A final judgment? Court of Appeal rules in favour of the Ivory Act 2018

Posted on: June 5, 2020 by

We have been following the debate over the UK’s position on ivory on the IAL blog over the past few years. The latest development has seen the Court of Appeal uphold the decision of the High Court, finding the Ivory Act 2018 to be lawful. What does this mean for the future of the ivory trade in the UK and is this the end of the story?

We analysed the decision of the High Court in a previous blog post, but will provide a brief reminder of the key facts here for those unfamiliar with the case. The Ivory Act was enacted in December 2018, but has not yet come into force. The legislation prohibits dealing in all items containing elephant ivory, which includes internal UK trade, import and export. There are five narrow exemptions to this total ban, allowing certain categories of objects to be traded legally provided they are registered or certificated. The ‘Friends of Antique Cultural Treasures’ (FACT), comprised of individuals who deal in antique ivory, brought proceedings for a judicial review of the Act but lost in the High Court in November 2019. They appealed and the Court of Appeal handed down its judgment on 18 May 2020.

Elephants at Amboseli National Park (Image Credit: Amoghavarsha JS CC BY-SA 3.0 via Wikimedia Commons)

The main question on appeal was whether the High Court judge had applied the proportionality test correctly (i.e. broadly speaking, was the ban proportionate under EU law, taking into account principles encompassed in the EU Charter of Fundamental Rights and the European Convention on Human Rights).

FACT argued that the evidence used to justify the Act was inadequate and, alternatively, even if the Act were justified, it was disproportionate because less restrictive but equally effective measures could have been used.

The Court of Appeal found no fault in the High Court’s reasoning in relation to FACT’s arguments and was particularly persuaded by the political and diplomatic aims cited by Defra as justifications for the Act’s stringent measures: namely the perceived role of such measures in fostering international co-operation in tackling the threat to elephants. The alternative measures proposed by FACT would broaden the exceptions to the ban, weakening its political and diplomatic impact. As such, these could not be said to be equally effective.

Another argument raised by FACT on appeal was that the High Court had not taken account of the failings of the Act’s Impact Assessment. The Court of Appeal noted that, whilst the High Court had acknowledged certain problems with the Impact Assessment, it had also remedied this by considering additional evidence in court.

In response to FACT’s claim that the High Court did not take proper account of the Act’s impact on fundamental rights, including the right to respect for property, the Court of Appeal found that the High Court “squarely addressed” the significance of these rights (paragraph 103). More specifically, no compensation scheme was required to make the ban proportionate because this was not a case of complete deprivation of a right. Under the Act, as well as the narrow trade exceptions, the ownership and gifting of ivory are allowed.

Is this the final word on the matter? A Defra spokesperson has said that the ban will be brought into force “as soon as practicable”, though it’s fair to say that the Government is currently somewhat preoccupied with other matters. Implementing the Act would help to provide greater certainty for those who operate in this trade.

Meanwhile, we continue to await the outcome of the Government’s consultation on the non-elephant ivory trade, which closed in August 2019 and aimed to publish its responses within 12 weeks of closing. There is concern that poaching may increase because of the Covid-19 crisis, demonstrating the persistence of these threats to wildlife. There will certainly be more to say on this topic in the future.