By Noelle McElhatton, Antiques Trade Gazette
The Ivory Act 2018 and its near-total ban on trade in antique ivory is the fruition of a Conservative Party manifesto pledge made in 2015.
“The general election result won’t make any difference to how the Court of Appeal judges will view the case,” said Richard Pike, a partner at Constantine Cannon, the lawyers acting for dealers and collector group, FACT Ltd.
Pike added that the desire among MPs for an ivory ban had been “cross-party”. The lawyer’s comments come as DEFRA, the defendant in the appeal, has requested the hearing to happen before the end of March 2020.
FACT’s case is partly based on EU law and having won a parliamentary majority last week, Prime Minister Boris Johnson is proceeding with plans for Brexit to happen by the end of January 2020.
‘Proportionality’ of Ban
Dealers and collectors formed the FACT Ltd company to challenge the act and won the right to appeal a High Court judicial review which had found in favour of DEFRA, the act’s sponsor. FACT’s appeal questions the ‘proportionality’ of the Ivory Act 2018, based on EU and human rights law.
The Court of Appeal has the power, after reviewing the legal arguments on both sides, to declare that domestic legislation is of no effect.
However FACT is tempering expectations on the appeal’s outcome, while continuing to raise funds for the cost of the appeal.
“It’s very difficult to get the Court of Appeal to overturn primary legislation,” Pike said, “though we might yet go to the Supreme Court. I wouldn’t rule that out.”
Timing of Appeal Hearing
FACT has agreed to DEFRA’s request that the appeal be heard before the end of March 2020, which would minimise further delay before the act is brought into force. “It is a bit quicker than normal for an appeal, but we could not really refuse the request,” Pike said.
After the judicial hearing judgment in November went in its favour, DEFRA declared it would “press ahead” with bringing the act into force.
FACT has submitted its arguments to the Court of Appeal, including addressing an environmental point to do with the so-called ‘precautionary principle’ raised by Mr Justice Robert Jay in his judicial review judgment.
DEFRA, contacted by ATG, said it was “unable to comment on ongoing judicial proceedings”.