run into many millions.

The Bill recognises this problem by allowing a so-called de minimis rule of 10% by volume, although it is unclear what is meant by volume. Is it the volume of the item, including the volume in the inaccessible interior of, say, a hollow statuette or is it the volume of the silver and ivory that the outer casing of the object is made from? Who is to judge—and indeed how—whether the ivory is 10% or above or below without removing the ivory and measuring its height, width and depth? Measuring the amount of wood, let alone the amount of ivory inlay in, say, a chest of drawers is not easy because of the construction. Even with a humble fish knife and fork set, the handle may be ivory, but it is likely to be a thin tube of ivory slid over a metal shank, so the ivory content may appear to be above 10% but in reality may be well below and so qualify for the de minimis exemption.

Indeed, is the supposed ivory ivory at all? Ivory was always an expensive material, so for cheaper items, particular for household use, bone from domestic animals was substituted for ivory. Particularly with small items, it is very hard to tell the difference because the bone was chosen deliberately and with great care to look like ivory. Is my granny’s set of silver-plated fish knives, probably given to her on her wedding in 1911, ivory-handled, or are the handles made of bone chosen to look like ivory? It would take an expert in ivory to tell, and that expertise is not likely to be available to the police, the enforcement officers charged with raiding auctioneers or antique dealers.

The Bill says that items with less than 10% ivory by volume can be sold, but to be sold they have to be registered. We will need to explore in Committee how the registration will work. Whoever is charged with keeping the registry will have a major database problem, given the high number of items that potentially will need to be registered. To work, it will also have to be a low-cost registration process. I have a silver-plated coffee pot with ivory heat insulators in the handle, so that is well below 10% by volume. It is of little monetary value but considerable sentimental value because it was my great-grandfather’s, probably a wedding present from around 1880. Its value on the market would be £50 to £100 if I was lucky. So if the registration cost is £5, say, that might allow it to be sold, but if the cost is £25 then the coffee pot would end up in landfill, which would be a shame because it is quite attractive and someone might love to use it in years to come. More seriously, there are also implications for inheritance tax. If someone more fortunate than me has a valuable item that is more than 10% ivory, and assuming that it forms part of an estate that includes a house, taking the total over the inheritance tax threshold, the item containing ivory would have to be valued for probate. Since it could not be sold, I assume that HMRC would be happy to assign it a nil value—unless HMRC’s intention is that items containing ivory will be exempt from inheritance tax.

There is another problem with the register. As I understand it, the intention is that each item of less than 10% ivory will be given a certificate saying that it is registered and can be sold. So my granny’s fish knives wedding present and my great-grandfather’s coffee pot will have just such a certificate, assuming that the ivory content is less than 10%, as will many thousands of other similar items. These items were mass produced. There are many identical coffee pots, fish knives and forks around. If they were silver, they would have a hallmark that would allow them to be uniquely identified, but they are not; they are silver-plated and so have no distinguishing features from the same anonymous manufacturer’s mass-produced similar items. So the certificate of registration will inevitably find it hard to uniquely identify my granny’s wedding present. In unscrupulous hands, this means that it would be possible to forge certificates or to duplicate them electronically, so making enforcement of the ban by the police impossible. I am sure that we will explore these issues in considerable detail in Committee and on Report.

Coming back to whether the Bill will achieve its objective, which is to stop the slaughter of elephants and the carving of new ivory for sale, my right honourable friend Mr Gove believes that the UK will set an example that the rest of the world will follow and that those countries that currently fuel the demand for new ivory carvings will clamp down on their domestic trade in ivory. I hope they do, although the evidence is that the partial ban in China has only moved the carving of ivory into neighbouring countries and the sale of new ivory has continued, although more discreetly.

However, what effect will the ban have in the UK on the sale of antique ivory, and on having new ivory and passing it off as old? It is unlikely that anyone will try to carve new ivory to look like my granny’s fish knives, but then, they never would have done, as there is no value in doing so. The only value will be in forging new ivory carvings that look like antique museum-quality ivory carvings, which can then be sold. If a faked modern carving passes the vetting, its value will become very large outside the UK—an attractive proposition to criminals.

