R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for Environment, Food and Rural Affairs
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Keywords: ivory – judicial review - CITES
Statute reference: Ivory Act 2018
The Facts
Section 1 of the Ivory Act 2018, not yet in force, introduced a ban on all trade in ivory. This included a ban on internal trade and the import and export of ivory. There are the following exceptions:
· Pre-1918 items of outstandingly high artistic, cultural or historical value
· Portrait miniatures of a prescribed size, made before 1918, and registered
· Items made before 1947 which contain less than 10 per cent ivory and where the ivory is integral and cannot be removed without difficulty or damaging the item
· Musical instruments made pre-1975 and where the volume of ivory is less than 20 per cent
· Sales to and between accredited museums.
The ban was justified by the Secretary of State for the following reasons:
· The suppression of demand by a ban on domestic trade: this would reduce the opportunity for illegal ivory in the United Kingdom
· The suppression of demand by a ban on international trade: this would reduce or eliminate the contribution made by ivory in the UK in supporting demand for ivory items in other markets, which might support the illegal trade in ivory, including the poaching of elephants
· Persuading third states to impose bans by international leadership
· Supporting third countries which had already imposed bans.
The Friends of Antique Cultural Treasures Ltd (FACT) applied for judicial review on the basis that the Act of 2018, which was not yet in force, was contrary to EU law in that it was a disproportionate interference with the free movement of goods and antique dealers’ rights. The central complaint was that there was not sufficient evidence of a proper scientific nature to justify the trading ban. The application failed in the High Court and FACT appealed to the Court of Appeal.
Decision
The appeal was dismissed.
It was lawful for parliament to introduce wide-ranging prohibitions on the domestic and international trade in ivory in the Act of 2018, not yet in force, by balancing individual rights against the need to act on the international plane to encourage other states to introduce stringent measures to save the African elephant. There was no need for a compensation scheme to be set up to compensate owners of antique ivory for the loss in value of their property.
There was an international consensus which recognised that there was a continued and growing threat to the African elephant and that extant international and domestic law regimes were failing and more extreme measures were needed.
The introduction of an isolated ban risked generating demand shifting or displacement and the policy objective could therefore be achieved only by the creation of an international hegemony and mutual international support, which had the effect of minimising the opportunities for demand suppressed in one state, to spring up elsewhere.
The trading bans were integral to the efforts of the UK in persuading other states to act likewise. If the UK had not imposed stringent import, export and domestic bans it would lose moral or political credibility at the international plane and it would lose the ability to form an active and influential part of that international hegemony.
It might be that the ban imposed by the UK would exert little quantitative economic impact but that missed the point. The relevance of the bans lay primarily in their moral and diplomatic impact upon the international plane.
The need for stringent action was acknowledged at the international level and the actions taken by parliament were directed towards that risk. What mattered was whether there was an identified risk and whether there was a connection between the action taken and the risk. The judge at first instance had examined the causal connections and the evidence. He properly described his analysis as a precautionary approach.
In the present case the risk had already materialised. Elephant numbers were rapidly declining. It was also a continuing and future risk and steps were needed now to prevent the situation worsening and to halt and reverse the negative trend in African elephant populations.
The risk to which the UK was responding was well accepted at the international level and the chosen mechanism, based upon diplomatic and moral effects of taking leadership, was widely acknowledged.
There had been no obligation upon parliament to introduce a compensation scheme. The secretary of state had a wide discretion as to when to bring the Act of 2018 into force. Those affected had about 30 months to take steps to realise the value of their ivory items.
If parliament had introduced a compensation scheme, that could have amounted to a signal to other states that they were bound to do likewise, especially in a case where the UK was seeking to adopt a stance of moral and political leadership. The states with the largest ivory trades were not the wealthiest. If a curb on trade had to be accompanied by compensation, it was easy to understand how that would curb the willingness of those states to impose trading restrictions in the first place. Also, there was no evidence which identified who would be entitled to compensation, and for what and as to the due amounts.
Comment
It is reported that tens of thousands of elephants are being killed across Africa each year for their tusks. 100 years ago there were approximately 5 million African elephants. There are now less than 500,000. The population of savannah elephants declined by 30 per cent from 2007 to 2014. Forest elephants declined by 60 per cent from 2002 to 2011.
Unrestricted international trade in new ivory was banned in 1989, but many countries have continued to allow ivory trading.
CITES (The Convention on International Trade in Endangered Species of Wild Fauna and Flora) entered into force in 1975. It is an international agreement between governments and other parties with the aim of ensuring that international trade in specimens of wild animals and plants does not threaten their survival.
The UK was identified in analyses of seizure data by CITES Elephant Trade Information System (ETIS) since 2002. It appears that the UK consistently played a role in the illegal global trade in ivory. Between 2010 and 2014 154 seizure records were reported from the UK to ETIS. Seizures were also made in countries which involved the UK as a country of export, re-export, transit or destination. The UK market was not directly linked to recently poached ivory but recent sales indicated an increased risk of opportunity for illegally sourced ivory to be passed off as legal.
A ban on trade would increase the stigma of buying ivory and this could have the effect of reducing demand.
Legal ivory is reportedly used by smugglers to disguise illegal trading. This is carried out by the use of legal permits to launder illegal ivory by increasing quantities beyond that originally certified.
If the acquisition of ivory is an illegal act or if its ownership had to be concealed, then it loses its marketability. Further, closure of the UK market avoids the UK becoming a place for traders to move from stricter jurisdictions.