Consultation outcome

Additional enforcement requirements to the Ivory Act 2018: summary of responses and government response

Updated 6 December 2021

Overview

Introduction

This document provides a summary of responses to Defra’s consultation on the enforcement of the Ivory Act 2018 (the “Act”) and guidance on the use of civil sanctions. The consultation ran from 23 August 2021 to 19 September 2021. This document also sets out the government’s response to the consultation.

Scope of the consultation

The consultation set out proposals for the operation of the sanctions regime prior to bringing the Act fully into force. The consultation also asked for comments on the draft statutory guidance on the use of civil sanctions prior to issuing the guidance.

As noted in the consultation document, this consultation was conducted on a UK-wide basis. Where powers are to be exercised by the appropriate national authority in the devolved administrations, Defra consulted on their behalf with their agreement. This is accordingly an agreed UK-wide response.

Overview of respondents

The consultation received 20 responses. 12 responses were by, or on behalf of, organisations, and 8 responses were from individuals.

The low number of responses was anticipated given the technical and specialist nature of the consultation and likelihood of being of interest to a niche group of stakeholders. The majority of respondents submitted their substantive comments under questions 1 and/or 5 on the consultation and did not comment on the other questions.

Organisations included those involved in the antiques trade, musicians and non-governmental organisations (NGOs) focussed on wildlife and conservation. Individuals included some with interests in sectors related to the trade in ivory, such as antiques and musical instruments, and some who expressed concerns about the ivory trade and its impact on wildlife and conservation. Responses for those respondents who asked for their information to be treated confidentially have not been discussed in this paper, but they have been considered as part of the process to inform government policy.

Annex A provides a list of all organisations that responded.

Responses and government response by question

We welcome the comments from respondents to this consultation. The majority of respondents agreed overall with the proposed approach to these additional policies and guidance. We have responded to each of the comments made in turn, and where we intend to make changes to either the proposed regulations or guidance we have made it clear how we will address these.

General comments and out of scope comments

We received a number of comments or suggestions which were out of scope of this consultation; some related to enforcement, and others related to the government policy on ivory. These comments have been noted here for completeness.

A number of comments were received by respondents who disagreed with the fundamental principle of the Act or certain aspects of it. For example, one respondent raised a point on the loss of value of items containing ivory that were made prior to 1918 and fall outside of any of the exemptions under the Act. The introduction of new exemption categories or extending the existing exemptions is out of scope of this consultation. The Act establishes 4 carefully selected standard exemptions and an exemption for the most rare, historically or culturally important items. We do not believe that such items contribute directly or indirectly to the continued poaching of elephants.

The government response to the consultation on implementing the Ivory Act 2018 has been published and covers the commencement of the Act, including the prohibition on dealing ivory; fees; implementing the standard exemptions; and implementing the exemption for outstandingly artistically, culturally or historically valuable and important pre-1918 items (rare and most important items). These aspects are therefore not addressed under this consultation response.

In some cases, there was a general misunderstanding of the ivory ban, and to clarify, the Act provides for both civil sanctions and criminal prosecution for breaches incurred under the Act. The guidance primarily covers civil sanctions but includes those circumstances where criminal prosecution may be appropriate.

The civil sanctions prescribed in the Act (monetary penalties, stop notices and enforcement undertakings) are established under the Act itself. The upper limit of £250,000 for a monetary penalty is also established under the Act. These aspects were out of scope of this consultation, therefore any comments raised in relation to them have not been addressed as part of this consultation response.

In addition to the statutory guidance on civil sanctions that will be published, there will also be comprehensive administrative guidance online to help those intending to deal legally in exempted ivory items. The guidance will, in particular, cover the requirements and process for registering items or application for an exemption certificate; circumstances when a registration or exemption certificate will be required and the applicable fees. There will be a period between the opening of the registrations and applications for exemption certificates and the ban coming into force. There will also be provision for a period of 28 days to allow completion of contracts which are still in the course of performance when the prohibition comes into force. See the responses to Questions 2 and 5 which cover the period in more detail.