On the plus side, the Bill will stop the sale of ivory in the UK on eBay, particularly modern ivory trinkets, where perhaps the real problem of new ivory carving lies. But that trade could easily be stopped by much simpler legislation, even if it is not already illegal under existing laws, which it almost certainly is.

Since the Bill already accepts that a vetting panel can identify old ivory from new for the museum exemption and, indeed, would have to for registration purposes, I suggest it would be simpler to extend that to a general licensing system, so that antique ivory can be sold only through authorised dealers and auction houses which can demonstrate to a panel of experts their competence in identifying old from new ivory. Again, we may want to explore this in Committee.

In summary, this is a very worthy but complex Bill which will be hard to enforce and which the police will be unlikely to have the resources to enforce. It will lead to the destruction of many historic antiques, arbitrarily stripping the value from items currently legally owned by voters, and encourage the faking of high-value, museum-quality ivory carvings. All this when there are simpler and more effective ways of achieving the laudable aims of the Bill. In other words, this Bill has all the potential for being another Dangerous Dogs Act. For all its virtue signalling and gesture politics, it will fail to save the life of one single elephant currently roaming the African veldt.

Ivory Bill

Lord Carrington of Fulham 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.

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[Viscount Hailsham (Con)]

My Lords, I rise to speak to my noble friend Lord Cormack’s Amendment 2, but what I have to say is in support of all the amendments in this group, including that tabled by the noble Baroness, Lady Quin, on Northumbrian pipes. Sharp-eyed noble Lords will have noticed that I put my name to a number of these amendments and then withdrew it. That was not because of lack of support but because I thought I was not going to be here performing professional duties, and I thought it discourteous to your Lordships’ House to sign amendments and not be here. That depends on noble Lords’ point of view.

I think everyone who has spoken in this debate and all the other debates about the Ivory Bill endorses the principle of trying to prevent elephant poaching—it is a dreadful thing—and thinks that we need to do all we can to stop it. As a matter of fact, robust action against poaching is probably the most effective way, but an effective, proportionate and reasonable way of disrupting the trade is also appropriate. That is the purpose of this Bill, but we have to apply the test of proportionality to identify whether the actions contemplated by the Bill are proportionate in their consequences both ways. There are two very serious disadvantages associated with what this Bill is about—I shall come to the amendment specifically.

The first, which my noble friend Lord Cormack dealt with quite correctly and at some length, is the interference with private property. This Bill is flagrant interference with private property, and my noble friend Lord Inglewood takes the same view. At the same time, there will inevitably be a consequential loss and destruction of the artefacts. The description of trying to sell a low-cost bit of brown furniture—although of quite interesting historical value—and it proving impossible will inevitably lead to the skip.

There is therefore a cost in all of this: a cost to principle and a cost to artefacts. That takes me on to the question: what will this Bill achieve in stopping the elephant poaching or trade? I share the view of my noble friend Lord De Mauley: I suspect very little. What this is actually about is sending a message, but messages go unheeded and unheard, and I am sure that this one will. It is about making gestures, but often these gestures should not be made. I remember the Dangerous Dogs Bill. I remember unit fines in the magistrates’ court. These were gestures that should never have been made and messages that should never have been sent.

Against that background, I turn to the way of addressing what has been identified. This Bill is going to pass, and I agree with my noble friend the Duke of Wellington that it should pass. However, there are defects within it, and the defects are being addressed by looking at the exemptions. This House should be trying to enlarge the exemptions and seeking to put in further provisos. It is in that spirit that I propose to support probably all the amendments in respect of which your Lordships’ opinion is sought, and I hope there will be quite a few Divisions. I think, too, however—and this will be to the great relief of your Lordships’ House—that the views I have expressed, which are general to the amendments in this group, actually apply to all the other amendments and will not require any repetition from me.

[Lord Carrington of Fulham]

My Lords, I rise to speak to my Amendment 25, which is a very specific amendment and rather esoteric, but I will come on to that in a moment because I really just wanted to register my agreement with the previous speakers that this Bill is far too restrictive. We are banning ivory items and ivory inlays and items containing ivory that have no possibility of being recarved in the Far East for sale on to that market and no prospect of having any value in themselves. An ivory carver sitting in Vietnam, for instance, would have no interest in carving a sliver of ivory to go into a false 18th century box. It would just make no sense at all and it would be nonsense. We ought to have a sense of proportion about what we are trying to do in this Bill.

