In our last newsletter (Ivory Act 2018 – a political triumph at the art market's expense?) had received royal assent and discussed its potential impact on the art market.
Since then, there have been two significant developments:
(i) Judicial Review of the Act
A newly formed company of dealers and collectors, the Friends of Antique Cultural Treasures Limited (“FACT”), sought and was granted permission for a judicial review of the Act.
A full hearing took place on Wednesday 16 October 2019 before Mr Justice Robert Jay.
FACT's arguments were two-fold: (i) it asserted that the Act is contrary to the EU Wildlife Trade Regulations, which permit trade in worked antique ivory and, according to FACT, do not allow the UK government to introduce more stringent measures, if implemented, the Act would amount to “severe interference with fundamental rights and freedom”. FACT relied on a report it had commissioned which estimated economic loss for private collectors and businesses of £390 million.
The Department for Environment, Food and Rural Affairs (Defra) argued that the relevant EU rules set a minimum level of environmental protection; they did not prohibit the UK from imposing more stringent requirements. Defra also asserted that the Act was necessary in light of data showing that legal controls needed to be global in nature and would curb the use of lawful trade to mask a trade in items containing poached ivory. Furthermore, the Act’s effect on owners would be “purely financial” and owners and dealers had a long window in which to sell their items before the Act comes into force.
A draft judgment will be provided to the parties in confidence by 31 October 2019 (the current Brexit deadline). A date has not been set for the public judgment to be handed down. Given FACT's challenge is premised on EU law, it is unclear whether, in the event of a Brexit on 31 October 2019, any judgment following the hearing will stand.
(ii) Non-Elephant Ivory Trade Consultation
On 30 May 2019, the UK Department for Environment, Food and Rural Affairs launched a call for evidence on whether action should be taken in relation to ivory from species other than elephants, including hippopotamus, walrus and narwhal. The consultation closed on 22 August 2019.
It remains to be seen what steps (if any) the government will take in response to the consultation. The Telegraph, citing senior sources at Defra, has reported there will be a consultation to change the law to include all ivory-bearing animals. A summary of the government’s responses is expected to be published by mid-November 2019.