On 10 August 2020 the Supreme Court notified the parties of its refusal to grant Friends of Antique Cultural Treasures Ltd (“FACT Ltd”) permission to appeal the decisions of the High Court and Court of Appeal, meaning an end to their judicial review of the Ivory Act 2018. We all strongly condemn elephant poaching, but FACT Ltd brought the challenge to the Act so that dealers and collectors across the UK should not be prevented from conducting their business or collecting unique works of art that incorporated antique ivory – items not found to have a link to the poaching of elephants.
Although this refusal to grant permission means we now expect the Ivory Act will in due course come into force, Mr Justice Jay’s conclusions from the High Court case, endorsed by the Court of Appeal, were that that there is little evidence to suggest that the genuine antiques trade represents a cover for a trade in illegally poached ivory in the UK. The harm brought by the Act to dealers and collectors of ivory antiques was recognised by the court, along with a recognition that the scale of the impact had been under-stated by the Government.
It should be understood that the Court of Appeal only upheld the High Court judgement because it accepted the Government’s case that it was entitled to introduce legislation that was wholly or mainly for the purpose of supporting and encouraging other countries (including those where poached ivory actually represents a problem) to bring in their own bans. It concluded that the Government and UK Parliament had a broad “margin of discretion” in considering what was appropriate in this respect. By contrast, the first of the Government’s justifications for a UK domestic trade ban - the assertion that prohibiting trade in the UK would itself remove the opportunity for poached ivory to be traded – was not in any of the judges’ opinions supported by the facts.
The Court of Appeal further emphasised the lack of evidence of an illicit, poached ivory problem in the UK by saying of Mr Justice Jay:
“It is apparent that had the justification for the domestic trading ban been limited to this first category of evidence the judge would have held that the restrictions were disproportionate and unlawful …”
What happens now?
Assuming the Government still wishes to bring the Act into force, then further regulations will need to be placed before Parliament in order to do this. It is anticipated that there will also be statutory guidance on matters to be taken into account when assessing whether an item is of outstandingly high artistic, cultural or historical value, as well as issues such as application fees or measures concerning the appeals process.
Ministerial written assurances were given to Parliament in 2018 that a consultation process would take place with key stakeholders before publication of the non-statutory administrative guidance, needed to help applicants understand the provisions of the Ivory Act, and in particular to provide information about how to assess whether items would meet the exemptions in the Act. Ministerial correspondence placed before Parliament said that this would give examples of how to assess items for the purpose of the 10% ivory “de minimis” exemption, including suggested ways of assessing the percentage volume of ivory in circumstances where it is difficult to make that assessment.
We cannot be entirely certain that such non-statutory guidance will be published prior to the Act coming into force, but it would be extremely unfair and illogical to bring it into force without having first explained how it can be complied with. Assuming a consultation occurs before the Act’s measures come in then there could possibly be a reasonable lead time before that happens.
Members of the trade made clear to Defra in 2019 that there would need to be an implementation period of at least six months, and ideally a year, during which those offering exempt items for sale would be given time to upload details about them onto Defra’s database, or for those who own objects they believe to be of outstandingly high artistic, cultural or historical value to apply for an exemption certificate.
We will continue to keep members informed about the next stages and most importantly the timing concerning when and how the Act will come into force. We fully recognise that this is a very important factor for dealers and collectors alike. BADA also intends to provide information to help people understand the new rules and their impact, in addition to any official guidance that is made available by the Government.