What we are trying to do is to stop large lumps of ivory being exported to countries where they will be recarved and converted into the items that their populations think are attractive and for which they will pay good money. This is not an emotional business; it is purely a financial business. If we ban the export of large items of ivory, or their sale in this country—because they will be smuggled out of this country eventually, just as rhino horns are smuggled out of here, which is a similar problem—we will achieve what we can achieve in respect of saving the African elephant using the antique ivory trade.

As has been said, the protection of the African elephant is not down to what is sold at Christie’s in King Street in London. It is down to whether we can finance the actions against the poachers, whether we can train the police and protection officers in those countries, whether we can arm them properly, and whether we can ensure that the supply routes where the ivory is taken out of the country are shut down. That is what it is really all about. It is not about this gesture politics Bill. That is what it is about, and that is what we should be concentrating on.

I add something that has not been mentioned because it is not politically correct to do so. A lot of ivory is not obtained by rogue poachers; it is done with the connivance of people who are very powerful in the countries where the elephants are, and they make a lot of money out of it.

My noble friend the Minister assures me that several of the countries which have large numbers of elephants are in favour of us banning the sale of ivory. I am perhaps too cynical. Perhaps I have lived too long a life dealing with rogues and rascals both in politics and in business, but if I were trying to make money out of selling ivory, I would try to shut down part of the market which I thought conceivably—however misguidedly—could be competition. In other words, I would of course say, “Ban the ivory market. Ban, ban, ban”, so that I can kill the elephants in the savannah and make money by selling those tusks to Hong Kong.

I should apologise, because perhaps I should have made that speech during Committee but, as some noble Lords will know, I was under the depredations of various surgeons then, so I apologise for not making it then.

My Amendment 25 is rather esoteric. It is even more esoteric than the Northumbrian pipes of the noble Baroness, Lady Quin. Under the Bill, an item which is detachable and can stand alone is an individual item and is therefore treated as such. This is not usually important, but it is very important if you are dealing with scientific instruments. The way that 18th-century or early 19th-century mercury barometers are regulated is by a little knob that pulls out. It is detachable and independent of the barometer itself. You would use it to adjust the vernier on the scale to measure the height of the mercury and to put pressure on the mercury reservoir at the bottom of the barometer, when you regulated the barometer to show the correct barometric pressure, to make sure that the mercury was at the right level. So it has two functions.

My amendment is specifically designed to say that this knob should be treated as part of the barometer, not as a separate item, because these knobs were almost always an ivory disc—not dissimilar, I have to say, to the discs used in so many other things, such as portrait miniatures, tickets for theatres, and so on, which have no commercial value for recarving. They have commercial value because there are artistic elements to them, but the knob has no commercial value. If I tell your Lordships that they are 2.54 centimetres in diameter, those of you with a scientific bent will know that that is an inch. They are of a maximum of an inch in diameter, very thin and on a metal shank. All I am trying to do by the amendment is to ensure that antique dealers do not have to throw away the integral knob when they sell the barometer.

[The Earl of Clancarty]

My Lords, I apologise for not having spoken at Second Reading, so I shall speak very briefly. I fully support Amendment 2, tabled by the noble Lord, Lord Cormack, as well as the other amendments in the group. I believe very strongly in the protection of endangered species, but I also believe strongly in the protection of cultural heritage. The principles I hold on culture are no different from those I held on a previous Bill that passed through this House concerning the protection of cultural property in time of war. As it stands, this is a lop-sided Bill. We need to prevent the destruction of our cultural heritage, which, for some objects, is a far more likely outcome than the Minister thinks, unless the exemptions are allowed.

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[Lord Cormack]

My Lords, I wish to refer briefly to Amendment 6, which is grouped with my noble friend Lord De Mauley’s leading amendments, as is my Amendment 5. I will not speak to that amendment; my noble friend Lord De Mauley has effectively covered it, because I also want to take out the word “outstandingly”.

