On 9 March 2021, the Department for Environment, Food & Rural Affairs (“DEFRA”) released a long-awaited consultation on the implementation of the Ivory Act 2018 (the “Act”). After the Act received Royal Assent in December 2018, stakeholders have been awaiting further clarifications on how the exemptions under the Act will operate in practice, including the guidance on how objects under the section 2 “outstanding” exemption (also now known as the “rare and important” exemption) will be assessed. In the two years since the Act received Royal Assent, we represented a group of antique dealers and collectors before the English courts challenging the impact of the Act on cultural, historic and artistic antique objects (read our most recent blog article on this topic here) but despite the many discussions in the legal proceedings about the arbitrary nature of the exemptions, only now has DEFRA released some guidance as to the types of objects that will be exempt under s.2.
Responding to the Consultation
DEFRA has invited stakeholders to submit their views on proposed guidance for the exemptions, and a series of questions related to the implementation of the Act, which can be found here: https://consult.defra.gov.uk/communications/implementing-the-ivory-act/supporting_documents/implementingtheivoryactconsultation.pdf. We strongly encourage any collector, dealer or other party affected by the Act to submit carefully crafted responses before the deadline of 4 May 2021. This is the last chance to have a say on the proposed implementation measures. Submissions should include evidence wherever possible and should set out alternative proposals or solutions to be considered. This is an opportunity for dealers and collectors to come together one final time on this issue, and seek to encourage the Government to implement effective, workable measures that clamp down on illegal ivory but protect significant cultural, historic and artistic objects by allowing their trade to continue under the s.2 exemption. It is vital that if a proposal in the consultation is unworkable in practice, or if a consideration or criteria for assessment is missing, dealers and collectors highlight this in their consultation responses.
The Ivory Act will come into force after responses to the consultation have been considered and published, which means we expect the Act to be in force by the summer 2021. This leaves only a few months for those who have not already mitigated the impact of the Act, to take action (see more details on recommended next steps below).
1. Proposed Requirements to Register an Exempt Object
As a reminder, the Act prohibits and creates a criminal offence in dealing in ivory or arranging to do the same. Dealing includes a range of activities such as selling, buying, hiring, offering or arranging to sell, buy or hire and keeping ivory with the intention to sell or hire, and encompasses certain extra-territorial activities (see our guidance for more details). The prohibition is subject to certain exemptions, including certain (i) pre-1918 portrait miniatures, (ii) pre-1975 musical instruments, (iii) pre-1947 objects with a low ivory content or (iv) pre-1918 objects of outstandingly high artistic, cultural or historical value.
An owner who intends to deal in objects falling under one of the first three exemptions will need to register such objects in advance. The consultation paper contemplates the creation of an online registration system where owners or their agents will be able to register their objects and upload the required documentation. Registration will require the payment of a fee, which DEFRA has proposed to set at £20 per object for individual objects registrations and £50 for a group of between three and twenty objects.
Owners’ registration obligations do not stop there. A new registration is required each time an exempted object changes ownership and further dealing of the object is planned.
DEFRA is also seeking views on how to assess the age, volume and surface area for the purpose of the exemptions. With regards to the assessment of age, the proposal states that the age could be verified by antiques specialists and dealers with the relevant expertise or qualifications, which is welcome and appropriately recognises the level of expertise of the antiques trade. Scientific testing, such as radiocarbon dating, would also be accepted as a method to assess an object’s age, but would not be mandatory.
2. Outstanding/Rare and Most Important Exemption
The exemption applying to pre-1918 objects of outstandingly high artistic, cultural or historical value is the most controversial. This exemption could mistakenly be confused with a broad category encompassing all the objects which do not qualify under other exemptions, or which applies to any objects of cultural, artistic or historical significance. However, it is deliberately narrow.
For objects under the s.2 exemption, owners will be required to apply using the same registration process as for other exemptions. The applicant will be required to declare that the object meets the conditions of the exemption and explain why (providing evidence wherever possible). However, before an exemption certificate is delivered, the application will be referred to a ‘prescribed institution’ by APHA. Prescribed Institutions are a small number of museums with the necessary expertise to carry out the assessment of an object, such as the Ashmolean, the British Museum or the Victoria & Albert Museum. The full list is set out here. Under the s.2 exemption, the object will need to be assessed by one of the prescribed institutions, who shall be chosen by APHA, but we do not yet know details about timescales. Regrettably, whilst antiques dealers are recognised for their expertise in assessing the age of an object, they are not included in the list of prescribed institutions who are considered suitably qualified to assess whether an object meets the criteria as “rare or most important”.
