UK Ivory Bill – Appeal

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Banner Image – Protesters supporting the UK Ivory Bill being enacted in full outside the High Court, 24 February 2020 – courtesy of Action for Elephants


Back in November 2019, Friends of Antique Cultural Treasures (FACT – a limited company formed by dealers and collectors, with funds channelled via the British Antique Dealers’ Association (BADA)) lost its challenge against the UK Ivory Bill 2018, arguing in Court that the United Kingdom (UK) Ivory Bill (2018) is incompatible with European Union (EU) law, because the EU allows trade in pre-1947 (“Antique“) ‘worked’ ivory. But FACT was given grounds to appeal:

Recording of the live proceedings link –  “Friends of Antique Cultural Treasures –v- The Secretary of State for the Environment, Food and Rural Affairs

The issue in the appeal is whether the ban on the trade in antique ivory to be introduced by the Ivory Act 2018 satisfies the applicable standards of proportionality under EU law, the EU Charter of Fundamental Rights, and/ or Article 1 Protocol 1 ECHR.”

FACT’s request for permission to appeal was granted on the basis that its proportionality argument has “a real prospect of success” on appeal:

……the nature of the rights at stake, including the fundamental freedoms guaranteed by the EU Treaty, dictated the application of a stricter approach to proportionality. FACT argued that the measures contained in the Act were tantamount to a deprivation. For those who built collections of antiques over the years and held such antiques, for example, to fund their pension in later years (like several witnesses giving evidence to support the Claimant), the monetary value of their antiques is lost” – – “Ivory Act UK: High Court Judgment and Permission to Appeal

How many such pensioners are invested for their future security in “Antique” ivory, is not made clear. Even if some are, then that was to a large extent at their own risk (the same as any other speculative investment that is curtailed by new laws/stipulations/market turn-down, or misfortune etc. – there are no investment guarantees).

However, the link between all forms of ivory worship (self declared as “Antique” ivory or otherwise) perpetuates ivory worship, promoting acceptance and legitimising ivory demand (of all origins).

This link is not ‘unproven,’ ‘hypothetical’ only, or ‘tenuous’ – for example, Hugh Fearnley-Whittingstall’s 2016 BBC series, “Africa’s Elephants: Hugh and the Ivory War“:

  • Exposed Asian ivory buyers as seemingly willingly naïve to the plight of any unwilling donor creature, killed for this avid market’s purchasing pleasure. When confronted with the reality that to meet their desire for ivory, elephants are killed/poached at an unsustainable rate, these same buyers seemed genuinely shocked, appalled and conflicted in their desire for ivory and the negative consequences for ‘donor’ elephants. How does the antique industry know that by having their appetite for “Antique” ivory in the United Kingdom satisfied, ivory buyers are not encouraged to seek ivory of even more dubious origin elsewhere?
  • Hugh Fearnley-Whittingstall examined nine ivory pieces purchased on-line in the United Kingdom.  After employing scientific carbon-dating methods, four out of nine pieces were found not to pre-date 1947, with one ivory item dated as taken from an elephant that was growing its tusk in the 1980s. Two other pieces had been re-worked into ‘new’ pieces, so were also technically ‘illegal’ as the overall piece could not be considered as a ‘worked’ item pre-dating 1947. So overall, two-thirds (66.67%) of the ivory items studied by Hugh Fearnley-Whittingstall were not ‘legal’ “Antique” ivory that could be sold in the United Kingdom.

All ivory of any origin (including “Antique“) stimulates and maintains this present day demand/ivory worship, including poached/modern ivory and the needless elephant, hippo etc. deaths to meet that demand……..all form of ivory trading needs to end now. Plus, the dubious provenance (where given) of “Antique” ivory pieces is often based upon the “appraiser’s eye” appraising the patina and carving style etc….but of course the appraiser’s eyeis not above error, whether genuine, or to disingenuous:

A 2017 Two Million Tusks (TMT) study “Ivory – The Grey Areas,”  concluded that 90% of the ivory lots investigated had no conclusive proof of the provenance of the ivory and therefore, no proof of compliance with the United Kingdom law on ivory trading as specified by DEFRA. In conclusion, the TMT study paints a damning indictment on the onus of responsibility United Kingdom auction houses place upon themselves to ensure the ivory pieces they openly market are legally compliant:

  • In 48% of ivory lots investigated, the auction house did not give any indication of the age of the ivory being sold in the descriptions provided (and therefore, its legal compliance as “Antique” or otherwise);
  • Many auction houses (12% of cases) sought to place the burden of proof on the potential purchaser to deduce of their own accord regarding the ‘legality’ (or otherwise) for a given ivory lot marketed;
  • In over 30% of cases, the auction house confessed it did not know the age of the ivory lot in question;
  • In one instance, in the Main Study there was a raw tusk and an unworked tusk within the same sale – it should be clear to anyone operating legally within the antiques industry, both these items are illegal to sell in the United Kingdom.

Plus of course, the applicability of EU law is a moot point, as the UK in now in a transition period as it exits the EU.

The EU Wildlife Trade Regulations (WTR) allows member states of the EU to  implement more stringent policies than the EU to address the trade of species. Therefore, any member state is allowed to apply stricter laws and control with regards wildlife, including elephants (let alone a state, such as the UK that is in a transition period as it leaves the EU…).

The privately funded appeal is being heard in the Royal Courts of Justice, London, 24 – 25 February 2020.

We await the outcome…..

Further Reading

Lawyer for dealers in Ivory Act appeal: ‘prepare to sell your antique ivory’,” Antique Trade Gazette, 27 February 2020

A tiny British company is trying to undo the country’s landmark law on elephant ivory,” The Canary, 21 February 2020

What’s your verdict? The antiques trade appeals its failed bid to quash UK ivory act,” Environmental Investigation Agency, 6 February 2020

Fantastic day for elephants’: court rejects ivory ban challenge” the Guardian, 5 November 2019

High Court ruling upholds Ivory Act, The government has successfully defended a Judicial Review of the Ivory Act, Gov.UK,  5 November 2019

Legal bid to stop Ivory Act fails – but dealers and collectors are considering an appeal,” Antique Trade Gazette, 5 November 2019

FACT is now “considering its options” on whether to appeal the judgement – a move that would involve further fundraising from the antiques trade. It has until November 12 to seek permission to appeal.

In taking but losing the judicial review of the act, FACT must pay DEFRA’s legal costs as well as its own, though payment is likely to be deferred until after any appeal.

UK Ivory Consultation“, IWB, 2 November 2017

The United Kingdom Ivory Consultation,” IWB’s submission, 2 November 2017

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