A view from the market: Will the Ivory Act work in practice?

In 2017 Art Law & More reported on the Government’s consultation on whether or not to roll out an outright ban on trading in worked ivory of all ages (see Government confronts the elephant in the room with ivory ban plan). Following the consultation, the Ivory Bill was introduced on 23 May 2018. The Government has reported that it “rapidly cleared Parliamentary processes, with support from across the House.” It is expected to come into force in late 2019.

The Government has stated that once commenced, the Act will:

  • Introduce a total ban on dealing in items containing elephant ivory, regardless of their age, within the UK, as well as export from or import to the UK.
  • Create a narrow and carefully defined set of exemptions (these include: items with less than 10% ivory by volume which have been made prior to 1947, musical instruments with less than 20% ivory content which have been made prior to 1975, portrait miniatures made before 1918, sales to and between accredited museums and items of “outstanding artistic, cultural or historic significance”, made prior to 1918).
  • Establish a new compliance system to allow owners to continue to trade in exempt items.
  • Introduce tough new penalties for those found guilty of breaching the ban, including fines and possible imprisonment.

However, the forthcoming law has been criticised by many in the art trade and described as “Kafka-esque” by Lord Inglewood, president of the British Art Market Federation. Art Law & More asked gallery owner, Guy Sainty of Stair Sainty Gallery, to give us his views on the new law. Mr Sainty does not trade in artworks with ivory content but has a strong opinion on this controversial issue and kindly sets out his view on the proposed ban below.

Guy Sainty

“The elephant is a magnificent animal whose fate matters; there are few people who would admit to welcoming its extinction. The UK, along with many other countries, has signed up to a world-wide ban on trading in ivory and ivory products; unfortunately, this has only inhibited but has not yet prevented the activities of poachers who cater to ivory buyers who are often based in the Far East. More recently the British rules on trading in ivory have been extended to include a ban on the sale of a majority of ivory products of whatever age, made from animals of the species Elephantidae, by the 2018 Ivory Act.

Did the UK government officials who drafted this act really consider its effects? Did they actually read the 70,000 plus submissions from the public and various interested bodies? Did they understand that Elephantidae also includes the Mammoth, whose last group became extinct 4000 years ago and most of whose remains are more than 50,000 years old? Yet Mammoth ivory discovered in the wastes of Siberia and the Arctic circle is what most recent Netsuke is made from. In my view, this law will effectively destroy an ancient art form, despite there being no danger to the Mammoth, which exists today only in our imaginations.

The original proposal was to ban the sale of elephant ivory worked after 1947, although the massive poaching of the elephant was of more recent origin. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), to which the UK is a signatory, and which came into force in 1975, relates to Asian (Elephas) and African (Loxodonta) elephant ivory taken post 1975 and 1976.  Under the new Act, the law has now been extended to anything made of or with any ivory content, with the exception of works of art created before 1918 of “outstanding artistic, cultural or historical importance”; pre-1918 portrait miniatures (which cannot have an area larger than 320 cm2); pre-1947 items of low ivory content (less than 10% of the content); and musical instruments (violin bows, harps, lyres and guitars and of course pianos) produced before 1975, provided the ivory is less than 20% of the total volume. All such excepted objects, instruments or works of art must be registered under the Act, an inevitably cumbersome and detailed procedure which one can foresee becoming unmanageable, as registration will inevitably have to be accompanied by an independent assessment as to whether the item meets the category for exception. Registration is supposed to happen online, but no-one has yet explained how an owner will be required to prove a work is exempted.  The ban does not include works of art traded between museums or sold to museums, but the negative effect this will have on value will unfairly advantage museums in the marketplace.

What should the owner of a fine ivory picture frame dating from the Victorian period do with it, or the owner of a collection that includes some medieval or byzantine ivories that are not considered to be of “outstanding artist, cultural or historical importance” but are nonetheless valuable and treasured works? What about those works inherited by a collector’s descendants and on which estate duty was paid? The value of these works will be wiped out since they cannot now be legally sold.

There is no provision for those whose property value is destroyed by the effects of this Act to receive any compensation, yet this is a purely arbitrary act of government which cannot be justified on the grounds of public interest, since banning the sale of a medieval ivory statue, for example, that does not meet the “outstanding” level, will have no effect at all on elephant survival. The First Protocol to the European Convention on Human Rights (1953), Article One, to Article 17 (2) of the Universal Declaration of Human Rights (promulgated in 1948 by the United Nations), and the British Human Rights Act of 1998, all forbid the arbitrary confiscation of private property, yet this will be the effect of the Act on a large quantity of ivory objects. The potentially burdensome registration requirements will discourage collectors who might have an interest in byzantine or medieval art, so even depressing the value of works that are exempted from the ban. This popular but ill-thought out law will inevitably give rise to claims for substantial compensation, so the government needs to be prepared for potentially costly legal proceedings.”


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