In its consultation paper, at paragraph 4.5, DEFRA expands on the criteria for assessment set out in the Act. Such criteria includes whether the object was a significant part of a notable collection, whether it has a noteworthy provenance or a significant historical context, or whether it is significant because of its close association with a specific place or region. For ease, we’ve listed the proposed criteria below. Although such criteria can be interpreted broadly, it is clear by considering the wording used to interpret “rare and important” that DEFRA only intends a very small number of objects to benefit from this exemption. To further deter collectors and dealers who may be considering submitting multiple objects, DEFRA proposes the usual £20 registration fee, together with a £230 fee in consideration for the reasonable costs incurred by the prescribed institution in providing expert advice. £250 per object may be prohibitively expensive for objects which are unlikely to meet the criteria for this exemption.
One of the few positives in the proposed guidance for collectors and dealers, is that the “exemption certificates” under s.2 will remain despite a change of ownership, so the process does not need to be repeated each time the object changes hands. However, a new registration will be needed if the information is found to be inaccurate or incomplete.
Taking Action to Protect Your Collection
Responding to the consultation is key. However, there is only so much that DEFRA is likely to amend in the proposals and so preparation as to how to treat your collection is also a priority. Collectors and dealers are running out of time. The consultation closes on 4th May 2021 and the Act is expected to come into force in the summer 2021. This looming deadline combined with the cross-border frictions created by Brexit and to some extent, Covid-19 means those with affected objects must immediately act to mitigate the impact and decide what to do with their collection or stock. As we explained in our guidance on the restrictions imposed by the Act, the consequences are wide-ranging and may go further than one would first expect. If you have not already done so, take a look at our guidance on the wide application of the Act, to consider the types of activities that are caught – even actions related to objects outside the UK might be caught, if you carry them out whilst you are in the UK.
As a first step, we would recommend carrying out an audit to determine which objects will be caught by the Act. Now the proposed guidance on the exemptions has been released, this audit can be carried out quite accurately. The audit is explained in more detail here, and summarised below:
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, as opposed to other types of; and
- consider whether any exemptions will apply. 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. The proposed guidance in the consultation now provides further detail as to what this will entail. If you cannot demonstrate that the object meets the criteria, you may want to reconsider keeping it in the UK.
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 exempt under the first three exemptions mentioned above can be assessed by dealers with the relevant experience and expertise. However, as objects that qualify under s.2 of the Act can only be assessed by one of the prescribed institutions selected by APHA, experts can only help to consider whether any of the draft criteria apply, but this is still an important step in whether to apply to APHA for an exemption, as if the criteria do not apply, this could risk the object being stuck in the UK, and a waste of £250.
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 licence.
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. Additionally, and 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 Great Britain and a corresponding CITES import permit into the EU before they can move the object to 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.
You should consider whether or not these objects should be moved to the EU, in which case 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 including 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. In a nutshell, the draft Regulation proposes a further tightening of the rules applicable to the commercial trade in and re-export/import of ivory (including antique ivory) into and out of the EU. Certain worked antique objects dated prior to 1947 may still be traded in the EU, provided they are accompanied by a certificate. Rather than banning trade outright, the EU has instead tightened the trade to ensure that only genuine antique objects obtain a certificate. That being said, dealers and collectors who plan to relocate their stock to the EU should take action urgently. Once the UK Act comes into force export for sale will be prohibited. In addition, once the new EU Regulation is enacted, import into the EU for sale will be prohibited. We do not yet know which of the two laws will come into force first, but both will prevent a collector or dealer from moving its collection from the UK to the EU for sale. For more detail on the proposed new measures in the EU, see our previous blog.
It is also important when choosing which EU country to move your objects to, that you consider whether there are any other restrictions on import into that particular country and in future, whether the object can leave that particular country; whether the objects will require immunity from seizure in a particular country in future; the tax status (bond/Freeport/free circulation), what you intend to do with the object in the future, etc.
If you require assistance on navigating the new restrictions imposed by the Act and would like to discuss how they may affect you, please contact Fionnuala Rogers on frogers@constantinecannon.co.uk or Simon Yeung at syeung@constantinecannon.co.uk.
By Fionnuala Rogers and Emelyne Peticca