Proposed ban on ivory is lawful – including antiques

12 November 2019 by Rosalind English

R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment

“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)

The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.

The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.

The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.

Antique Cultural Treasures Ltd argued that the proposed ban was incompatible with EU law.

Arguments before the court

The effect of EU regulations is that, although there is a general prohibition on the commercial trade in ivory, and the trade in “raw” ivory is completely banned, there are some exemptions for worked ivory made before certain dates.

The claimant company attacked the proposed ban on two grounds. They alleged, first, that the UK lacks competence to legislate on a basis that is more stringent than EU law in a situation where the EU has exercised its competence to allow limited trade. Second, they argued that even if the UK were free to adopt more stringent measures than the UK, the ban on this trade between the UK and third countries was disproportionate under EU law, the Charter of Fundamental Rights of the European Union, and ECHR Protocol 1 Article 1.

In defence of the proposed ban, Defra set out four ways in which the Act contributed to its stated objectives:

by reducing the illegal ivory trade in the UK; by reducing the contribution made by UK ivory in sustaining ivory demand in other consumer markets which might support the illegal trade; by demonstrating UK leadership in closing down the commercial trade in ivory; and by supporting countries which had acted to close their domestic ivory markets.

The Act also aims to remove the opportunity to launder recently poached ivory as old ivory items through legal markets, and for it to be re-exported to markets where ivory continues to be a desirable commodity. These markets are obviously the primary destinations for newly poached ivory and laundered ivory from illegally killed elephants.

The High Court dismissed the application. Jay J ruled that the UK had been competent to enact it as it was an area of shared competence with the EU, and Member States were permitted to impose more stringent environmental measures than existing EU measures.

The judgment

The UK is a party to the Convention on International Trade in Endangered Species (CITES), which has prohibited trade in new ivory from all elephant species since 1990 “at the latest”. CITES expressly allows parties to adopt stricter domestic measures (Article 14(1)(a). Despite this, African elephant numbers have continued to decline significantly, primarily due to poaching. The EU adopted Regulation 338/97 governing the ivory trade, distinguishing between intra-EU trade and commercial export from the EU; pre-1947 worked ivory items can be traded within the EU without an authorisation certificate. Non-binding EU documents proposed a complete prohibition on trading ivory within and without the EU.

Despite the present panoply of protections in international treaty and the Regulations, between 2007 and 2014 the estimated total number of savanna elephants in Africa declined by 30%, equal to 144,000 elephants, primarily due to poaching. Statistics from the Elephant Trade Information system signify that the illicit ivory trade and the weight of ivory involved are now three times greater than in 1998. There is evidence that the UK is being used as a form of transport hub for illegally sourced items en route to the Far East. As Jay J observed,

If these rates of decline were to continue, elephants could become extinct within decades in some African countries. Elephants are a “keystone” species and aside from the tragedy that would directly flow, the knock-on environmental consequences would be wide-ranging.

Before this proposed ban comes into force, the antique trade has to rely on the seller correctly and honestly assessing the ivory to be pre-1947 and worked. It is disproportionately costly for the trade to use scientific testing such as carbon dating as a means of establishing an item to be worked pre-1947. The cost of testing (£400 or more) is more than the value of many items on sale and re-quires extracting a sample from the item which can also irreparably damage small or fine items due to the size of the sample needed. The United Nations Office on Drugs and Crime 2010 reports that

the trade in illicit ivory is only lucrative because there is a parallel licit supply, and ivory can be sold and used openly. Ivory would lose much of its marketability if buying it were unequivocally an illegal act, or if ownership of these status goods had to be concealed

The reasoning behind the judgment

On the question of UK competence, the correct point of departure is not the Regulations but the Treaties, particularly –TFEU art.193 , which states that Member States may adopt more stringent measures than those adopted by the Council under Article 192, which provides for environmental safeguards and which had led to Regulation 338/97. Nothing in that or any other Regulation, being secondary legislation, can displace the express wording of the TFEU.

Competence is shared between the EU and Member States; that was made clear by Article 2(6) of the TFEU and Article 4(2)(e). Where a Member State imposed more stringent measures, it is not doing so because the EU has not exercised its competence, but because the Member State is permitted to do so in a shared competence. The regime imposed by the Regulation is of minimum, not exhaustive, harmonisation; it imposed EU-wide floors, not ceilings (see paras 127- 137 of judgment).

As to the argument that the trade ban was disproportionate, the judge noted that more stringent measures are compatible with EU law when they are necessary for the protection of the life and health of animals (see Criminal Proceedings against Tridon (C-510/99): CJEU ruled that Member States are not precluded from enacting legislation that have a more onerous impact that Regulations in the interest of animal conservation). The reasoning in Tridon “greatly assists Defra’s case” (para 132). The quality of evidence was relevant, and moral and political judgments could be relevant where supported by other evidence. The precautionary principle under art.191(2) applies in environmental cases, which may justify bold and robust action.

The claimants submitted that the operation of the proposed ban would achieve a state of affairs tantamount to the deprivation of rights, and that even if it did not, the degree of the interference was relevant to the proportionality balance.

Proportionality has been described as both “a legal construction” and “a methodological tool” composed of four elements: proper purposes; rational connection; necessary means; and a proper relation between the benefit gained by realising the proper purpose and the harm caused by the fundamental right at issue.(para 149)

In the context of EU law, any national measures liable to hinder the exercise of Treaty freedoms must be non-discriminatory in their application, justified by “imperative requirements in the public interest”, suitable for securing the attainment of their stated objective and they should not go beyond what is necessary to attain it. The judge agreed that the Act derogated from the right of free movement of goods in the EU, and that that required a stricter approach to proportionality (R (on the application of Lumsdon) v Legal Services Board [2015] UKSC 41). But even the claimant accepted here that there is an “imperative requirement” in the general interest to endeavour to protect dwindling elephant populations.

It is for the national court to make the proportionality judgment. In Jay J’s opinion, in this case we are “in the realm of scientific and evidentiary uncertainty, and the need for a high level of protection makes that explicit.” Although evidence bearing on the issues of indirect causation of poaching and demand in Far Eastern countries may be uncertain, impressionistic and anecdotal, he did consider that these factors “did not preclude the taking of bold and robust action in the light of the precautionary principle” (para 155).

It was also relevant that the secretary of state’s department comprised experts in wildlife conservation and policy, but that Parliament had been in no better position than the court in weighing up the scientific and economic evidence. On the other hand, the political and moral judgments entailed by the Secretary of State’s justifications for the ban are better evaluated by Parliament than by the courts. (Para 162).

I have also held that I must heed, but by no means act as a cipher for, both Defra’s and Parliament’s ability better to test the validity of the [defendant Secretary of State’s] third and fourth justifications (para 164)

The Act did not engage the Charter of Fundamental Rights as there was no expropriation involved, moreover the Charter did not add to the TFEU fundamental freedoms, nor did the proportionality test under ECHR Protocol 1 Article 1 materially differ from that in CJEU case law. In any event in the instant case, the interference with property rights was not a complete deprivation. The Act prevented dealing, not use, and the delay in implementation had allowed some owners to sell items, although at an undervalue.