The debate continues… High court dismisses challenge to the Ivory Act 2018 but permission to appeal granted

Posted on: November 19, 2019 by

As previously noted in the IAL blog, the recent challenge to the Ivory Act 2018 has continued an ongoing debate over the UK government’s decision to impose a stricter ban on the trade in elephant ivory. (See earlier reports here and here). On the 5th of November 2019, Mr Justice Jay handed down his High Court judgment upholding the Ivory Act 2018 and dismissing the claim for judicial review. However, with an appeal to the Court of Appeal set to be heard in spring 2020, it is clear that this judgment will not constitute the last word on the matter.

Elephants

via Wikimedia Commons CC-SA 2.0 by Benh LIEU SONG

The claim was brought by the limited company ‘Friends of Antique Cultural Treasures’, otherwise known as ‘FACT’. The entity was incorporated for the purpose of bringing the judicial review and is comprised of three members, all of whom deal in or collect antique objects which contain worked ivory.

The Act, which passed through parliament in December 2018, is not yet in force. Mr Justice Jay noted in his judgement that the intention of the Secretary of State for the Environment, Food and Rural Affairs (Defra) had been to initiate implementation of the secondary legislation needed to bring the act into force by early 2020. The Government’s plans to implement the ban as soon as possible were confirmed by Environment Secretary, Theresa Villiers, but of course, the proposed timing might now have to be adjusted following news of the pending appeal.

The Act constitutes a substantial change from the previous regulatory framework governing the ivory trade in the UK, which allowed buying and selling ivory objects which were ‘worked’ before 1947. Instead the new Act introduces a total ban on dealing in items containing elephant ivory, regardless of their age, within the UK, as well as export from or import to the UK, and then provides a complex system of exemptions. These cover (i) pre-1918 items of outstandingly high artistic, cultural or historical value, (ii) pre-1918 portrait miniatures with a surface area of no more than 320cm2, (iii) pre-1947 items with an ivory content of less than 10% of the total volume but to which ivory is integral, (iv) pre-1975 musical instruments with an ivory content of less than 20% of the total volume, and (v) sales to and between accredited museums. Some of the exemptions require a certificate whilst others require registration of the item in question.

FACT’s challenge was premised on two grounds. The first argued that the UK lacked the competence to legislate more stringent measures in an area where the EU had already exercised its own competence. Mr Justice Jay rejected this ground of challenge after a thorough examination of the relevant EU laws (paragraphs 114-137).

Under the second ground, the claimants argued that, if the UK did indeed have the competence to legislate in this area, the measures of the Act were disproportionate under EU law, the EU Charter of Fundamental Rights and the European Convention on Human Rights. The judge was more sympathetic to this ground, stating that the he did not agree with all of Defra’s submissions but that “upon anxious and lengthy reflection” he would accept the “essential gravamen” of their case (paragraph 147).

Defra argued that the Act was justified because it achieved its objectives in the following four ways: (i) by reducing or eliminating the opportunity for illegal ivory to be traded through legal ivory markets, (ii) by reducing or eliminating the contribution of ivory items from the UK in supporting or sustaining demand for ivory in other consumer markets, (iii) by setting an example of leadership, and (iv) by supporting countries who have already taken action (paragraph 51).

Mr Justice Jay noted that any restrictions on the claimant’s rights resulting from the Ivory Act were balanced by the fact that the Act prevents only dealing and the right to own, gift, inherit or bequeath ivory is not affected. Additionally, the delay in its implementation has allowed owners the time to sell ivory items and sale outside the UK is probably still permitted, although dealing within the UK of items to be sold abroad is not (paragraph 169). Nonetheless, he was critical of the impact assessment conducted by Defra which “considerably understates the impact of the Act…on businesses, and fails completely to deal with collectors” (paragraph 170). Whilst he considered that the impact on the trade was greater than Defra anticipated, this was not sufficient to win the claimant’s their case.

Mr Justice Jay acknowledged that there were evidentiary difficulties in this area. For example, it is hard to determine the extent to which the legal ivory market provides an opportunity for laundering illegal ivory items. However, the judge applied a concept of EU law known as the precautionary principle. This encourages countries to take protective and preventative measures even when evidence in support is limited, provided there is no evidence to the contrary. Based on this, the court held that bold and robust action to protect elephants and the environment is justified (paragraph 155). He also noted, particularly in the context of the third and fourth justifications outlined above, that Parliament was more suited to make assessments of these political and moral issues than the court (paragraphs 161, 191). Furthermore, Mr Justice Jay was not persuaded that any less restrictive alternatives that would be equally effective (paragraphs 185-187).

Meanwhile, prosecutions for illegally trading in ivory continue under the old regulations, which will prevail until the new Act comes into force. In September this year, as reported by the Antiques Trade Gazette, two individuals were sentenced to 28 months’ imprisonment after pleading guilty to illegally exporting ivory objects without the permits required by the Customs & Excise Management Act 1979. Interestingly, since the antique ivory fans in question were pre-1947 worked items, trading in these objects within the UK would have been legal under the old system, without requiring any documentation. In contrast, the new Act will prohibit not only dealing within the UK but also the import and export of ivory items, unless they fall within the recognised exemptions, all of which require registration or certification. To export an exempted ivory item will still require an export permit. However, the requirement for documentation for all types of dealings in ivory creates a more consistent approach across national and international trade.

FACT is appealing on the ground of proportionality only, the second ground considered at the High Court. This will likely delay the current predictions for when the new Act will come into force. For now, we must wait for the Court of Appeal judgment before there can be any certainty on the future of the ivory trade in the UK.