My Amendment 6 would take out the words “an important” and put in “a significant”. That might sound of no significance, but it is. My noble friend Lord De Mauley talked about the sorts of objects we will be dealing with here. One of the things that attracts me to social history is the things that people used and gave. I once knew a man—I have mentioned him in your Lordships’ House in earlier debates—who had an amazing collection of theatre and race tickets. Many of them were in ivory. They could not be called outstanding and I do not think that any of them could be called important, but significant they most certainly were. This was a collection that reflected the social history of the mid-18th century: the people who patronised the playhouses or went to the racecourses and gained admission by presenting an ivory ticket or token. A large collection such as the one my friend had is of some value. Many of the examples were indeed individually unique; no other tickets to that particular theatre or performance were known to exist.

I referred to this earlier when I talked about the first amendment: he collected these things because of their intrinsic interest and his own fascination with social history, but also because of the knowledge that collectively, even though he probably had not given more than £10 or £20 for any individual item, the collection was worth something. He knew that if he fell on difficult times or wanted to help a son or daughter, there was a little nest egg that would probably produce a few thousand pounds. If we enact the Bill, we will deprive a collection and a collector like that. We are effectively confiscating private property. We are not physically destroying it, although, as my noble friend Lord De Mauley said a few minutes ago, that might well be the ultimate result, but we are saying to somebody that that property, legitimately and lovingly acquired, is no longer theirs to dispose of for any money at all. That is unjust and wrong. I return to the old, worn record: how does preventing the sale of such a collection, the items in which are all of some significance, help in any way to preserve an African or an Asian elephant in 2019 or 2020?

We are all concerned about the elephants—we keep coming back to that—but there is nothing incompatible between being desperately keen to save elephants and being desperately keen to save elements of our social history.

[Lord Carrington of Fulham]

My Lords, I do not want to intervene for long, but there is a slight problem with the definition of “outstandingly”. What is outstanding to one expert may well not be to another. I raised this at Second Reading. It comes down to what sort of museum collections you are trying to create. Museums such as the V&A or the British Museum are interested only in outstanding items, and they can define what they mean by an outstanding item by reference to what they already have in their collections: to be outstanding the item should add to that collection.

Many museums, however, are not trying to do what the British Museum or the V&A do. The example that I have used before is the Geffrye Museum, a series of old almshouses on the continuation of Bishopsgate, just outside the City of London. The Geffrye Museum recreates middle-class rooms down the ages. Those middle-class rooms will have ivory items—ivory cutlery and tea caddies for example—none of which is outstanding in itself. However, items are outstanding in the sense that the Geffrye Museum considers them exemplars of what was used at that time by middle-class people—and increasingly, in some museums, by working-class people in this country. The definition of outstanding is, therefore, somewhat open to interpretation and it would be much better to remove “outstandingly” and replace it with a word such as “significant”, which would allow much more leeway in deciding whether an item is worthy of a national collection or is something that no one is interested in preserving.

[Baroness Neville-Rolfe]

My Lords, my concern is with the effects of this Bill, which may come to be criticised in the fullness of time, as elephant stocks recover and beautiful objects are lost as a result of it, and collectors of Art Deco work containing ivory are stopped in their tracks. I accept that, as we have heard from the Minister, Defra Ministers consulted during the Commons stage of this Bill, but the debate here has shown that some further changes are needed in the interests of common sense. So I support the amendments in this group from my noble friend Lord De Mauley.

I hope that the Minister will be a bit more receptive than he was towards the previous group, and ask whether he can think of any ways to reduce the concerns of people such as us about the perverse effects of these arrangements, for example in the guidance he described earlier.

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[Lord Cormack]

My Lords, I will not detain the House very long on this amendment, which is similar to an amendment I moved in Committee. I was disappointed in the response that I received. This amendment does not touch at all on any of the exemptions or provisions of the Bill; it merely makes the point that if somebody has a certificate, it should remain valid if the ownership of the item passes by inheritance to a member of the family of the registered owner. That seems to me to be sensible, fair and equitable and I cannot understand why anybody would be opposed to it. I beg to move.

[Lord Carrington of Fulham]

My Lords, Amendment 39 is a probing new clause, because I think the issue is already covered in the Explanatory Memorandum. The concern is that if an ivory item or collection of ivory items is not registered, it cannot be sold. If it cannot be sold, it has no value. If somebody dies and a valuable collection of ivories is in their estate and they have left their estate to, say, their children, then the ivories will pass to the children, as I understand it, under the provisions of this Bill—indeed, that is made clear in the Explanatory Memorandum.