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Much publicity has been given to the five categories of exemptions from the Ivory Act 2018, under which, if an ivory work qualifies, and is registered as such, the work concerned will escape the ban on sale under the act.

More precisely, there are four categories of ‘standard exemption’ and the fifth escape route is if the item is ‘certified as a pre-1918 item of outstandingly high artistic, cultural or historical value’.

In relation to this certification the Government website guidance advises that you should consider two factors:

• Whether the item is rare.

• The extent to which the item is an important example of its type.

It then goes on to advise that you need to demonstrate only one of these factors to meet this condition.

The guidance then states that whether your item is an important example of its type may depend on a number of factors listed, one of which is its ‘previously recognised status’, and in turn this may be demonstrated by, for example, the fact that it has been recognised as a national treasure by meeting the Waverley Criteria.

Waverley Criteria

Should you have a work of art that has been recognised as a national treasure, the work will have been most likely through a very interesting process to determine whether the Waverley Criteria apply, which briefly are as follows:

Waverley One

Is the work so closely connected with our history and national life that its departure would be a misfortune?

Waverley Two

Is it of outstanding aesthetic importance?

Waverley Three

Is it of outstanding significance for the study of some particular branch of art, learning or history?

To deal with a specific example in which I was involved, the DCMS referred the work, where application had been made for it to be exported, to the Reviewing Committee on the Export of Works of Art.

The purpose of this committee is to advise ministers whether a cultural object, for which an application for an export licence has been made, is of national importance under the Waverley Criteria.

The hearing took place at the National Gallery with the painting on display for all concerned: an Old Master, close-up, for all to view.

Eight highly eminent members drawn from the arts constituted the Reviewing Committee. Two expert advisers were present from national institutions. Additionally, there were three independent assessors, being eminent curators, art historians, etc.

The team of which I was a part included an expert in the relevant field and other professional advisers. Our client was the purchaser, living abroad. The experts on my team were collectively and firmly of the view that while the painting was indeed a very beautiful object, it fell short of the stringent Waverley Criteria – they didn’t think it was of ‘outstanding aesthetic importance’. These submissions were accordingly made by our expert to the committee.

The fiery response from one of the independent assessors was to declare “Well then let’s have a wholesale export of England’s heritage!” This particular Dutch artist was his province, and dear to his heart.

Given his vehemence I chose not to start a debate about whether a Dutch Old Master may arguably be the Netherlands’ heritage.

Assessment issues

What this demonstrates to me above all is that assessing, under the Ivory Act, whether a pre- 1918 item has ‘outstandingly high artistic, cultural or historical value’ is inevitably going to be very subjective, however scrupulously independent the determining expert may apparently be.

In my case, the Reviewing Committee decided that the painting did satisfy the Waverley Criteria and its export was blocked pending the raising of funds to retain it within the UK. However, as so often happens, those funds could not be raised so eventually it was exported anyway.

At least the client was happy…

Milton Silverman is senior commercial dispute resolution partner at Streathers Solicitors LLP, London.