Amendment proposed (this day): 11, in clause 35, page 20, line 40, leave out “an elephant” and insert

“a hippopotamus, elephant, killer whale, narwhal, sperm whale, or walrus.”—(Sue Hayman.)

This amendment would include in the definition of ivory all the ivory-bearing species listed in an Appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing the following:

Amendment 12, in clause 35, page 21, line 3, leave out from “subsection” to the end of line 5

This amendment would allow the Secretary of State to make regulations in the future that would include any ivory species, even if not listed in an appendix to CITES.

Clause stand part.

It is rather warm and humid in here—with humour as well, hopefully—so Members should feel free to take off their jackets. Members who have already spoken in the debate but wish to make comments on parts of the group that they did not address in their first speech are welcome to do so. If they wish to be called again, they should catch my eye by standing. I understand that Liz Twist was speaking before lunch, but she is not here. Would anyone else like to speak?

I feel that I have been slightly thrown into the middle here, because I was “slipped” for this morning and had not expected the Committee to have made such progress. Last week we took much oral evidence on broadening the definition of ivory beyond the tusk or tooth of an elephant to other ivory-bearing animals. It was disappointing that the consultation looked just at elephant ivory without the opportunity to consider narwhals, walruses or other animals. The hon. Member for Mid Derbyshire was particularly keen that mammoths should be included in the definition, although that would not come under a convention on international trade in endangered species definition, on the grounds that animals that are already extinct cannot be protected as endangered species. I suggest to the Minister that just because there was not a consultation on other species does not necessarily mean that they cannot be included in a definition.

We heard in evidence that the vast majority of trade is in elephant ivory. Exemptions for antiquities and precious items are nearly always concerned with elephant ivory; the new forms of ivory are very much secondary. There was a discussion about whether the Government would be subject to judicial review if a ban were to be implemented without consultation, and I will be interested to hear the Minister’s comments on that. My concern is that although the Bill makes provision to do things by statutory instrument, we will not have another ivory Bill for a long time. I therefore want reassurance that, if we are not to widen the definition in the Bill, those consultations and statutory instruments will be brought forward as soon as possible.

With regard to ivory-bearing animals mentioned in the CITES appendices, alongside African and Asian elephants in appendix I—those ranked as most severely under threat—are sperm whales, which are already under threat from ivory poaching. In 2013 the Spanish authorities seized 250 teeth, with a combined weight of 80 kg, which would have sold online for £1,000 each to be made into carved chess pieces. Appendix II includes narwhals, a single tusk of which can sell for up to $12,500. It has been reported that there are, on average, more than 200 trades in narwhal tusk every year. Although these species may not be at such an immediate and apparent threat of extinction as the elephant, they are at risk.

We mentioned this morning the knock-on effect of some bans. Does my hon. Friend agree that, if we have such a small Bill, focused only on elephants, the knock-on effect for other species not currently endangered could escalate their endangerment? There would be purely a knock-on effect for other species.

I entirely agree with my hon. Friend. We have heard that this is big business. There are organised criminal gangs involved in poaching ivory. We have seen in the past how they will move from one lucrative criminal activity to another. If the elephant trade is closed to them, which we hope it will be, they will move on and find new pastures.

I have mentioned a couple of species involved. Alongside those in appendix II there are also killer whales, hippos and certain types of dolphin. Appendix III includes the walruses. It is estimated that up to 3% of their global population are hunted and killed every year.

I want to make a final plea for the poor old warthog, which no one seems to care very much about—[Interruption.] Maybe it was discussed this morning. We have to look at why we are introducing an ivory ban. It is mostly presented as a conservation issue that threatens the survival of the elephant, which could be wiped from the face of the earth. We should look at it from the point of view that taking an animal’s teeth just for the purpose of ornamentation or to make money out of it has to be wrong, whether it is rare, precious and wonderful to look at, or an ugly old warthog, of which there are many running around. I argue that we should not hunt animals for ivory, whether they are endangered or not.

I will speak briefly to amendment 12, which I tabled following a suggestion from the hon. Member for North Dorset, who unfortunately is not in his place at the moment. He suggested that in clause 35(3) everything following the word “only” should be deleted, so that it would read:

“The regulations may amend subsection (1) so as to include ivory from an animal or species not for the time being covered by that subsection.”

That would allow us to look at non-CITES species, a point raised by a number of hon. Members, including the hon. Member for Mid Derbyshire. That would include mammoth, for example. There is obviously also the dear warthog. My hon. Friend the Member for Bristol East missed a treat this morning when the hon. Member for North Dorset threatened to sing a song about the warthog in order to draw attention to its plight. She might like to have a word in private, to ask if he could entertain her.