Question 1

Do you agree with our proposed approach to the application of civil sanctions and enforcement cost recovery notices? A) Yes/No. B) If no, please state your reasons.

Nineteen respondents answered this question. Of those, 6 responded “yes” and 13 responded “no”. Seven of the 13 respondents who answered “no” did agree with the overall approach.

Of the 7 respondents who answered “no” there was only one issue that they disagreed with, and the responses were almost identical. This issue related to a late monetary penalty and the proposed policy of not charging interest or imposing a financial penalty for late payment of the penalty. Respondents noted that the Act contains provision for a monetary penalty to be recovered as a civil debt and interest may be charged on a civil debt, so therefore they considered it appropriate that interest should also be charged on the original monetary penalty. It was also noted that the Act contains provision for penalties to be applied for a late payment, and if a “discount” (payment to discharge liability for the monetary penalty) was being offered for early payment, it was appropriate there should be interest applied to late payments.

Comments received under Question 1 and Question 5 regarding the use of enforcement cost recovery notices have been addressed under Question 1. Seven respondents disagreed with the policy of not using enforcement cost recovery notices. Of those 7 respondents, 5 asked about the rationale for not using them and “what might cause that policy to change”.

Government response

In establishing the civil sanctions regime for the Act, we carefully considered the proportionality of the use of civil sanctions. For monetary penalties, there are 3 key factors that must be satisfied for the Secretary of State to consider whether a monetary penalty is the appropriate response:

• the Secretary of State is satisfied beyond reasonable doubt that the person has committed a relevant offence under the Act
• that this is a proportionate response to the relevant offence, and
• that the amount of the proposed penalty appropriately reflects the amount of financial benefit arising as a result of the offence

Monetary penalties may be considered an appropriate sanction in particular where there is financial gain from the illegal dealing of ivory items. We have carefully considered the use of applying interest and further financial penalties for late payment of a monetary penalty. Both of these options would increase the amount of the penalty.

One of the main considerations when setting a monetary penalty is that it is a proportionate response, and the level of penalty is clearly and consistently related to the impact of the case and the value of the offending. Where interest is to be added or a further financial penalty for a late payment is issued, this increases the amount of the overall penalty meaning it may no longer meet these criteria. We consider that setting the monetary penalty at the correct level at the outset and using the civil debt route to recover an unpaid monetary penalty is both fair and proportionate. See also the response to Question 5 in relation to monetary penalties.

The enforcement cost recovery notices are not a civil sanction in themselves. They are a means for recovering costs incurred up to the time that the penalty is imposed, for example laboratory or forensic testing, associated with an investigation. The costs may only be recovered where the outcome of that investigation is the imposition of a civil sanction. For ivory enforcement, it is not clear (at present) what proportion of investigations will result in the imposition of sanctions.

We estimated the costs for introducing a system and running a process to monitor costs and recover them, and our assessment concluded that the likely costs of implementing and enforcing cost recovery measures would be disproportionate to the extent that the enforcement cost recovery notices might be required and the amount of monies that might be recovered. It should be noted that the costs of enforcement after the civil sanction has been imposed would be recoverable through an application to court and would normally be applied for at the same time as an application for recovery of a civil penalty.

We plan to keep this policy under review by monitoring the level of monetary penalties and stop notices issued. Should the initial assessment prove to be an underestimate of the costs incurred, we will reconsider the use of using enforcement cost recovery notices.

Question 2

Do you agree with our proposed approach to further grounds for appeal? A) Yes/No. B) If no, please state your reasons.

Nineteen respondents answered this question. Of those, 18 responded “yes” and 1 responded “no”.

The majority of respondents did not provide comments for the way they answered this question. One respondent noted a general concern for smaller businesses which may not have the capacity to absorb the requirements of the Act and adapt their services accordingly.

Government response

We welcome the broad support for the approach to further grounds for appeal and recognise that all businesses and individuals need time to adjust to the requirements of the Act. We have therefore allowed for a period between opening registrations and the ban coming into force, with a further period of 28 days for transactions to complete which were begun before the date that the ban is fully in force. There will also be guidance available for all users. This is covered also under the response to Question 5.

