Ivory Act Guidance
On 18 May 2020, the Court of Appeal of England and Wales handed down a judgment in the judicial review appeal proceedings brought by a group of antique dealers and collectors (Friends of Antique Cultural Treasures Limited, or “FACT”) against the Ivory Act 2018 (the “Act”), which imposed one of the world’s toughest bans on the trade in elephant ivory. Despite the Court of Appeal endorsing the previous findings by the High Court that the Government’s impact assessment overestimated the success the Act would have in tackling the illicit ivory market, the Court dismissed FACT’s claim. At the end of July 2020, the Supreme Court of the United Kingdom rejected FACT’s appeal for permission to further appeal the decisions of the High Court and Court of Appeal dismissing its claim for judicial review of the Act. As a result, the Act is now expected to be brought into effect in summer 2021. Dealers and collectors who have not already put steps in place to mitigate the impact of the Act or to understand the complexities of its application and what this means internationally, must act now.
Both the High Court and the Court of Appeal were convinced that the impact on dealers and collectors was considerably understated in the Government’s impact assessment. Our own view is that the impact of this ban in fact stretches very widely across the art market and cultural industries. We have now received the draft guidance from DEFRA on the criteria for the “Outstanding Exemption” as part of its public consultation which closed on 4 May 2021. We set out below actions that dealers and collectors with ivory in their stock or collections can take now to mitigate the impact on their collections/business.
The draft guidance includes further clarifications on which items can qualify for “Outstandingly High Exemption” and measures for the implementation of a registration system.
“…the impact on dealers and
collectors was considerably understated in the
Government’s impact assessment.”
We understand the challenging climate our clients are currently facing, therefore we are providing practical steps for you to consider implementing. However, every situation is different and therefore this note does not constitute legal advice. The trade and cross-border movements of antique ivory are an immensely complex topic and given that violating such legislation carries criminal penalties, they should be carefully considered. If you are not familiar with these complex laws, you should seek the advice of specialists, particularly when considering the extra-territorial application of the Act and moving your collections abroad. We would be happy to discuss your individual situation further with you, please contact us at: email@example.com.
The first part of this note sets out the audit process recommended in order to determine which objects will be caught by the Act. The second and third parts outline the potential solutions for those objects a collector currently has in their home that they do not wish to move (but may still want the freedom to export for sale in the future), and for those dealers with ivory in their stock. The last part addresses the issues created by Brexit.
A. Step by Step Audit:
Step 1: Identify the objects that will be caught
The first step is to identify which objects in your stock will be caught by the Act. In order to do so, you should carry out condition checks or inspections to determine:
- whether the ivory is in fact elephant ivory (hippo ivory is not subject to the ban). If in doubt, you may want to assume it is elephant ivory and follow these steps until it can be determined; and
- consider whether any exemptions will apply. We recommend using something similar to the attached excel spreadsheet available here. Whilst you may decide to keep certain exempted objects in the UK, you will need to register the object (once the system is set up) prior to any sale (in the UK or outside). In view of this, you should gather the relevant documentation needed for registration, which is expected to be largely as set out in the draft guidance of the DEFRA public consultation. If you cannot demonstrate that the object meets the criteria, you may want to reconsider keeping it in the UK.
What are the exemptions?
- Portrait Miniatures Exemption: the object is a pre-1918 portrait miniature with a surface area of no more than 320 cm² (“surface area” of a portrait miniature does not include any part consisting of or covered by a frame).
- Low Ivory Content Exemption (de minimis)(i) the object is pre-1947, (ii) all the ivory in the object is integral to it, (iii) the volume of ivory in the object is less than 10% of the total volume of the material of which the object is made (ivory is “integral” to an object if it could not be removed from the object without difficulty or without damaging the object).
- Musical Instruments Exemption(i) the object is a pre-1975 musical instrument, (ii) the volume of ivory in the instrument is less than 20% of the total volume of the material of which the instrument is made. (“Musical Instrument” does not include anything that, although capable of being played as a musical instrument, was not made primarily for that purpose but does include a bow, plectrum or other thing made for playing a musical instrument).
- Outstandingly High Exemption: This is a high threshold and is subject to assessment by one of the few prescribed institutions for a fee of £250 per object. Factors taken into account include the rarity of the object and the extent to which the object is an important example of its type. This exemption was deliberately narrow, and the draft guidance is clear that DEFRA do not expect large numbers of objects to be submitted under this exemption for assessment.
