The Court of Appeal recently rejected the appeal of The Friends of Antique Cultural Treasures Ltd (“FACT”) in relation to the Ivory Act 2018. What impact does this have on those who trade in works or furniture made of or containing antique ivory?
In the short term, none, because the Ivory Act 2018 is still not in force. However, the reasons given for rejecting the appeal are illuminating. Do they also suggest that the Act may not in fact be brought into force in a hurry, especially at the current time?
By way of a reminder, the Ivory Act 2018 was passed on 20 December 2018 to great fanfare from the Department of Environment, Food and Rural Affairs (DEFRA). This makes it an offence to “deal in” ivory, which means not only to sell, buy or lend ivory (except to an accredited museum) but also to arrange a sale or loan from the UK, even if the ivory is outside the UK, or offer or advertise ivory as well importing or exporting it. Ivory in this case means specifically from the tusk or tooth of an elephant and the overall aim of the Act is to protect the endangered elephant population. However, the Act makes no distinction between the illegal trade in unworked elephant ivory and those who deal in genuinely antique pieces containing ivory but who would not dream of trading in tusks derived from recent elephant poaching. Certainly, no one in the case was supporting that practice but the case was brought because the Act was seen as disproportionately draconian.
The current position, at least while the UK is still in the process of formalising its exit from the EU, is that the regulations implementing the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) are directly applicable in the UK and mean that antique ivory, namely “worked specimens that were acquired more than 50 years previously” i.e. before 1947, can still be commercially traded within the EU and do not fall within the general prohibition on commercial dealing in specimens of listed species including Asian and African elephants. A certificate is, however, required to export antique ivory from the EU. There exist both criminal and civil sanctions for breaches of these regulations.
Under the Ivory Act 2018, however, there is no “pre-1947” exemption, apart from in relation to a “de minimis” exemption covering pre-1947 objects in which ivory makes up less than 10 percent of the total volume and is integral to the object. The exemptions are on the face of it far more limited, being otherwise confined to pre-1975 musical instruments, pre-1918 portrait miniatures, sales or loans to museums and ivory objects of “outstandingly high artistic, cultural or historical value”. Why then did DEFRA adopt this more stringent approach?
The Appeal judgment highlights the four justifications put forward by DEFRA:
(i) To suppress demand for ivory through a ban on domestic trade
(ii) To suppress demand for ivory through a ban on international trade
(iii) To persuade third-party states to impose stringent bans through international leadership
(iv) To support third countries that have imposed stringent bans through the giving of advice and support.
These justifications should be seen in light of DEFRA’s preliminary impact assessment published on 5 September 2017 in which it stated that its objective was to “ensure that the UK plays a leading role in ending the illegal trade in ivory” and that a total ban would demonstrate that “we are world leaders in the fight against the ivory trade” (emphases added).
It is understandable that from the perspective of the antique ivory trade, the first justification seemed especially unfair given that, as acknowledged in the Appeal judgment, Mr Justice Jay confirmed at first instance that there was “little or no demand in the UK for non-antique ivory” and that the evidence to suggest that the Ivory Act could have some meaningful effect on the illegal trade of ivory in the UK was “tenuous at best”. He also concluded that the evidence for an indirect link between UK ivory exports and demand for illegally sourced ivory on foreign markets was “not particularly compelling” either.
Not surprisingly, the criticisms of FACT on appeal focussed on the first and second justifications. In particular they argued that the judge’s findings regarding the lack of material connection between the antique ivory trade and the poaching of elephants should be “fatal to at least the ban on domestic trade”. In a way, the Appeal judges agreed with this since they held that if the justification for the domestic trading ban had been limited to this first category of evidence, the judge would have held that the restrictions in the Ivory Act were indeed disproportionate and unlawful. However, the issue for FACT was that DEFRA’s justifications were not limited to this first category and that it was the third and fourth justifications which carried the day, namely the role of the Ivory Act in conveying international leadership and providing support for third countries in their fight against elephant poaching. DEFRA had emphasised this motivation for the Ivory Act from the outset, and the courts have seen no reason to underestimate the significance of the Act in this political and diplomatic context. While the almost total trading ban in the Ivory Act may seem like using a sledgehammer to crack a nut, the courts obviously agreed that “if the UK had not imposed stringent import, export and domestic bans it would lose moral or political credibility at the international plane” and that the UK’s standing and ability to advise on an international level was the most persuasive argument in support of the Act.
Nevertheless, there is still not necessarily cause for complete despair on the part of dealers in antique ivory. Firstly, what may really count is the way in which the secondary legislation is drafted, namely the regulations which set out the finer detail of how the Act will actually work in practice. These may further clarify, for instance, which items might qualify as being of “outstandingly high artistic, cultural or historical value”. There is also scope for the regulations to broaden the criteria for this exemption since as well as the rarity and importance of the item, the Act states that “any other matters specified in regulations made by the appropriate national authority” may be taken into account. It remains to be seen what other matters might be included. The regulations should also cover the registration process for other items and what, if any, fee is payable – this has also been left to be dealt with by the regulations. This is not in itself unusual since the main Act is often the “flagship” part of the legislation with the nitty gritty being dealt with in later statutory instruments.
Furthermore, as indicated above, and as noted in the Appeal judgment, Parliament conferred upon the Secretary of State a discretion as to when to bring the Act into force. The Government’s own website had stated that this had been expected to happen in late 2019. According to the judgment, “the decision to defer the coming into force of the Act was a deliberate step taken to assist those with ivory to sell and thereby realise its value during a lengthy transition period”. However, there appears to be no further news on its implementation. When the Act was passed, the Government’s press release headline read, “World-leading UK Ivory Bill becomes law”. Having thereby gone some way to achieving its aim of heralding world leadership by passing the flagship Ivory Act itself, one cannot help wondering if Brexit and now the coronavirus pandemic have also contributed to the delay in the Act coming into force (along with the necessary regulations concerning its practical effect) and, given that other legislation may now take priority, could continue to do so for some time yet.