Question 3

If you identify a further ground for appeal that does not already fall within the other grounds included in the Act, we would welcome a detailed description of this ground and an explanation as to why it would not fall under one of the grounds already included.

There was one substantive comment made in response to this question, and the respondent asked for this to remain confidential.

Government response

Not applicable.

Question 4

Do you agree with our proposed approach to supplementary regulations in respect of appeals against certain decisions relating to civil sanctions? A) Yes/No. B) If no, please state your reasons.

A total of 18 responses were received, of which all 18 agreed with the proposed approach to supplementary regulations. No substantive comments were received in response to this question.

Government response

We welcome the support from the broad range of respondents.

Question 5

If you have any comments about the statutory guidance at Annex A in relation to either its factual accuracy, clarity or intelligibility, we would welcome a detailed description. Please indicate the paragraph and page reference where applicable.

A total of 11 out of 20 respondents provided substantive comments in response to this question. Some of the comments were directly relevant to the statutory guidance and approach to civil sanctions, and others were more general and have been covered elsewhere in this response.

There were some general points made which are addressed here first. One respondent commented about the complexity of the enforcement regime and potential legal costs for individuals and businesses in order for them to understand the requirements and remain compliant.

Government response

There will be administrative guidance available. As noted in the government response to the consultation on implementing the Ivory Act 2018, there will be a period between the opening of the registrations and certification process and the ban coming into force, which means that no one will be issued with civil sanctions or be prosecuted under the Act during this time for dealing in ivory items. There will also be provision for a period of 28 days (beginning with the date that the prohibition comes into force) to allow completion of contracts which are still in the course of performance on that date, which means that it will not be an offence under the Act for these specific dealings to be completed during that 28-day period. Once the 28-day period comes to an end, all ivory dealings will fall in scope of the ban, including any transactions which are still in the course of performance at that time. These transactions will need to obtain a registration number or exemption certificate in order to comply with the ban. Furthermore, there will be an awareness raising campaign which will include information about the implementation of the ban, the exemptions, and how individuals and businesses can ensure they comply with the law.

When issuing civil sanctions, the Secretary of State will provide clear instructions and contact information should individuals need further support.

For those appealing to the First-tier Tribunal against a civil sanction or to appeal other actions relating to a civil sanction, the appeal process is free to the appellant, removing the burden of legal costs, although individuals can choose to have legal representation at their own cost.

Comments received relating to the statutory guidance on enforcement

The remainder of this section covers the responses which have been grouped into relevant headings by the section and paragraph of the statutory guidance to which they relate.

Section 1 - Introduction

Paragraph 1.7 – Introduction:

Two respondents commented on the use of advisory letters and a request for clarity on minor breaches, record retention and their consideration of future offending.

Government response

Where a minor breach is found that can be easily rectified, advice may be given either orally or in writing, reminding the person of the need to obey the law without prejudice to civil sanctions or criminal proceedings. We will revise paragraph 1.7 adding a new final sentence as follows:

‘Where the advice is provided in writing, this will be issued as an advisory letter. Advice, given orally or in writing relating, to a minor breach will be retained as an official record (in accordance with data protection requirements) as evidence of a person’s compliance history’.

Paragraphs 1.8 and 5.15 - Introduction and calculation of a monetary penalty:

A couple of respondents asked for 2 further factors to be considered for the purposes of determining the type of civil sanction imposed and to ensure it is both fair and proportionate.

1. “Whether a breach represents an administrative error in respect of an otherwise compliant item, in contrast to dealing in an item which is not capable of meeting the exemption criteria”; and
2. “Whether a person is private party in contrast to a professional party in a transaction”.

Government response

The guidance already refers to intention to deceive as a factor for consideration of an offence, and this would cover whether an offence was an administrative error or clear intent to avoid compliance with the Act. On the point of a person’s status as a private individual or professional party, the Secretary of State will take all factors into account, including whether it was an individual or corporate offence, as part of their decision-making process.

Paragraph 1.9 – Introduction:

Suggestions were made from a number of respondents that the factors exacerbating the seriousness of the offence should also include offences involving international import or export.