Where necessary, engage experts for objects that are likely to fall within an exemption or are borderline and commission written evidence/opinion in support of this. Objects that qualify under s.2 of the Act can only be assessed by one of the prescribed institutions selected by APHA, however experts can still help to consider whether any of the draft criteria apply. In relation to the other exemptions, DEFRA has accepted that dealers with the relevant expertise, may be suitable experts to opine on the age of an object.
If you own a large collection, you may need to consider this Step 1 after your determination of whether the objects need an export licence (see “Step 2” below), or simultaneously. The audit of a large collection may require a significant amount of time, especially if experts need to be retained. Thus, and given the timeline outlined in Step 2 below, it is best for the audit of a large collection to prioritise the review of objects that need an export license.
Step 2: Identify anything in need of an export licence
The second step (subject to our note with regards to large collections above) is to check if any objects require an export licence to leave the UK. Given that the Arts Council is likely to face a backlog (as a result of the Ivory Act, Covid-19 and Brexit), those objects should be prioritized as it could take several months.
As a reminder, any object that meets the threshold for that type of object and qualifies as an object of cultural interest will require a licence and be referred to an expert advisor, but objects which have legally arrived in the UK within the last 50 years are usually not referred to the expert advisor. Everything else should in theory receive a licence within 15 days. Licence applications for objects that have been in the UK more than 50 years and may fall within the Waverley criteria will take much longer to deal with, as the Reviewing Committee will need to discuss at a meeting. It has been proposed that objects that meet the Waverley criteria will qualify for the Ivory Act’s s.2 “Outstanding Exemption” so a ban on export may confirm that the object in question can continue to be sold in the UK after the Act comes into force.
The majority of ivory objects also require a CITES export permit for export, in which case you will need to allow time for such applications to be reviewed. As a reminder, as the UK has now left the EU exports are “international” for CITES purposes. Exporters will therefore require CITES export permits from the Great Britain and a corresponding CITES import permit into the EU before you can move the object to the Northern Ireland or the rest of the EU.
Step 3. Deciding where to export: key questions
Of the objects which do not meet an exemption but are in the UK, you must consider which you are willing to move and where. In particular, you should consider:
- Whether or not these objects should (or need to) stay in the EU (you will still need to comply with CITES and European Union Council Regulation (EC) no 338/97 on the protection of species of wild fauna and flora by regulating trade herein, as amended, and other applicable European Union legislative instruments);
- Whether the objects will require immunity from seizure in a particular country in future (for example, if the object is likely to be exhibited in a public museum, that country should not become the object’s permanent home as immunity is usually only granted to temporary imports). This is most likely to catch objects where you have provenance gaps;
- The tax status (bond/Freeport/free circulation);
- Whether the object can leave the EU under CITES and whether it could be brought back in again;
- What you intend to do with the object in the future;
- Whether there are any other restrictions on import into a particular country (such as national treasures, treaties with the country of origin, etc.);
- Whether you have storage facilities in that country and whether you can easily travel there (or have a representative who can work on your behalf). This is key as you cannot negotiate sales of ivory objects from the UK (even if the object is outside the UK). See sections A and C below.
- You should also consider whether the object will be restricted under the new draft Regulation on ivory sales in the EU, a final version of which is expected late in 2021, but a draft of which can be found here.
B. The problem of extra-territorial application: how to ensure you do not inadvertently violate the Ivory Act
The Ivory Act prohibits and creates a criminal offence in dealing in ivory or arranging to do the same. Dealing includes selling, buying, hiring, offering or arranging to sell, buy or hire and keeping ivory with the intention to sell or hire. The ban on trade in the Act expressly includes arranging to sell or hire even when the sale/loan takes place outside of the UK, but expressly excludes purchasing outside the UK. The Ivory Act has a wide application and will apply to anyone within the UK, even non-residents who are simply visiting the UK temporarily. This would therefore include collectors, shippers, art advisors, lawyers, art dealers and anyone involved in the arrangement or facilitation of a sale, loan or advertisement even if the actual transaction takes place outside the UK.
Ultimately this means that collectors and dealers can continue to buy ivory objects outside the UK (provided it is legal to do so in the country of acquisition) and will be permitted to import them into the UK provided the objects comply with CITES (although not for the purposes of onward sale). However once an ivory object is in the UK, it cannot be kept or exported for sale later down the line.
Current position: It is illegal to sell unworked ivory in the UK. A limited number of post-1947 worked ivory specimens can be traded but these require certificates which are increasingly difficult to obtain. Pre-1947 worked ivory can currently be sold in the EU without a licence, but the new draft Regulation proposed in the EU strengthens the requirement to demonstrate the pre-1947 date.
