19 May 2020 by Samuel March
Judgment: [Friends of Antique Cultural Treasures Ltd v DEFRA  EWCA Civ 649](https://www.bailii.org/ew/cases/EWCA/Civ/2020/649.html)
On 18 May 2020 the Court of Appeal unanimously ruled that the restrictions imposed by the Ivory Act 2018 (“the Act”) do not violate the EU rules on the free movement of goods, nor the fundamental rights to respect for property rights.
The Act, not yet in force, will introduce wide ranging prohibitions on the ivory trade. The Appellants, a company incorporated for the sole purpose of representing the interests of antique ivory dealers and collectors in this matter, sought to directly challenge the provisions of the Act, arguing that these prohibitions went too far and were disproportionate.
At first instance, Mr Justice Jay in the High Court dismissed the challenge. The Appellants appealed, mounting a series of challenges to his reasoning.
In brief, the question on appeal was whether the Judge at first instance had applied the proportionality test correctly.
EU law continues to apply in the UK until 31 December 2020. Articles 34 and 35 of the Treaty on the Functioning of the European Union prohibit import and export restrictions on trade in goods between the EU Member States. However, these articles do not apply where the restrictions are a necessary and proportionate way to pursue one of the legitimate aims set out in Article 36, which includes safeguarding the welfare of animals.
The Appellants argued that there was insufficient evidence supporting the Respondents’ justification, and further or alternatively that less restrictive and intrusive measures could have been adopted by parliament to achieve their aim.
The Appellants further relied on the right to property enshrined in Article 17 of the EU Charter of Fundamental Rights and Protocol 1 Article 1 of the European Convention on Human Rights, as well as the right to freedom to conduct a business per Article 16 of the Charter.
Finding for the Respondents, the Court of Appeal could detect no errors in the approach adopted or in the findings made by the Judge about the evidence. At -, they concluded that he was right to find that the Act was proportionate and lawful:
“In his considered and careful analysis the Judge applied the correct approach to the evidence. He concluded that he had to make an objective appraisal of the evidence before him, even where it included evidence not before Parliament. He reviewed that evidence individually and collectively and attached to each strand of evidence appropriate weight. He found that in some respects the evidence was lacking but, when viewed overall, there was sufficient evidence to support the justifications advanced for the trading bans. He applied a variegated approach to the margin of appreciation or discretion that the court should attach to the assessment conducted by the state and concluded that, where matters of international politics and diplomacy are in issue, a broader margin is appropriate. He considered that the Act was justified, taking into account the evidence and the margin that Parliament was entitled to in adopting legislation in this field. In arriving at his conclusion, he took account of the fact that the Act did intrude significantly into fundamental property rights and the right to conduct business, but this did not mean that the Act was disproportionate.” 
The judgment is likely to be welcome news to animal and environmental campaigners, as well the 85% of the British public who supported the ban. Speaking prior to the appeal, Mary Rice, the Executive Director of the Environmental Investigation Agency had said: “It would be a tragedy for endangered elephants in Africa and Asia if the UK Ivory Act were to be cut down at this final hurdle, not to mention a slap in the face for the vast majority of British citizens who quite clearly put elephant welfare far above the right to make money off blood ivory.”
Unsurprisingly, the judgment was welcomed by DEFRA, a spokesperson for whom said: “We welcome the Court of Appeal’s ruling, which upholds the High Court’s decision and dismisses the claim against the Ivory Act. We are committed to bringing the ivory ban into force as soon as practicable to help protect the world’s endangered species and halt biodiversity loss.”
However, there have been suggestions of a possible appeal. Richard Pike, partner at Constantine Cannon, the law firm acting for the Appellants was reported in the Antiques Trade Gazette to have said “We've got seven days to seek permission to appeal - and there is a possibility that this will happen.”