Government response

We have carefully considered this proposal and since the Act specifically includes exporting from and importing to the UK in the definition of ‘dealing’ we agree that this should be added to the factors that could exacerbate the seriousness of an offence. The additional factor ‘geographical extent of the offence’ will be added to the guidance.

Paragraph 1.10 – Introduction:

A number of respondents considered that the factors for consideration of less serious offending should be qualified as follows:

• a one-off offence – “unless it involves a high value ivory item”
• a low-value offence – “unless it involves high volumes of ivory”
• reliance on professional advice – “provided there is no conflict of interest on the part of the professional”
• a private individual – “unless it involves multiple or repeat offences”

Government response

The factors listed under 1.10 are those which might be associated with less serious offending but are not limited to those factors outlined in the guidance. The Secretary of State will take all relevant factors into account when considering an offence and the appropriate action to take.

We have carefully considered the proposals made and consider that the factors listed under 1.9 already address the comments from respondents, with the exception that, for transparency, we intend to revise the ‘large scale offending’ to read ‘large scale offending (including value, volume and frequency)’.

Additionally, under paragraph 1.12, we will add ‘Where an offence involves a person’s reliance on 3rd party advice, we will consider the culpability of the person and the 3rd party advisor’.

Paragraph 1.11 – Introduction:

Several respondents considered that “the ‘victim’ of an illegal ivory sale under the Act [would] rarely be the seller or the buyer”. They added that “it is elephant populations as a whole who will [be] affected by the breach” and that to consider the person(s) who might have been affected by the breach was “a slightly odd concept given the purpose of the Act, which is to protect elephants”. They also noted that “assessing who has been affected by a breach and the harm that the particular transaction might have caused are not appropriate… and could lead to unnecessary arguments from potential offenders about who has actually been affected (or not) by a transaction or the scale of the particular harm”.

Government response

We disagree with the assertion that assessing ‘who’ has been affected by a breach and the harm that the particular transaction might have caused are not appropriate under this Act. An investigation into a potential breach of the Act will aim to determine the extent of wrong-doing and the culpability of the person(s) involved, so that the Secretary of State can be satisfied beyond reasonable doubt of the offence. In cases where another person has been deceived, this may aggravate the seriousness of the offence. For example, this could be where a person has been deliberately deceived, which could involve significant financial loss for an individual or business, or impact on their reputation. In such cases, if civil penalties are not appropriate, criminal sanctions will be available.

Paragraph 1.14 – Introduction:

A number of similar comments were made that the list of factors that may be considered in determining whether criminal proceedings are appropriate should be “a non-exhaustive list” and not “limited to the three stated factors” with “no scope for other factors to be taken into account”.

Government response

Paragraph 1.14 sets out the criteria for the Secretary of State’s consideration of a criminal prosecution of an offence under the Act. The criteria listed in the guidance are very broad and open to interpretation by the Secretary of State depending on the nature of the offence. The Crown Prosecution Service, and not the Secretary of State, will ultimately decide whether the offence meets the threshold and public interest factor for prosecution. The purpose of having both civil sanctions and criminal prosecution is to ensure that breaches of the Act are dealt with in a proportionate way, enabling escalating enforcement action to secure compliance, with consideration being given to selecting actions that are in the public interest and act as a deterrent to the offender and others.

To clarify section 1.14 we propose to amend the opening sentence to say ‘In addition to the factors under 1.9, the factors that may be considered in determining whether criminal proceedings are appropriate are below. This list is not intended to be exhaustive and other relevant factors will be taken into account in making decisions about the appropriate penalty’.

Paragraph 1.16 – Introduction:

Several respondents noted that failure to comply with an enforcement undertaking should be considered as a criminal offence.

Government response

We agree that when considering a criminal prosecution, it is relevant to consider an enforcement undertaking that has not been complied with or partially complied. However, we do not think that it is necessary to amend the list of factors since the second bullet point sufficiently covers this scenario, namely, ‘Criminal proceedings may be initiated: where other enforcement actions have failed to secure compliance’. In any case, the list of factors is not exhaustive and does not prevent other relevant matters also being taken into account in decision making. See also the response to Paragraph 4.5.