Amendment 11 seeks to extend the scope of the Bill. Amendment 12 would allow us to consider any animal that might be affected in future by displacement or removal of other species from poaching, for example. This is an important area to consider. I hope that the Government will consider it seriously, because it is a simple amendment that would attract cross-party support.

I will speak to amendments 11 and 12 and clause stand part. I warn colleagues that this will be a lengthy contribution, but that is fitting, given the contributions we have heard. I will take interventions, and I know that the hon. Member for Workington will wrap up with her final thoughts. She made a few detailed points about consultation, and the fact that she is an associate of the Consultation Institute and is taking guidance and advice from it. We would be happy to look into that. As a Minister, I need to take guidance from other sources within Government too, so there are often different views on these matters. We will of course look at that.

The hon. Member for Leeds North West spoke with passion and conviction about narwhals, and he made some good points. I will write to him with the details on imports. The hon. Member for Plymouth, Sutton and Devonport talked about the risk of judicial review. Perhaps he could hold that thought, because in the main body of my remarks I will talk about the biggest risk here, which is of the European Court of Human Rights challenging the provisions in the Bill. We can answer questions as we go. I thank hon. Members for their amendments and would like to acknowledge the significant degree of support, in the House and from conservation organisations, for extending the scope of the Bill to cover other species.

Clause 35 provides the definition of ivory applied in the Bill. Ivory is defined as the tusk or tooth of any species of elephant. Subsection (6) defines elephant as any animal or species that is within the family Elephantidae and that is extant—meaning living—at the time the Bill is passed.

My hon. Friend the Member for Witney questioned whether we should be looking at the chemical composition of ivory, so let us put that on the table as well, as we are all keen to understand the situation. The chemical composition of ivory cannot be used here, or indeed in the CITES or EU wildlife trade regulations, to assist in defining elephant ivory. That is because the chemical composition of all mammal teeth is broadly the same, so this is not a helpful method for distinguishing between species. Instead, a range of other approaches is used to distinguish elephant ivory from other species and other materials such as plastic, including physical characteristics and DNA testing. Therefore, chemical composition or any other practical means of testing ivory cannot be used as a legal definition for elephant ivory, either in the Bill or in international restrictions on ivory, with which it is important that we align.

Many will ask why back in October we consulted only on the sale of elephant ivory. We have moved quickly—not just in this Committee but before—but the short answer is that that is where the clear priority lay at the start. As we heard so clearly from the NGOs last week, their primary aim is to see a world-leading ban on elephant ivory sales enacted in the UK. That is where the Government have acted quickly in response. Also, the UK signed up to a resolution at the last CITES conference committing to close domestic elephant ivory markets. We therefore wanted to do what was necessary to get this legislation on to the statute book as soon as possible.

Elephant ivory is the most commonly found and traded form of ivory. Indeed, during initial consultations with NGOs it was stated that their primary focus was on banning the sale of elephant ivory as it forms the vast majority of the trade. Amendment 11 seeks to protect other endangered ivory-bearing species by extending the scope of the Bill to cover hippos, killer whales, narwhal, sperm whales and walrus. I stress that we share these concerns about other endangered ivory-bearing species and want to do all we can to protect them. Species such as the hippo and the narwhal—the unicorn of the sea—deserve as much protection as the elephant, and the poaching of such creatures for their ivory is equally abhorrent. However, I cannot say what proportion of the UK ivory market concerns non-elephant ivory, as we did not seek that information in our consultation—that consultation was narrower.

That is why the Bill includes, in clause 35, a power for the Secretary of State to lay regulations to widen its scope to cover other endangered ivory-bearing species, such as hippopotamus, narwhal and walrus. That power is broad, and it is not dependent on demonstrating that the banning of elephant ivory has caused the displacement of the market to other species. The hurdle is low.

Clause 35(3) states that regulations may be laid only in respect of ivory-bearing species listed on an appendix to CITES. That is an important qualification. A listing in one of the three appendices to CITES demonstrates that the animal or species requires a degree of protection from trade, for example through restrictions on the trade in that species. Currently, the listed ivory-bearing species to which that may apply are hippopotamus, walrus, killer whale, sperm whale and narwhal. Unfortunately for my hon. Friend the Member for North Dorset and the hon. Member for Bristol East, the Bill does not include walruses, but I will come to them in a second.

