Portsmouth Law School

DEFRA announces the start of its consultation on an ivory ban

6th October 2017

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Following Andrea Leadsom’s announcement back in September 2016 that Defra intended to consult on the future of ivory sales in the U.K. it all went a bit quiet. Amid the traumas of an election and Brexit squabbles I feared that this had been put “on the back burner”. Then on Friday, 6th October, Michael Gove announced that the three month consultation had started.

The sale of ivory in the U.K. is on the one hand deceptively simple – you can’t sell it! However, it is the nuances and exceptions to the rule that make for an area of law and law enforcement fraught with difficulties. The regulations which govern the sale of ivory in the U.K. (the Control of Trade in Endangered Species (Enforcement) Regulations 1997, or COTES) sets out some important exemptions. The most controversial being the so-called “antiques exemption”, whereby it is legal to sell ivory provided that it was “worked” before 1947. This means that not only must the ivory used have come from an elephant which died before 1947 but that the tusk must have been “significantly altered from its raw state for jewellery, adornment, art, utility, or musical instruments…” before that date.

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Conservationists and law enforcement professionals have argued that it is nigh on impossible to tell the difference between an ivory object made from an elephant which died in 1940 and one that died in 1960 and so it has been, until now, down to the seller of the item to determine whether or not the artefact is legal to sell. Case law has shown how difficult this is. Specialist antiques dealers can get it wrong (R v Chiswick Auction Rooms, 2014) let alone the non-specialist dealers who may not know (or not care) whether what they are selling is legal or not. Against this there has been a growing call from the public (over 100,000 people signed a petition for the sale of ivory to be debated in Parliament this year) and specialist groups for clarity and direction from the Government. In so many ways the U.K. leads the word in its approach to wildlife conservation but its lack of movement on this point has been criticised by wildlife groups. Friday’s announcement comes as welcome news therefore, especially as the consultation document admits that the existence of a legal market for ivory (such as the antiques market) present opportunities for a criminal element to launder new ivory as old. This is certainly something my own research has shown.

The new proposals still include some exemptions but they are much tighter than the current antiques derogation. Musical instruments that contain ivory (pianos, violins, etc.) will continue to be allowed to be sold as will items that contain just a small amount of ivory (although the amount is still to be decided). The trade between museums in important artefacts made from ivory will continue and the exhibition of ivory objects in galleries and stately homes will not be effected.

The consultation is a unique opportunity to direct the future sale of ivory in the U.K. Hats off to Mr Gove for following through and let’s hope it leads to serious change.