From ivory ban to ivory war? The trade controversy continues to sizzle

Posted on: July 29, 2019 by

The debate on the elephant ivory ban in the UK, which we have previously covered on the IAL blog here and here, seemed to have reached a conclusion as the 2018 Ivory Act received royal assent in late December last year. However, since then there have been two important developments.


via Wikimedia Commons CC-SA 2.0 by Benh LIEU SONG

Firstly, activists have been campaigning for a new bill to extend the ban to other species, such as hippos, warthogs, whales and narwhals, building on the precedent of having achieved the ban for elephant ivory and based on the fact that banning the trade in one ivory seems to have the negative side effect of pushing up demand for other types of ivory. This petitioning has led to a consultation on the ‘Non-Elephant Ivory Trade’ by the UK Department for Environment, Food and Rural Affairs (DEFRA), which will remain open until August 22nd2019. The consultation does not deal with a direct ban on the non-elephant ivory trade, but is rather a ‘call for evidence’ as to whether action needs to be taken in regard to this broader trade.

Secondly, as we had predicted here, the 2018 Ivory Act has been taken to the High Court for judicial review. Just as the UK gears up to hopefully reach a conclusion on Brexit this October, the high-profile lawsuit questions the legality of the 2018 Ivory Act under certain EU rules. Whilst this lawsuit could be seen as an eleventh-hour attempt to prevent the ban from entering into force later this year, it does raise interesting questions from the standpoint of EU competence rules. For starters, as was reported in the Antiques Trade Gazette, the main argument of the lawsuit seems to be that EU regulations on the ivory trade already deal with pre-1947 worked ivory and that as a result of EU legislative competencies, Member States, such as the UK (for now), would not be at liberty to enact their own rules on the matter.

Sir Wyn Williams, High Court judge, has granted the claimant’s request to challenge the Secretary of State for DEFRA on certain aspects of the 2018 Ivory Act. This means that a full hearing on the legality of the act will go ahead and is likely to be scheduled for October 2019, as stated in a note from the Queen’s Bench Division Administrative Court. The claimant in the present lawsuit is a company named Friends of Antique Cultural Treasures Ltd (FACT), which is made up of dealers and collectors and whose registered address is that of law firm Constantine Cannon LLP. For those wishing to contribute to their cause, they have made a call for donations through the Antiques Trade Gazette and contributions can be forwarded on to Mark Dodgson, Secretary General of the British Antique Dealers Association (BADA). Watch this space for further updates as this lawsuit develops, as well as for the outcome of the current DEFRA Consultation on the ‘Non-Elephant Ivory Trade’.