Ivory ban upheld by Court of Appeal
19 May 2020
I wrote up Jay J’s dismissal on the challenge to the lawfulness of trading restrictions in the 2018 Ivory Act here. The details of the appellant’s role and their arguments, as well as the reasoning behind the judge’s decision, are set out in that post. The thrust of the initial claim was that the prohibitions in the Act went too far and were disproportionate under Articles 34, 35 and 36 of the Treaty on the Functioning of the European Union (“TFEU”). The question before the Court of Appeal was whether the judge applied the proportionality test correctly.
The overarching complaint was that the evidence base was insufficient. The appellant’s criticisms of Jay J’s analysis can be summarised as follows:
(i) wrongful use of the precautionary principle and the acceptance of inadequate evidence to support the bans;
(ii) failure to take account of the failings in the Impact Assessment which preceded the Bill and the according of too much deference to Parliament; and
(iii) violation of the principle of respect for property and the wrongful failure to require a right to compensation.
The Court of Appeal noted that this appeal has arisen whilst the United Kingdom is in the transition period following exit day from the European Union. It sufficed to record that until the end of the “Implementation Period”, which is presently set at 11pm on 31st December 2020, the same rules apply as they did prior to exit day.
Just a brief reminder of the ban imposed by the 2018 Act. Section 1 introduced a prohibition on all trade in ivory and this included a ban on (a) internal UK trade, and (b) a prohibition on the import and export of ivory.
There are five exceptions to the ban:
(i) the “Rarest and Most Important Exemption” pre-1918 items of “outstandingly high artistic, cultural or historical value”;
(ii) the “Portrait Miniatures Exemption” exempts portrait miniatures if they were made before 1918, possess a surface area of no more than 320cm², and are registered;
(iii) the “Minimal Content Exemption” exempts items made before 1947 containing less than 10% ivory by volume and where all the ivory is integral to it and cannot be removed without difficulty or damaging the item;
(iv) the “Musical Instruments Exemption” exempts musical instruments which are pre-1975 and where the volume of the ivory in the instrument is less than 20% of the total material of which the instrument is composed and
(v) the “Museum Exemption” exempts sales to, and between, qualifying or accredited museums both inside and outside the UK
The ban was justified by the respondent department on the following grounds:
(i) Suppression of demand through a ban on domestic trade: To reduce further or eliminate any opportunity there may be for illegal ivory, including recently poached ivory, to be traded through markets for ivory items, including antique ivory items, in the UK.
(ii) Suppression of demand through a ban on international trade: To reduce further or eliminate the contribution made by ivory items from the UK, including antique ivory items, in supporting or sustaining demand for ivory items in other consumer markets, which may also support the illegal trade in ivory including the poaching of elephants.
(iii) Persuading third states to impose stringent bans through international leadership: To demonstrate that the UK is willing to close down the commercial trade in items which may be valued for their ivory content, including antique ivory items, and so setting an example of leadership and contributing to achieving this change.
(iv) Supporting third countries that have imposed stringent bans through the giving of advice and support: To support those countries which have already taken action, in particular by closing their domestic markets for ivory items to the greatest extent so as to reduce demand for ivory items in those markets and associated markets and reduce incentives to obtain illegal ivory, including recently poached ivory.
The Court of Appel could find no errors detect no errors in the approach adopted or in the findings made by the judge about the evidence.
He was, in our judgment, right to find that the Act was proportionate and lawful.
The appeal was dismissed:
In conclusion the Judge was correct in his analysis and reasoning. The enactment by Parliament of the trading bans contained in the Ivory Act 2018 was lawful. The restrictions do not violate the EU rules on the free movement of goods nor the fundamental rights to respect for property rights or to conduct business contained in A1P1 or the Charter.
Reasoning behind the Court of Appeal’s decision
The CA accepted the respondent’s argument that the elimination, subject to narrow exceptions, of all opportunity for illegal ivory (including recently poached ivory) to be traded through markets for ivory items, including antique ivory items, in the UK would contribute, albeit indirectly, to the dampening of demand at the international level and, in due turn, the opportunities for elephant poaching.
The prohibition would “make it more difficult for criminals to use the lawful trade to mask a trade in items containing poached ivory and, by significantly reducing the scale of the lawful trade, will make enforcement easier”. The Impact Assessment showed that, whilst most ivory trade was legal, the UK featured in several cluster analyses of seizure data by CITES’s “Elephant Trade Information System” since 2002.
