Ivory Act: In the Frame Bare Bones

Posted on 28 January 2020

Ivory Act: In the Frame Bare Bones

The Ivory Act 2018 ("Ivory Act") received Royal Assent on the 20th December 2018. Mishcon de Reya advised on the draft legislation and provisions during the consultation.

The legislation addresses the import, export and domestic trade in ivory. The resultant effect is a near total ban on the trade in any ivory items within the UK with limited exceptions.

The Ivory Act has taken a step beyond pre-existing English legislation to impose further restrictions on the sale and importation/exportation of elephant ivory (Section 37(1)). This follows legislation in the US which imposed greater restrictions on non-commercial imports / exports of African elephant ivory under legislation that was brought into force on 6 July 2016 (note that commercial ban of imports in the US was already in place) and a ban on domestic trade in ivory in China. Prior to the implementation of the Ivory Act in the UK the international trade in ivory was legislated by CITES (EU 2017/C 154/06) however domestic ivory trade was not. CITES is implemented in the EU and places restrictions on intra-EU trade and imports and exports from EU Member States from/to third countries. Under CITES, the international trade in  "worked" (defined in Article 2(w) of EC No 338/97) ivory items made prior to 1947 can take place without any certificate, (this includes jewellery, adornment, art, or musical instruments) (Article 62(3) of EC No. 865/2006). The Ivory Act places more stringent and far reaching controls on elephant ivory, which will control the trade in ivory in addition to the existing CITES and EU Wildlife Trade Regulations (that implement the provisions of CITES, but also go beyond the requirement of CITES in some respects, i.e., requiring import permits), which will continue to apply to the import and export of ivory to and from the UK.

As anticipated, the Ivory Act has sought to obtain the difficult balance between the protection of endangered wildlife, prohibition of the Ivory Trade with the commercial and historical interests of the art and antiques market and related stakeholders.

A Judicial Review against the Ivory Act was dismissed on 5 November 2019, however Mr. Justice Robert Jay granted the claimants, known as Friends of Antique Cultural Treasures Limited ("FACT") permission to appeal in the Court of Appeal. They have been given the permission to appeal on the second ground advanced: namely that there were more proportionate means to achieving the Ivory Act's objectives and that the narrowness of the exemptions undermine the dealer's right to conduct a business and their right to property. The set date of the appeal is the 24 and 25 of February 2020.

Who is caught by the Ivory Act 2018?

The Ivory Act prohibits the trade in all ivory in the UK, except for a few limited exceptions as set out below relating to the total prohibition of dealing with elephant ivory:

  • For outstanding artistic value and importance, whereby the Secretary of State will issue an exemption certificate only to the applicant. (Reg. 2)
  • Pre-1918 portrait miniatures if the surface area is no more than 320 cm² (Reg. 6)
  • Pre-1947 items with less than 10% of the total volume of the item being ivory (Reg. 7)
  • Pre-1975 musical instruments with less than 20% of the total volume of instrument (so for example pianos with ivory keys may not be caught) (Reg. 8)
  • Acquisitions by an accredited museum (Reg. 9)1

If you are within any of the exceptions, you still have to apply to the Secretary of State to be registered as the owner of this item, which may include a fee prescribed by the Secretary of State (Reg. 10).

This legislation includes any pieces that contain ivory and expands far beyond what may be considered by the layman as an ivory piece, for example books, frames, cutlery with ivory handles.

The de Minimis exemptions are calculated on the % of the total volume of the material of the item and are so low that this legislation may catch people unawares.

What is included in the prohibition of elephant ivory?

You cannot keep any ivory if you are keeping it for sale or hire. The legislation remains silent as to loans. Once the legislation is enacted, you equally cannot export or import from the UK for sale or hire any ivory covered by the Act. (Reg. 1.2).

The Act does not prohibit the ownership or inheritance of ivory, or articles containing ivory.  It does prohibit the trade in ivory, and keeping of ivory for trade, in all circumstances except for the five exemptions listed above. 

Gifts

You can gift, or inherit ivory pieces in the UK but you cannot ever sell or even offer to sell the item.

What happens if you do not comply?

Subject to this matter being dealt with summarily or on indictment, if convicted of a criminal offence you can be imprisoned for up to 5 years and a fine (Reg.12.4). Many consider the Ivory Act long overdue and in some instances not far reaching enough, whereas for others apprehensions remain as to the effect the legislation will have on the art and antiques market.

For further assistance and advice on this please contact: Amanda Gray. 

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