Difficulties with the “arranging” element
The Ivory Act specifically prohibits arranging or offering to sell or loan (other than to an accredited public museum) an ivory object that is outside of the UK and where the act of arranging takes place within the UK, although arranging to buy outside the UK is permitted. The effect of this restriction is wide and could cover all forms of communication such as:
- Discussing a potential transaction whilst one party is in the UK;
- Sending details of an object that is outside the UK for sale;
- Discussing commercial terms of a potential sale;
- Sending emails about a sale whilst in the UK;
- Arranging to consign an object to auction or a gallery outside of the UK.
The restriction would also extend to those facilitating a transaction such as shippers, lawyers and art advisors if they assist from the UK. They will be permitted to assist when they are outside the UK (provided all arrangements are also outside the UK) but this is essentially unworkable as even responding to an email or phone call, or having an internal discussion once back in the UK could be deemed arranging from the UK. This is going to be particularly problematic for individuals and dealers based in the UK even if they regularly operate outside of the country.
Penalties and exclusions
The Act includes criminal penalties for violation of the restrictions, with the potential for conviction of up to 5 years.
Whilst the Act prevents dealing, which is commercial in nature, gifts, donations and inheritance are not restricted. Loans for hire are caught by the Act, but provided there is no financial benefit, a physical loan of the object is unlikely to be caught as it should not be considered “dealing”.
C. Potential solutions for collectors
We acknowledge that there may be some collectors who have objects in the UK that they want to continue to enjoy in their homes, but may one day wish to sell. Export of these objects would be a last resort for these collectors. However, depending on how these objects are owned (individually, through a corporate entity, or through a trust) and kept in the UK, it may be that treatment of some objects are unlikely to fall foul of the ban as they do not fall within the definition of “dealing”. We would be happy to explore if there are objects in your collection that might be able to remain in the UK.
There are limited options for dealers and most will need to move their stock as it will be very difficult for a dealer to argue their stock is not “held for sale”.
D. Potential solutions for dealers
However, given the wide extra-territorial application of the ban, many actions you carry out from the UK, could still violate the Act, even if the object is outside the UK. This poses additional challenges as if you have moved stock outside of the UK and hope to sell it from there, you must put procedures in place so that the “arranging” of such sales also takes place outside the UK.
The issues to consider include:
- Communication with clients about the object, whilst you or they are in the UK (even taking a phone call to negotiate the terms for sale of a piece in France, for instance, would be “arranged” whilst you are in the UK);
- Advertising objects for sale on your website which is accessible to buyers in the UK, even if the object is not in the UK;
- Making arrangements for your stand at a fair outside the UK (whilst you are in the UK), where your inventory will include ivory objects and discussing those objects (preparing photography, catalogues and materials to the fair inspectors);
- Sending details of an object (located outside of the UK) to a prospective client, whilst you are in the UK;
- Discussing a sale with a colleague who is based outside of the UK, whilst you are in the UK.
Administrative processes are unlikely to constitute “arranging” but there are plenty of tasks that are second nature to a dealer, that they will either need to fully delegate to a colleague or representative outside the UK, or that they will need to restrict to carrying out when they are outside the UK.
Should dealers and collectors be intending to complete sales of object containing ivory prior to the Act coming into force, they must be aware of the impact of leaving any sale or post-sale tasks to the last minute. For example, if a transaction involves a dealer and a consumer and is concluded at a distance, less than 2 weeks before the Act comes into force, the parties may find themselves in a difficult situation should the consumer wish to return the item within the 14 day returns period. Depending on the circumstances of the sale, a refund of an object may well fall within the definition of “dealing” making the return of the object illegal under the Act and attract penalties. Post-transaction tasks may also qualify as dealing, including export for onward sale. Therefore, as soon as the date for the Act’s entry into force is confirmed, we recommend concluding all transactions in objects containing ivory well in advance of that date.
If objects containing ivory are a significant part of your business, or you intend to move ivory stock out of the UK for future sale, we would be happy to help you produce processes and training for you and your team to ensure you do not violate the wide reaching ban.
E. The impact of Brexit
Please see the Government’s announcement on CITES listed materials: here. The UK has now effectively become a “third” country and no longer benefits from the less onerous European regime related to the trade and movement of objects containing CITES materials. Dealers now require a UK CITES export permit and a corresponding CITES import permit in the destination country, which could take several weeks. Import tax is also now payable, the rate of which varies across EU Memeber States.
Post Brexit, the UK is only allowing ivory objects to move through designated ports. A list is available here.
CONSTANTINE CANNON LLP
Updated May 2021