After one of the world’s toughest bans on ivory trade received Royal Assent in the UK late last year, a group of antique dealers and collectors applied for judicial review of the Ivory Act 2018. The claim, brought by Friends of Antique Cultural Treasures Limited or “FACT”, was heard by Mr Justice Jay on 16 and 17 October 2019. Despite the Judge expressing sympathy with the Claimant and acknowledging that “important and wide-ranging issues” were raised, he dismissed FACT’s challenge on 5 November 2019. However, he granted FACT permission to appeal on the basis that its Ground 2 arguments (discussed below) had a real prospect of success in the Court of Appeal.
The Ivory Act 2018
The Ivory Act 2018 (the “Act”) is one of the world’s toughest bans. It prohibits the trade in ivory items. The Act contains five very narrowly defined exemptions. The exemptions are for: (i) pre-1918 items of “outstandingly high artistic, cultural or historical value” which must be the rarest and most important of their type; (ii) pre-1918 portrait miniatures possessing a surface area of no more than 320cm2 (equivalent to a square of 7 inches); (iii) pre-1947 items with less than 10% ivory in volume (the so-called “de minimis exemption”); (iv) pre-1975 musical instruments with less than 20% ivory by volume; and (v) sales between and to qualifying museums of ivory objects of any age[, ivory content and quality].
The Claim for Judicial Review
The collectors and dealers behind FACT fully support the fight against the trade in modern ivory and abhor any activity that fuels elephant poaching. However, they disagree that the trade in century-old artworks containing ivory should be banned. Artworks containing ivory are highly collectible. They are the expression of old cultures and traditions and a testament of the ingenuity and skills of the craftsmen who created them. Take for example medieval oliphants: they are made entirely of ivory, often carved and embellished with other material such as silver or brass. Another example are Japanese netsuke, many of whom are made of ivory and exquisitely carved. Is it really the case that banning the trade in such antique objects will reduce elephant poaching today?
FACT challenged the Act on two grounds. Firstly, FACT argued that the UK lacks competence to legislate on a basis which is more stringent than that provided by EU law where the Union has exercised its competence to allow certain trade in antique ivory (being worked ivory dated prior to 1947) (Ground 1). Secondly, and in the alternative, FACT argued that if the UK was free under EU law to legislate more stringently, the ban is disproportionate under EU law and/or the EU Charter of Fundamental Rights and/or Article 1 Protocol 1 of the European Charter of Human Rights. FACT argued there were more proportionate means of achieving the Act’s objectives and contended that the restrictions contained in the Act would undermine the fundamental right to property and, as far as specialist antique dealers are concerned, their right to conduct a business (Ground 2).
The Judgment
On Ground 1, Mr Justice Jay relied on the Treaty on the Functioning of the European Union (“TFEU”) and held that it gives Member States the ability to “adopt more stringent measures than those adopted by the Council pursuant to Article 192 [TFEU], which is the general provision dealing with environmental safeguards.”[1] For Mr Justice Jay, the EU and Member States retained shared competence in this area of law and the principal EU Regulation regulating the trade in protected species, more specifically, did not exhaust the Member States’ ability to impose more stringent protective measures.
On Ground 2, the Judge explained that the nature of the rights at stake, including the fundamental freedoms guaranteed by the EU Treaty, dictated the application of a stricter approach to proportionality. FACT argued that the measures contained in the Act were tantamount to a deprivation. For those who built collections of antiques over the years and held such antiques, for example, to fund their pension in later years (like several witnesses giving evidence to support the Claimant), the monetary value of their antiques is lost. Dealers specialising in antique objects which often contain ivory, such as Japanese netsuke, will no longer be able to hold these items to sell and will be forced to either close longstanding businesses or relocate to a different country. Whilst the Department for Environment, Food & Rural Affairs (“DEFRA”) contended that one could still value and appreciate the object for its aesthetic purposes, this is little comfort for those whose collections and stock have become effectively worthless as a result of the Act.
