My Lords, these amendments relate to the scope of the ban and, in particular, some of the exemptions to it. I emphasise how uncomfortable I am in having to address this to a number of my noble friends, but I do so with great sincerity. The department has undertaken extensive consultation with a broad range of stakeholders, including the music sector, the antiques sectors and all the sectors engaged, as well as NGOs interested in conservation, to shape the Bill and, in particular, to establish a narrow and carefully defined set of exemptions.
I was struck by what my noble friend Lord Hailsham said—he used the word “proportionate”. The architecture of this proportionate approach has been carefully designed to balance the need to close our domestic markets with consideration of the interests of those who currently own certain items of ivory and the obligation to protect our cultural heritage. I think that my noble friend Lord De Mauley was in his position at Defra when my party had a manifesto pledge, in 2015, for a total ban. We have considered with the consultation that there are proportionate ways of approaching what is an imperative: to do everything that we can to stop the incidental and direct pressure on the elephants on this planet. That is why I will cut to the chase and say that the Government cannot support the amendments in this group. But I would like this opportunity, as is only reasonable, to set out why in more detail.
Amendment 2, tabled by my noble friend Lord Cormack, serves to alter the definition of ivory in Clause 1 of the Bill. This amendment would mean that any item with less than 20% ivory or any musical instrument with less than 30% ivory would be excluded from the ban, meaning that it would remain legal to deal in such items. Indeed, they would be within the scope of the rest of the Bill. The amendment does not state whether this threshold refers to volume, weight or another measurement. There is no backstop date referred to. This amendment would mean that items of any age with less than 20% ivory or any musical instrument with less than 30% ivory would not be affected by the ban and would only be subject to existing CITES regulations. This amendment would greatly undermine the scope and purpose of the Bill.
My noble friend Lord Cormack’s Amendment 22 refers to the exemption for pre-1918 portrait miniatures. The amendment would remove the size qualification, excluding the frame, from the exemption. We had this discussion in Committee, and my noble friend the Duke of Wellington referred to his own personal and rather considerably sized portrait miniature, which he rightly said he had no intention of dealing or selling. As the noble Lord, Lord Grantchester, said, this size qualification was developed from evidence provided during a House of Commons evidence session by a portrait miniatures expert. This evidence suggests that the size qualification, as we have heard, would include in the exemption 90% to 95% of pre-1918 portrait miniatures, which is the majority. Any item that falls outside this size qualification may also be exempt as an item of outstanding artistic, cultural or historical value and importance if it meets the criteria, which will be set out in regulations. The Bill makes clear that a frame would not be included in the calculation of the surface area of a portrait miniature. As I said, we will be developing detailed guidance on how to measure surface area, in consultation with relevant stakeholders.
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Amendments 23 and 26 would raise the thresholds for the de minimis exemption, which is for pre-1947 items with low ivory content, and for the pre-1975 musical instruments exemption respectively. The thresholds for these exemptions—10% for de minimis
and 20% for musical instruments—were established in close consultation with industry experts and wider stakeholders. We believe that they demonstrate a proportionate approach and retain the integrity of the Bill’s overarching purpose. We must not lose sight of the importance of this purpose: to close our ivory markets and to help to ensure the future of a magnificent species. To broaden the scope of these exemptions would serve to weaken the ban, undermine the carefully balanced architecture of our exemptions package and threaten the very purpose of this Bill.
The 10% de minimis threshold will allow dealing to continue in items such as inlaid furniture but will prevent dealing in other items that contain larger amounts of ivory. Information on how volume should be assessed will be outlined in guidance. When registering an item, the owner will conduct a self-assessment on the volume of ivory in their item in line with this guidance, meaning that the item will not be damaged. There are parts of the world that interpret the de minimis threshold differently. For instance, in California, a 5% threshold is in place. I can tell the noble Lord, Lord Inglewood, that in New York state a permit is also required for sale. I will find out whether that is the case in other parts of the United States or the world.
Through our consultation, and evidence from the Music Industries Association heard during the Commons Committee stage, we are assured that the majority of commonly played and traded musical instruments and accessories contain less than 20% of ivory, which is our threshold for this exemption.
Amendments 24, 32, 35 and 36, tabled by my noble friend Lord Cormack and the noble Lord, Lord Inglewood, deal with the requirement to register items under the de minimis exemption prior to engaging in commercial activity. The effect of these amendments would be to remove the need for items meeting this criterion to be registered by the owner prior to their sale or hire. As I have explained, the de minimis exemption is one of five separate categories of exemption to an otherwise total ban on sales. As such, it is imperative that it is treated in the same way as the other categories in order not to undermine the integrity of either the Bill or the compliance process.
The compliance process is, of course, also the key means of providing reassurance to purchasers that they, too, are acting in compliance with the ban. A person who purchases an item that has not been registered may also be found to be in breach of the ban and liable to sanction. A responsible purchaser should therefore inspect the registration document, and may also cross-reference it against the entry in the online database, before committing to the purchase.
I very much understand the point raised by the noble Lord, Lord Inglewood, and the noble Baroness, Lady Flather. However, the Government consider that an online self-registration system represents the most proportionate means of ensuring compliance. We will put in place an efficient, easy-to-use and non-bureaucratic process designed to meet the needs of all users. It will place a small administrative responsibility and a small financial cost on the seller—the person who will benefit financially from the exemption. We recognise that potentially a substantial number of items would fall
under this exemption and that there may be cases where an individual has a high volume of similar items requiring registration. That is why we are developing this system in close consultation with a variety of stakeholders who will use it, including owners and dealers of pre-1947 items with low ivory content, to make sure that it is able to meet their specific needs as far as possible.
The online self-registration system will encourage people to engage actively with the new measures by confirming that their item does indeed meet the exemption. This registration process will be important for both buyers and sellers, as it will provide assurance to both parties that the commercial exchange taking place is fully compliant with the law. People purchasing ivory items that are exempt from the ban and have been correctly registered will be secure in the knowledge that their purchase is legal. The online self-registration process will be quick and easy to use. I emphasise that there is no intention for the process to be burdensome and bureaucratic for those wishing to engage in legal activities in ivory. There will be provision for those unable to access the online system to register their items through offline means. The noble Lord, Lord Inglewood, used the words “cash cow”. I should say that a small fee will be charged, but again there is no intention that this will be prohibitive to users. We believe that this is indeed a small cost when considering the critical objectives that this compliance process will help us to achieve.