The Secretary of State may make such regulations at any time of his choosing. In practice, we would need to gather evidence of the impact of extending the scope of the ban before taking action. That is because—colleagues will forgive me for discussing technical legal procedures—we would have to assess whether there would be any interference in respect of those who possessed ivory items from other ivory-bearing species. That information would be required to assess whether any extension of the ban was compliant with the European convention on human rights. That is distinct from judicial review, which we talked about.

It would also be necessary to understand whether ivory items exist for which new exemptions may be required. For example, it would be important to clarify whether such items were directly or indirectly linked to ongoing poaching of these endangered species. It is critical to follow the high bar we set for the elephant ivory consultation and take time to ensure that we get the right regulations in place and that they work to achieve our objectives.

Subsection (4) requires regulations made under subsection (2) to be made by statutory instrument, to which the affirmative resolution procedure would apply. From the evidence we received through the consultation, we were able to assess the impact of a sales ban on individuals and businesses—most pertinently on their property rights. Analysis concluded that that impact would be proportionate and justified, and that the Bill is therefore compliant with the European convention on human rights. We seek that compliance to ensure that enforcement is appropriate. If we decided to extend the scope of the ban, we would want to ensure that any legislation was robust, defensible and enforceable. That would likely require us to conduct analysis focused on those who might be affected.

Amendment 12 would remove the reference to CITES from subsection (3), meaning that any ivory-bearing species could be added to regulations, regardless of whether it was endangered. A CITES listing means that an animal is endangered and therefore that its existence would be threatened by unregulated trade. Colleagues will recognise that the overriding purpose of the Bill is to conserve an endangered species: the elephant. Removing reference to CITES, and thus to the endangered status of an animal, would undermine the objective of the Bill.

I again refer to the European convention on human rights and the analysis—a “fair balance” review—that must be undertaken when considering any measure that might impact people’s human rights, which in this case, as I said, means their property rights. Generally, a fair balance exercise involves weighing the general public interest in a ban against the impact of a ban on private individuals and their businesses and property. The general interest argument for banning elephant ivory is as follows: elephants are an endangered species, elephants are killed for their ivory, and in order to protect elephants we must eliminate the ivory market by imposing a ban. The same argument cannot be made for warthogs because, however much we like them—they are my favourite animal—they are not an endangered species. In the absence of a general interest in banning warthog ivory, we cannot justify interfering with the property rights of owners of warthog ivory. Similarly, it is difficult to identify general interest grounds for banning the sale of ivory from mammoths, since mammoths are extinct as opposed to endangered.

Let us reflect on mammoths for a second. Members raised concerns about elephant ivory being presented as mammoth ivory, and about that fuelling demand for elephant ivory. As mammoths are extinct, they do not directly fit with the overriding purpose of protecting endangered species. However, robust enforcement will underpin the ban. It is possible to distinguish elephant ivory from mammoth ivory from the angle of Schreger lines, which are distinctive markings on the ivory. There are methods that those who seek to enforce the ban can use to distinguish between mammoth and elephant ivory. Steps are available to tackle concerns about mammoth ivory, and I can reassure the Committee that we will consider further possible steps.

Some people have argued that it is necessary to ban the sale of all forms of ivory in order to ensure that ivory has no value, thus protecting endangered species such as the elephant. To rely on that argument, we would need good evidence of the connection between the trade in non-elephant ivory and the killing of elephants. Some have argued that it is necessary to ban the sale of non-elephant ivory in order to address the risk that the displacement effect will cause other species to become endangered. Again, we would need good evidence of the connection between trade in non-elephant ivory and the killing of elephants.

I have discussed the need to establish a general interest for banning non-elephant ivory, but a general interest in itself is not enough. The general interest must be weighed against the impact of a ban on owners of, and dealers in, non-elephant ivory. At present, we do not have adequate evidence to judge that impact.

I also reassure colleagues that subsection (3) refers to species currently listed under CITES. In effect, this means that species listed under CITES at the time any regulations are laid will be covered. For instance, warthogs are not endangered and are therefore not listed on any CITES appendices—I have checked this meticulously. CITES does not even operate a watch list, but the International Union for the Conservation of Nature, which monitors the threat of species becoming endangered, classes warthogs, very sadly, as being “of least concern”, so they are nowhere near being endangered.

The Minister is being generous with his time, but I refer him to the point made by my hon. Friend the Member for Bristol East. It is important that we look at this issue through the prism of endangered species, but there is also a moral obligation. How much has that formed part of the thinking behind the Bill? We ought to be driving out poaching and the hunting of animals for the use of their body parts for culture and marketing because it is a moral imperative.