Paragraph 1.19 – Introduction:

Clarification was sought on the status of an advisory warning.

Government response

In response to requests for further advice on the status of an advisory warning, we propose to add clarity to the guidance under 1.7: ‘Advice may be the appropriate action where the breach resulted from an administrative error on a single occasion’.

Section 2 – Use of civil enforcement actions

Paragraph 2.3 – Use of civil enforcement actions:

A number of respondents commented on the proposal for not using enforcement cost recovery notices. This has been covered under Question 1.

Section 3 – Enforcement undertakings

Paragraph 3.4 and 3.5 – Enforcement undertakings:

A couple of respondents asked for further explanation as to why an enforcement undertaking would be more acceptable where the person reversed the transaction. They noted that certain items may be capable of meeting the exemptions under the Act and therefore it appeared unnecessary to completely reverse the transaction. Respondents also asked for further advice on a situation where a seller was unable to locate the buyer to whom a refund is to be paid.

Government response

In cases where the seller did not register an item that was capable of meeting one of the exemptions under the Act, the sale of that item would be illegal until it had been registered and received a registration number or had been issued with an exemption certificate. The guidance explains that enforcement undertakings are more likely to be acceptable where, in appropriate circumstances, the person has indicated a willingness to undo the transaction (for example, where ivory items have been sold, repaying any sums paid), or cease any continuing action, which had led to the offence. These are necessary as otherwise the Secretary of State would need to consider the imposition of either a stop notice to bring an end to the illegal activity, or monetary penalty to remove any financial benefit arising from the offence. Therefore, the person is encouraged to address both factors in the enforcement undertaking by reversing the transaction.

If the item was not capable of meeting one of the exemptions under the Act, the sale of that item would be illegal, and the Secretary of State would determine the culpability of the person’s involved and the relevant enforcement action. We therefore consider it unnecessary to revise the guidance.

Where a seller is unable to locate the buyer to whom a refund is to be paid, we have reflected on this point and propose to clarify the guidance by caveating in paragraph 3.4 ‘Exceptions to this include circumstances where the person proposing the undertaking is unable to locate the buyer or seller, for example, if the sale took place at a car boot sale’. The person offering the undertaking will have opportunity to describe the circumstances of the breach on the enforcement undertaking proposal form.

Paragraphs 3.6 and 3.8 – Proposal and acceptance:

A number of respondents suggested that the circumstances where the Secretary of State is unlikely to agree to an enforcement undertaking should include those circumstances where the person has “previously entered into an enforcement undertaking, paid a monetary penalty (or discharge payment) or otherwise been found guilty of an offence under the Act”.

Government response

We agree that when considering an enforcement undertaking, it would be appropriate for the Secretary of State to take into account any previous non-compliance with the Act including the imposition of civil sanctions or prosecution. We therefore propose to amend paragraph 3.6(e) as follows:

3.6(e) ‘Whether the Secretary of State is satisfied that the acceptance of the proposed enforcement undertaking is a proportionate response to the relevant offence, taking account any previous non-compliance with the Act including the imposition of civil sanctions or prosecution, and the seriousness, circumstances and impact of the offence’.

Section 4 – Stop notices

Paragraph 4.5 – Failure to comply:

Several respondents commented that there should be a provision to treat failure to comply with an enforcement undertaking as a criminal offence, in the same way that under paragraph 4.5 describes a failure to comply with a stop notice as a criminal offence.

Government response

Having reflected on this, we consider that paragraph 3.26 of the guidance should be amended so that the last sentence refers to criminal prosecution: ‘However, part-compliance with an undertaking may be taken into account in the imposition of any civil sanctions or in considering criminal proceedings’. See also the response to Paragraph 1.16.

Paragraph 4.9 – Completion certificates:

A number of respondents asked for clarity and explanation of the 28-day period for when a person applies for a completion certificate to confirm they have complied with a stop notice.

