Ivory Act: UK Supreme Court rejects application to appeal

On 30 July 2020, the UK Supreme Court rejected the application made by the Friends of Antique Cultural Treasures Ltd (“FACT”) for permission to further appeal the decisions of the High Court and Court of Appeal dismissing its claim for judicial review of the Ivory Act 2018 (the “Act”) (see our previous blog on the Court of Appeal decision here).

This decision puts an end to FACT’s two-year battle to oppose the ban on trade in antique ivory in the UK. Whilst collectors and dealers behind FACT, and Constantine Cannon LLP representing FACT, strongly condemn elephant poaching, the challenge to the Act was brought to ensure that dealers and collectors across the UK would not be prevented from conducting their business and/or collecting unique works of art containing antique ivory. Relying on our understanding of the complexities of the Act and the way it impacts other UK and international regulations, we proposed alternatives to the strict ban enshrined in the Ivory Act that would have allowed the British market in antique ivory to prosper without undermining the rightful objective of the Act, namely the protection of elephants and a total ban on trading post-1947 (“modern”) ivory in the UK. Unfortunately, the Courts were unwilling to intervene in the legislative process that led Parliament to adopt the Act. We continue to believe that it is regrettable that once the Act comes into force, it will not be possible for individuals and businesses in the UK to buy, sell and collect precious objects created in centuries past as expressions of ancient cultures, if these object contain ivory above the de minimis.

We remain extremely honoured with the complimentary feedback received from our clients and the art market:

Everyone is so impressed with the legal team and counsel. Nothing but praise and admiration for not only fighting our corner but grasping the complexity of our profession. We all feel it was the best fight we could have put up.

My sincere thanks and congratulations to you and our entire legal team. You were all truly amazing. The subject matter is both dense and rarefied, but you mastered it. The presentation was superb.”

“Wouldn’t have missed it for the world. Tom de La Mare QC was utterly brilliant.

For more information on the extent of our representation, read our blog here.

Despite the Supreme Court’s refusal to grant permission to appeal, Constantine Cannon LLP remains dedicated to supporting dealers and collectors in offering solutions that comply with the Act whilst mitigating its impact on them. The Act is complex and far-reaching. We would urge every dealer and collector preparing to mitigate the impact of the Act to seek legal advice.

With no other judicial challenge against it, the Act is expected to come into effect soon once the Government has issued guidance on certain key provisions. Such secondary legislation, by setting out how the Act will apply in practice, should assist dealers and collectors in assessing the scope of the Act on their business and collecting activities. This includes clarifying which items qualify for the “Exemption for pre-1918 items of outstandingly high artistic, cultural or historic value” (Section 2) and matters to be taken into account when considering the exemption such as the item’s rarity, the extent to which the item is an important example of its type, as well as “any other matters specified in regulations made by the appropriate national authority” (Section 2(3)). Secondary legislation is also expected to address the implementation of registration requirements for certain items (Sections 10 and 11). A government consultation on these topics is anticipated and it is hoped that it will provide an opportunity for the trade to respond and put forward its concerns and recommendations.     

Dealers in, and collectors of, antique ivory who have not taken steps to consider how the Act will apply to them, must do so now. Practical steps which we recommend taking in order to mitigate the impact of the Act include undertaking an audit of your collection or stock, and/or considering which objects in your stock or collection will need an export license if you are considering moving any objects out of the country. Depending on the size of your collection or stock, these steps may require a significant amount of time. It is important that they are not delayed, and the following steps can be taken whilst the government prepares to implement the Act:

  1. Identifying which items in your collection or stock contain antique elephant ivory, and which of those items may fall within the scope of the Act or may require an export licence and/or a CITES export permit to leave the UK.
  2. Engaging qualified experts to examine objects containing antique ivory which are likely to fall within the scope of an exemption under Sections 2, 6, 7, or 8 of the Act and commissioning a written opinion in support of this.
  3. Deciding which objects to export, bearing in mind any applicable regulatory requirements to keep objects in the European Union under CITES and other pertinent regulations, the potential need to secure an object’s immunity from seizure abroad, an object’s tax status, etc.

Should dealers and collectors intend to complete sales of object containing antique ivory prior to the Act coming into force, they must be aware of the impact of leaving any sale to the last minute. For example, if a transaction involves a dealer and a consumer and is concluded at a distance less than two weeks before the Act comes into force, assuming that the dealer’s contract gives consumers the right to change their mind, the parties may find themselves in a difficult situation should the consumer wish to return the item within the 14 day return period. Depending on the circumstances of the sale, a refund of an object may well fall within the definition of “dealing” making the return of the object illegal under the Act and attract penalties. If the dealer’s contract is silent on the right to return, the return period is extended to 12 months and 14 days. Post-sale arrangements may also qualify as dealing, including export for onward sale. Therefore, we recommend concluding all transactions in objects containing antique ivory well in advance of the yet unknown date when the Act comes into force.

Last but not least, the cross-border movement of antique ivory, and the handling of antique ivory abroad, can be unlawful under the Act. Given that criminal penalties are attached to violations, taking steps to understand where to draw the line between lawful and unlawful handling outside the UK is critical. To that end, we will shortly release further guidance. If you are not familiar with the complexities of ivory regulations, we recommend that you seek the advice of specialists. We would be happy to discuss your individual situation with you. To do so, please contact Fionnuala Rogers on frogers@constantinecannon.co.uk or Simon Yeung at syeung@constantinecannon.co.uk.