This indicated that the UK consistently played a role in an illegal global trade. Between 2010 and 2014, 154 seizure records were reported by the UK to ETIS which reflected a significant increase upon the previous five-year period. Seizures were made not only in the UK, but also in other countries that involved the UK either as a country of export, re-export, transit, or destination. There was also a risk that the UK goods market would not distinguish between legal and illegal trade: only goods worked before 1947 could be sold and exported without a permit. The UK market was not directly linked to trade in recently poached ivory, but sales of more recent products and particularly raw tusks potentially presented an increased risk in terms of opportunity to pass off illegally-sourced ivory items as legitimate. The coexistence of legal and illegal items in the market created confusion.
[In addition to this confusion over whether antiques contain illegal ivory or not], Banning trade will increase the stigma of buying ivory reducing demand in both the legal and illegal markets. Also, those who buy ivory as an investment will cease to do so if they have concerns around whether they can find a market outlet for it.
The Court also took note of the IA’s evidence that legal ivory is used by smugglers to mask the illicit ivory trade. Smugglers use legal permits to launder the product of elephant poaching by increasing the quantity over what was originally certified in permits to trade ivory or by using these permits several times. As the legal market shrinks and permits become more exceptional, laundering illegal ivory becomes more difficult and expensive.
As the amount of legal ivory diminishes and becomes more easily identifiable monitoring and enforcing becomes easier.
Ivory would lose much of its marketability if its acquisition were an illegal act, or if ownership of such status goods had to be concealed. There was further evidence that closing the UK market avoided the UK becoming a haven for traders moving out of stricter jurisdictions, such as the USA.
It might well be true, as [the judge below] found, that the ban imposed by the UK would exert little quantitative economic impact in and of itself (ie the judge’s conclusions on the direct economic impact in the first and second justifications); but that misses the point. The relevance of the trading bans lies primarily in their moral and diplomatic impact upon the international plane and as to that there is evidence, recorded and accepted by the judge, that the bans in the Act, even as yet unimplemented, are exerting real and not hypothetical effects. We find no fault in the conclusions of the judge about the evidence.
The effect, said the Court, of all the suggested alternative solutions to render the ban more proportionate (such as age verification of the worked ivory) would broaden the exceptions to the ban and as such dilute the vigour of the international diplomatic and political effort.
Any broadening of the exceptions, which necessarily implied a weakening of the trading prohibitions, would risk weakening the international political and diplomatic effort to persuade third states to impose equally stringent trading bans. Parliament did not adopt a total prohibition on all trade, it accepted in large measure the compromise solution reflected in the Bill. In so doing it properly balanced individual rights with the broader political and diplomatic objectives. We reject this criticism of the reasoning of the judge.
The Court also dismissed the appellant’s criticism of the judge’s use of the precautionary principle. They alleged that he had been wrong to rely on it since it could only be used if invoked prior to its operation and it had no role as an after the event justification. In any event, they contended, it could only be used where the means used to mitigate a risk could be established, by reference to strong contemporaneous scientific evidence, to bear a proper causal connection or nexus to the achievement of the mitigation of the risk in question, and there was no such evidence in this case.
On the contrary, said the CA. The judge used the language of the precautionary principle in the context of the “common ground fact that the elephant population in Africa was dramatically threatened by the demand for ivory and that CITES, and other international and national measures, had failed to prevent widescale poaching.”
The precautionary principle is not a mantra to be invoked; it is a description of a broad approach adopted by states to mitigate identifiable risk. There is no discernible reason in law or logic why the risk should always be a future one, yet to eventuate. In this case the risk has already materialised (elephant numbers were rapidly declining notwithstanding international efforts) but it is also a continuing (and hence future) risk and steps are needed now to prevent the situation worsening and to halt and reverse the negative trend in African elephant populations. In any event, even if the label was wrongly used by the Judge, nonetheless, on the facts, his conclusion was still in our view justified. We consider that Parliament was acting within its margin of appreciation or discretion and the Judge was correct so to find.
The Court gave short shrift to the final complaint of the appellants, that the judge had failed to give sufficient consideration to property rights under the right to respect for property as contained in Article 1 Protocol 1 of the European Convention, and Article 17 of the Charter of Fundamental Rights and Freedoms. Their argument centred on the right to compensation, but, as the judge had found in the initial hearing, this was irrelevant as the ivory ban did not involve a case of complete deprivation. The right of ownership remained unaffected because the prohibitions were focused upon trading in ivory, not possession.
A1P1 and Article 17 of the Charter (which are to be read consistently) apply where there is either an expropriation of property (which refers to a compulsory vesting of a person’s ownership in property in the state or a person or entity chosen by the state) or to a “control of use” (whereby ownership remains with the proprietor but rights of ownership are curtailed). In the case of expropriation, the case for compensation is strong and case law indicates that it will be exceptional for it not to be payable. In the case of control of use, however, the obligation to compensate is much weaker. See R v Secretary of State for Health ex p. Eastside Cheese Co  3 CMLR 123