Government response

A person may apply for a completion certificate as soon as they have completed all the actions on the stop notice. The guidance states that we would normally expect the person to apply within 28 days of completing the actions required, or by the date specified in the stop notice, if later. However, failure to apply within the 28-day period does not preclude a person from applying later if that was appropriate for the circumstances. The enforcement actions in the stop notice may in themselves be time limited, for example, if a person has an illegal item for sale, then the stop notice may stipulate that they must remove it from sale within a certain timeframe. The Secretary of State would be keen to know that the stop notice had been complied with. Therefore, a specified time period for responding is advised for the smooth operating of the civil sanctions regime and to ensure early and prompt action is taken.

Section 5 – Monetary penalties

Paragraph 5.6 – Consideration of a monetary penalty:

A number of respondents raised the same concern regarding monetary penalties and the inference that a person may be able to “avoid the imposition of a monetary penalty simply by agreeing to ‘undo’ the illegal transaction”. Suggestions were made to clarify and narrow down the circumstances where this action would be considered.

Government response

The guidance already notes that the Secretary of State may be less likely to impose a monetary penalty where they are satisfied that the person has already taken appropriate steps to ensure that the offence does not continue or recur, or ensure that the position is so far as possible, restored to what it would have been if the offence had not been committed. We have considered the point raised and consider that it would be helpful to clarify the circumstances where the Secretary of State may be less likely to impose a monetary penalty by adding to paragraph 5.6 that ‘The Secretary of State may be less likely to impose a monetary penalty where this is a first offence and/or a minor breach of the Act and they are satisfied that the person has already taken appropriate steps…’.

Paragraph 5.7 – Consideration of a monetary penalty:

Respondents highlighted that the focus of the guidance relates to a seller of an item but that the Act prohibits the selling and buying of non-exempted ivory items. There was a request for further advice on the due diligence that a buyer should undertake and how buyers feature in the civil penalty procedure.

Government response

The Act prohibits dealing in ivory items except for a few narrow exemptions. Dealing in ivory includes the selling, buying and hiring of ivory items. The due diligence that a person wishing to deal in an ivory item, either as a seller, buyer or hiring of an item, will be a matter for each individual to consider carefully before becoming involved in any dealing. It is the responsibility of the individual to ensure that the item has a genuine exemption certificate or is properly registered and due diligence will vary depending on the circumstances, including the type of item, the identity of the parties involved and the type of item. The administrative guidance will set out some considerations which may assist a person considering dealing in ivory and will be available online.

We propose to amend paragraph 1.5 to make it clear the extent of the Act in relation to dealing: ‘It is an offence under section 12 of the Act, to breach the prohibition on dealing (selling, buying, hiring, importing or exporting, offering or arranging to buy sell or hire; keeping for sale or hire) or to cause or facilitate a breach. This means that an offence under the Act applies to both a seller and a buyer of an ivory item, as well as to anyone involved in the dealing in other ways, such as arranging a sale or keeping in a shop for sale. A person commits an offence in relation to an item only if the person knows or suspects (or ought to have known or suspected) that the item is ivory, is made of ivory or has ivory in it’. If the person has failed to exercise due diligence and has not taken all reasonable steps to be sure that an ivory item is exempt from the ban, they may be liable to a civil penalty or prosecution.

Paragraph 5.12, 5.14, 5.15 – Calculation of penalty:

There was general agreement with the factors set out under this section. Several respondents however, commented on the same point regarding the overall principles for setting a monetary penalty, and that paragraph 5.15 of the guidance appeared to go beyond the principles set out in paragraphs 5.12 and 5.14. There was a general comment that paragraphs 5.12 and 5.14 were too narrowly focused on financial value and suggestions were made to expand the lists to include the factors in 5.15.

A suggestion was also made by several respondents on making it more explicit that paragraph 5.15(h) included whether a person had previously had a monetary penalty imposed (including discharged penalties).

Government response

We have reflected on the comments made and for transparency propose to amend paragraph 5.12: ‘The Secretary of State will determine a level of penalty that is clearly and consistently related to their view of (a) the impact of the case (including undermining the Act’s stated aims and deterrent to further offences under the Act); and (b) the value of the offending (which may be estimated where insufficient information is available) to determine the value of the illicit ivory dealing’.