I completely understand that. I think we need to pause for a moment, though, to reflect on the fact that we are trying to make a real difference with elephant ivory. There are provisions for all other forms of ivory and I will take away the hon. Lady’s point, but it is worth reflecting on the evidence we had from the NGOs, which was that they like the ban, that it is meaningful that and it is going to make a difference. It will also set a standard for others to follow.

I am sure Opposition Members as well as the Government will reflect on these matters. We will do everything we can to make these provisions as wide-ranging and impactful as possible. As I hope I have described, we need to get through a balance test, and at the moment we do not have enough evidence to support a balance review taking place.

Should warthogs become endangered and listed under CITES, the Bill provides the ability to amend the regulations to reflect that. With my rather lengthy explanation, I hope I have addressed most of the points to be made regarding clause stand part. I say to my hon. Friends and Opposition Members that I am committed to considering whether steps can be taken to use the subsection (3) powers as soon as possible after commencement so that all statutory instruments and guidance to enforce the ban on elephant ivory are in place. However, I am happy to consider the evidence and data required for a balance review.

I thank the Minister. During the discussion on amendment 11 and extending the scope of the Bill, it appeared that the Government’s main concern was about further consultation and a potential judicial review.

The key point is that this is not about judicial review. I know I am getting a bit techy, but the key thing is that it would be a challenge under the European convention on human rights. To satisfy the requirements of the ECHR, we need to review whether we have looked not just at the general interest in the ban but in the rights of individuals, in particular to do with possessions, that are enshrined in the ECHR. That is why we have to do the balance test. What I am trying to get across to the Committee is that we need to ensure that we have the evidence—we want to gather it as quickly as possible—but there is still a requirement to do the balance test.

We have talked about how we could do the consultation quickly, and the Minister has made a commitment to talk to the Consultation Institute about that. As far as human rights go, according to the legal advice I have taken primary legislation can be challenged only on human rights and EU law grounds. I have been informed that in the case of human rights, the argument would have to rest on article 1 of protocol 1, on the “peaceful enjoyment” of property, but that is subject to a public interest caveat. On those grounds, we can justify the inclusion of other creatures—such as on the grounds of endangerment—in the same way as we can elephants. That is the legal information that I have received, so I put it on the record.

I thank the hon. Lady for setting out her view. At this point, I think we strongly agree with each other. On helping to get people familiar with the provisions, that is exactly what the Government say—it is an ECHR requirement, so it is about getting the fair balance review in place. We are perhaps using slightly different language about what we are trying to describe, but we are saying the same thing.

The legal advice I have been given is that that need not mean that we cannot extend the scope of the Bill and miss the conference deadline in October, which the Government are clearly keen to meet. I would be keen to look at how to extend the scope now, because that is what most people would prefer from the Bill at the beginning, rather than coming back to it through secondary legislation at a later date—we do not know when that would happen.

In response to points made during the debate, including by the Minister, I would say that the most important thing is to get the Bill absolutely right and to get it into legislation as quickly as possible. However, I do not think a conference date should be the ultimate deadline. We need to get the legislation correct regardless of whether that means we miss the conference deadline by a week or two—it is more important to get it right. A lot seems to be about the Government having the will to make the Bill the best they possibly can. We are in Committee to work with the Government, genuinely, to make a positive and helpful addition to what can be achieved though this groundbreaking piece of legislation.

I am disappointed that the Government are not prepared to consider amendment 12, because we know that non-CITES species are already being affected and are likely to be further affected by the displacement that we all agree will occur, or is likely to occur, once the ban on ivory comes into effect. We know that mislabelling as mammoth is used to confuse or misrepresent potential purchasers. The Minister talked about Schreger lines—I am not even sure of the spelling of that, and it is something I have learned during the debate. I had not heard of them, I would not know what they looked like and I do not think that the average punter would either, so I think it is important to understand more about what is happening with the use of mammoth.

Finally, I reinforce what my hon. Friends the Members for Bristol East and for Redcar said. We do not want to wait for an animal to become endangered before we step in and do something about its persecution. I ask the Minister to look again at amendment 12, but in the case of amendment 11, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 12, in clause 35, page 21, line 3, leave out from “subsection” to the end of line 5.— (Sue Hayman.)

This amendment would allow the Secretary of State to make regulations in the future that would include any ivory species, even if not listed in an appendix to CITES.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 8.

Question accordingly negatived.

Clause 35 ordered to stand part of the Bill.

Clauses 36 to 39 ordered to stand part of the Bill.

Clause 40