We live in hope but must prepare for reality
Arts and heritage minister Michael Ellis told the Art Business Conference on September 4: “It is important that the measures being taken to regulate the ivory trade are balanced with considered exemptions.”
A week later during the Lords debate at the committee stage of the Bill, rural affairs minister Lord Gardiner of Kimble said the Government would not accept amendments tabled in trade interests and they were withdrawn, albeit with the promise of further debate at the report stage.
Such tabling, rejection and withdrawal of amendments at this stage is normal under parliamentary convention, as it puts the Government on notice of serious future challenges without disrupting the passage of legislation – it is at the report stage that the battle will be lost and won.
Exemptions under the Bill are narrow indeed. Last October, environment secretary Michael Gove introduced the Government consultation, saying: “Ivory should never be seen as a commodity for financial gain or a status symbol – so we want to ban its sale. These plans will put the UK front and centre of global efforts to end the insidious trade in ivory.”
On January 31 the then foreign secretary Boris Johnson praised China for its decision to close down its entire domestic ivory market, describing the UK as “united” in its perspective with China and “more forward looking and ambitious in our ban than the European Union itself”.
Johnson added: “Whilst I’m on the subject of ivory, don’t forget, as we work to save the elephant, the threat then moves across to the hippo, and the narwhal, and other bearers of ivory in their jaws.
“And so I am very glad to say that earlier today also that the Hong Kong Legislative Council voted to end the Territory’s ivory trade by 2021, with no compensation for dealers.”
With public opinion overwhelmingly on the side of a total ban, and the diplomatic and political prize of the International Conference on the Illegal Wildlife Trade next month, a significant shift in policy looks unlikely.
The imminent conference is also a major incentive for the Government to rush the bill through, but, as Lord Judge has pointed out, this hastiness has serious implications if it means the failure to amend a clause that allows the secretary of state to invest search and seizure powers in civil servants, rather than restricting them to the police.
Exemptions and how they might work
Items with more than 10% ivory content qualifying for exemption must be “of outstandingly high artistic, cultural or historical value”, taking into account their rarity, “the extent to which the item is an important example of its type” and “any other matters specified in guidance issued by the secretary of state”.
Few people outside the trade have the knowledge to decide this, and limited time and resources will restrict any reviewing committee. Items failing to qualify under the ‘Outstanding’ exemption can only be sold or gifted to a designated museum. If museum curators sit on the committee, this risks a potential conflict of interest.
An exemption covering pre-1918 portrait miniatures, pre-1947 pieces and pre-1975 musical instruments with less than 10% intrinsic ivory content rules that they must be registered with the secretary of state, who would issue confirmation of the registration, which would then go on record for future transactions. However, the detail required, along with the payment of an as-yet unspecified fee, might well deter applications for cheaper pieces.
Hong Kong’s enforcement starts in 2021. UK Government rules stipulate transitional periods for businesses to adapt for such legislation, especially where no compensation is due. This should delay enforcement until at least 2021 if not later.
But with the prospect of a near-total ban, who is prepared to invest in ivory now?
In future, valuers must identify if an object’s de minimis content is indeed elephant ivory or another banned material. Time and cost will determine whether they bother or simply refuse to consider anything with ivory content.
If so, this would help with enforcement. As Shadow Environment Minister Lord Grantchester noted during the Lords debate, the CITES border force comprises just ten members, while the National Wildlife Crime Unit has just 12, including admin staff and no funding commitment beyond 2020. Meanwhile the OPSS (Office for Product Safety and Standards), which will oversee the process, has no expertise in this area.
If antique ivory loses all value as a commodity, and becomes socially unacceptable, museums will come under pressure not to accept donations and remove it from display. Then, at best, it will go into storage. If so, how long before pressure on space and preservation costs lead to a relaxation of de-accessioning rules? If that happens, then destruction becomes a greater risk.
The exemption for portrait miniatures makes sense; the failure to protect other treasures for similar reasons less logical.
Michael Ellis’s promise of “balanced [and] considered exemptions” is a straw to clutch if nothing else.