Court of Appeal rules Ivory Act 2018 is lawful

The Court of Appeal has upheld the decision of the High Court that the Ivory Act 2018 which prohibits ivory dealing with very limited exceptions is lawful and does not contain unlawful trading restrictions.

The aim of the Ivory Act is to prevent commercial activities concerning ivory in the UK and the import and re-export of ivory for commercial purposes to and from the UK. This includes intra-EU trade to and from the UK.

The Act received Royal Assent on 20 December 2018 but has not yet entered into force.

The appeal

In November 2019 The Friends of Antique Cultural Treasures Limited challenged the legality of the legislation through a Judicial Review in the High Court. As reported by NAVA Propertymark last year, on 5 November 2019 The High Court upheld the Act as lawful under EU law and stated it would not disproportionately or adversely affect the businesses or income of UK dealers in antique ivory.

The Friends of Antique Cultural Treasures Limited were granted a right of appeal, however, the Court of Appeal also dismissed their case and upheld the Ivory Act 2018 to be lawful.

In delivering the Court’s judgment, Sir Terence Etherton, Master of the Rolls stated: “We can 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 on the following grounds:

  • The High Court judge had applied the correct approach to the evidence and was right to find that the Act was proportionate and lawful. He found that in some respects the evidence was lacking but, when viewed overall, there was sufficient evidence to support the justifications advanced for the trading bans.
  • The suggested alternative solutions put forward by the appellant, such as a system of age verification, would broaden the exceptions to the ban and dilute the international efforts to limit the demand for ivory.
  • There was an identified risk to the African Elephant population is internationally well accepted and the action taken by the UK government is connected to addressing that risk.
  • Whilst the Government’s initial risk assessment contained gaps, they rectified this by commissioning an independent survey of the economic impact on antique dealers and others affected by the ban.
  • The High Court judge had adequately addressed the issue of the extent to which trading bans undermine the right to the peaceful enjoyment of possessions without state interference and gave great scrutiny to this matter.

Furthermore, the Court of Appeal held that there was no obligation on Parliament to introduce a compensation scheme for those affected by the legislation.

Delivering his conclusion, The Master of the Rolls stated: “There is an international consensus which recognises that there is a continued and indeed growing threat to the African elephant and that extant international law and domestic law regimes are failing; more extreme measures are needed. To meet this serious threat one state acting alone cannot succeed.”

Read the Judgement from the Court of Appeal on 18 May 2020.