With reference to paragraph 5.15(h) we consider that the current wording sufficiently addresses the point that the Secretary of State may take into consideration a person’s previous compliance history.

Paragraph 5.21 – Opportunity to discharge liability:

A number of respondents made identical points asking for clarification on how a discharge of liability for a penalty would be calculated and the purpose and use of the discharge of liability for a penalty. There were also similar requests made for further information on the factors that the Secretary of State would take into account when considering a civil sanction and which enforcement actions constitute a criminal offence.

There was a general concern that offenders could “opt out of a serious fine”, and that if a person paid the discharge payment, this would not be recorded as an offence under the Act and considered as part of the person’s compliance history when considering future offences under the Act. The same comment was also made in relation to advisory warnings which are not a civil sanction in themselves.

Government response

Schedule 1 of the Act sets out the civil sanctions available under the Act. The factors that the Secretary of State may take into account when considering enforcement action are broadly set out in the guidance. It would not be appropriate to contain or limit the factors that the Secretary of State will consider when considering enforcement actions, as the Secretary of State will consider each case individually and on its own merits. The Secretary of State will take into account a person’s full compliance history including any previous discharged penalties when considering the appropriate action to take in response to non-compliance.

The use of discharge of liability is a standard consideration in the process of imposing monetary penalties. The Act sets out the process for imposing a monetary penalty and option for paying a ‘discharge payment’ on receipt of the proposal notice and it is therefore not in scope of this consultation.

A discharge penalty enables cost effective compliance by ensuring early/prompt payment of the penalty and bringing the person back into compliance at the earliest opportunity. A discharge amount will usually be around 50% of the monetary penalty amount, but it can be set at any amount up to the value of the monetary penalty amount.

Neither a monetary penalty, nor a payment to discharge liability for such a penalty, are criminal sanctions, although both indicate that the Secretary of State is satisfied that an offence under section 12 has been committed and will be included in reports to be made in relation to the Secretary of State’s use of the enforcement powers under the Act. Discharged penalties will be considered in relation to future offending.

Paragraph 5.24 – Right to make representations:

A couple of respondents noted that in reference to a monetary penalty, there seems to be no restriction on the minimum period the Secretary of State allows for a person to object or make representations. Suggestions were made that there should be a minimum timeframe stipulated in legislation.

Government response

The Secretary of State may allow a maximum period of 28 days for the person to make objections or representations to a proposal notice for a monetary penalty. The Secretary of State has discretion to reduce this amount of time where they consider it necessary. For example, where the Secretary of State considers the person may attempt to avoid paying the penalty. The Secretary of State’s actions must be reasonable and proportionate to the offence. We do not consider it appropriate to set a minimum amount of time as this would limit the Secretary of State’s discretion and ability to respond appropriately in these matters.

For clarity, we will revise the guidance on the discharge period for where a person has made objections or representations by adding a new sentence: ‘If, after consideration, the Secretary of State still proposes to impose the monetary penalty, the period for discharge of the person’s liability for the monetary penalty by payment of the sum specified must be calculated for a maximum of 28 days starting from the day on which the Secretary of State sent the notice informing the person that the Secretary of State still proposes to impose the penalty’.

Next steps

We will introduce secondary legislation on civil sanctions provisions of the Ivory Act and will update and publish statutory guidance on enforcement of the Ivory Act in line with this consultation response.

Annex A

List of organisations that responded to the consultation

This is a list of the 12 organisations that responded to the consultation that did not request their response be treated as confidential (no organisations requested that their responses be treated as confidential). There were also 8 private individuals who responded to the consultation.

Action for Elephants UK
BADA
Born Free Foundation
British Art Market Federation (BAMF)
Chess Collectors International
David Shepherd Wildlife Foundation
Elephant Protection Initiative Foundation
Environmental Investigation Agency
Four Paws UK
Musicians Union and the Incorporated Society of Musicians (joint response)
N Bloom & Son
Society of Fine Art Auctioneers & Valuers