When the Ivory Act 2018 (the Act) comes into force, some museums and galleries will need to change how they operate.
When will the Ivory Act come into force?
The Act received royal assent a year ago. It was due to come into force this year, but Government’s been ‘mad busy’ and its collective mind has been on, err, other stuff. It hasn’t therefore got around to writing the regulations that will bring the Act into force.
Another reason for the delay is as a result of the judicial review case brought by Friends of Antique Cultural Treasures (FACT). Their claim was unsuccessful but leave to appeal was granted in November 2018. The Act will be further delayed, assuming FACT’s appeal is heard in spring next year.
What does the Ivory Act say?
It imposes an almost complete ban on trading in ivory objects. It will be a criminal offence to do so, save for some very limited exceptions. FACT sought permission to appeal on the ground of proportionality. They claim that the Act goes too far in denying owners of antique ivory their property rights.
The Act covers the sale and loan (other than to an accredited museum) of ivory inside and outside the UK or arranging the sale or loan in breach of the ban. It includes the offence of ‘facilitating’ a breach of the ban. This may extend to people who indirectly help to make it happen: including non-resident collectors, dealers, shippers, advisors, lawyers. Anyone in the UK who is involved in arranging a sale or private loan or advertisement of the same could be caught by the Act, even if the actual transaction takes place outside the UK.
Museums will need to be accredited to be exempt or another exception will need to be applied for and granted.
What are the exceptions?
There are five:
- Pre-1918 “Outstanding Valuable and Important” Exemption: ivory objects assessed by recognised specialists that are of ‘outstandingly high artistic, cultural or historical value’. These must be the rarest of their type so the threshold is expected to be high. The government anticipates that a very small number of objects will meet these criteria.
- Pre-1918 Portrait Miniatures Exemption: with less than 320cm² ivory content by surface area.
- Pre-1947 De Minimis Exemption: worked ivory objects produced before 1947 that contain less than 10% ivory by total volume and where the ivory is integral to the object (that is, the ivory cannot easily be removed without causing damage).
- Pre-1975 Musical Instruments Exemption produced before 1975 that contain less than 20% ivory by volume.
- Museum Exemption: Sales, loans and exchanges by individuals and companies to and between accredited museums. Sales, loans and exchanges to and from private museums that are not accredited by relevant institutions (for example ICOM or Arts Council England) will not be covered.
How to apply for the exceptions
The government has advised us that it is currently building an online registration system for exemptions 2 – 4 (inclusive). Guidance will be published in due course.
It is unclear how applications will be made for the Outstanding exemption. The government may choose a panel of specialists from accredited institutions who may make the decisions. Artefacts deemed to meet the criteria will receive exemption certificates. These will operate as passports allowing future dealing. There will be a registration fee to pay for each artefact.
The online registration system may be used for the De Minimis exemption. An explanation supporting the claim that each artefact falls within the exemption would need to be made and a fee paid.
Contact laura@counterculturellp.com if you want to obtain accreditation or need help with applying for one of the exemptions.