High Court to hear challenge to Ivory Act on Brexit eve

The countdown is on to a High Court hearing on the legality of the proposed Ivory Act 2018 before Britain leaves the European Union in October 2019.

High Court judge, Sir Wyn Williams granted permission for judicial review of the controversial act on the basis that it “raises a point of some considerable difficulty and importance in European law”. The applicants, a company of dealers and collectors called the Friends of Antique Cultural Treasures Ltd (FACT), claim that provisions of the Act dealing with trade in pre-1947 worked ivory are “in direct and irreconcilable conflict with the EU’s exercise of competence in this field and cannot stand”.

FACT argues that the Act is contrary to the EU Wildlife Trade Regulations, which permit trade in worked antique ivory as this is not considered a threat to elephant conservation. They further submit that any legislation that seeks to regulate the ivory trade should focus on ensuring ivory objects are in fact antique and not modern fakes, rather than imposing an outright ban. FACT state that if implemented, the Act would amount to “severe interference with fundamental rights and freedom”.

The Ivory Act received Royal Assent in December 2018. If implemented, it would introduce an outright ban on trading in worked ivory of all ages within the UK as well as export from or import to the UK with the following exemptions:

  • Musical instruments;
  • Items with only a small proportion of ivory;
  • Items of significant historic, artistic or cultural value; and
  • Sales between museums.

The rationale behind the draft legislation was to stem the rise in modern poaching in elephant ivory, which accounts for the deaths of 20,000 elephants each year.

Antique sellers and dealers steadfastly oppose the ban as “an over-reaction… very detrimental to the honest and legitimate trade of pre-1947 ivory”, as Noelle McElhatton of the Antiques Trade Gazette stated in October 2017. Helen Carless of the Society of Fine Art Auctioneers and Valuers (SOFAA) told the Antiques Trade Gazette in January 2019 that the act would “have a very real impact on SOFAA members. At the very least it will make low priced items containing more than 10% ivory impossible to sell”.

In a statement shared on Art Law & More in June 2019, gallery owner, Guy Sainty, of Stair Sainty Gallery asked if those responsible for drafting the act really considered its effects or the responses to a Government consultation conducted in 2017. Sainty warned that the registration requirement for exempted objects under the Act would be “an inevitably cumbersome and detailed procedure which one can foresee becoming unmanageable”. He also pointed out that there is no provision for owners of worked ivory objects to receive compensation under the Act after their property value is wiped out.

If the High Court declares the Ivory Act incompatible with EU law in October, it would have no effect until new legislation is passed. According to a note from the Queen’s Bench Division Administrative Court, the hearing will take place sometime in October 2019 prior to Brexit.

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