One of the Claimant’s key arguments was that DEFRA had not provided any evidence that the legitimate trade in antique ivory in the UK demonstrated any direct, or even indirect, casual link to fuelling the illegal ivory trade. FACT also challenged DEFRA’s argument that collectors of antique objects could be confused by modern ivory “stained with tea” to make it look antique. The Judge “strongly doubte[d] that good quality pre-1947 items are being sold in significant numbers in the sort of Far Eastern markets which trade in the recently harvested [ivory].”[2]
In addition to the lack of evidence that the legitimate antique market fuels the illegal ivory trade, the Claimant brought two evidential challenges: (i) that the evidence on which DEFRA heavily relied to demonstrate that the UK is a large exporter of ivory to the Far East is misleading; and (ii) that DEFRA’s assessment of the impact of the Act was not fit for purpose. In relation to the former, the Claimant explained that the figures on which DEFRA had relied were misleading, as on closer inspection, the majority of ivory exports from the UK to the Far East cited in the figures were in fact of piano keys, which are recorded individually. As the trade and export of piano keys will continue under the Act under the musical instrument exemption, the Claimant argued that the Act would have very little effect on these figures.
Secondly, DEFRA’s impact assessment for the Ivory Bill was reviewed by the Regulatory Policy Committee (“RPC”) prior to publication in final form. The RPC assesses the quality of evidence and analysis used to inform Government’s regulatory proposals. Although the RPC granted the impact assessment a green rating, the RPC had some serious concerns with DEFRA’s assessment. For example, it found that DEFRA’s assessment of the impact on private individuals and their collections was “not fit for purpose” and that DEFRA’s assessment of this aspect of the Ivory Bill needed to be significantly strengthened.[3] DEFRA was unable to provide any evidence that they had sought to address the RPC’s recommendations to understand the impact on collectors and also on businesses. Mr Justice Jay stated in his judgment that DEFRA’s Impact Assessment “considerably understates the impact of the Act (then the Bill) on businesses, and fails completely to deal with collectors, whether they are amateur or expert. The RPC said in terms that these facets of the IA were ‘not fit for purpose’, but the unfitness and the lacunae identified by this expert body have largely been ignored [by DEFRA].”[4]
Whilst Mr Justice Jay was less convinced by DEFRA’s argument that the trade in antique ivory was a cover for modern ivory, he did accept DEFRA’s submissions that the exemptions should be narrowly defined to demonstrate that the UK is willing to close down its own commercial trade in ivory, set an example to other countries by leading on elephant conservation, pro-actively contributing to change, and by supporting those states that have already taken action to reduce demand for ivory, reduce incentives to poach ivory. Whilst the Judge found that certain aspects of DEFRA’s assessment of the Act were clearly deficient and that the impact of the Act on private rights would undoubtedly be significant, he nonetheless held that the measures imposed by the Act were not inappropriate and that no equally effective measures were available to achieve the Act’s objectives.
The Claimant respectfully disagrees with the Judge’s conclusion that less restrictive but equally effective measures were not available to DEFRA, such as a separate exemption for pre-1947 antiques registered or certified by experts who are licensed, or an export ban to countries where the trade in ivory was not well regulated.
Commentary
Although Mr Justice Jay ruled in favour of DEFRA, the Judge had sympathy for FACT’s case. He acknowledged that FACT had raised “important and wide-ranging issues”,[5] and granted FACT’s request for permission to appeal his order on the basis that its proportionality argument has a real prospect of success on appeal.
The date of the appeal has not been confirmed as of the date of this blog article but we expect the case to be expedited.
The judgment can be found here:
https://www.bailii.org/ew/cases/EWHC/Admin/2019/2951.html.
Constantine Cannon LLP are instructed by FACT in the judicial review.
Fionnuala Rogers and Emelyne Peticca
[1] §125 of the judgment.
[2] §177 of the judgment.
[3] §33 of the judgment.
[4] §170 of the judgment.
[5] §7 of the judgment.