Friends of Antique Cultural Treasures (FACT) Ltd, a company set up to fight the act’s near-total ban on the trade in antique ivory, had hoped to challenge the decision of the Court of Appeal in May this year. However, an order from the Supreme Court was issued on August 10 stating that permission to appeal had been refused.
Legal fight ‘at an end’
Richard Pike, partner at law firm Constantine Cannon, who was advising FACT, said: “We are disappointed that the legal challenge is at an end. Our view has always been that the Ivory Act is a disproportionate measure, doing terrible damage to the UK’s artistic and cultural heritage for little, if any, benefit.
“The courts accepted a lot of our evidence but concluded that if the government wants to legislate to send a message to other countries then it can do that, regardless of the harm to its own citizens.”
Pike advised dealers and collectors who still have “non-exempt ivory items in the UK” that they might want to sell in the future that they should “take steps immediately to export it”.
Mark Dodgson, secretary general at the British Antique Dealers’ Association (BADA), said: “Naturally I am disappointed that the Supreme Court did not allow a further appeal. We all strongly condemn elephant poaching, but the courts acknowledged that there is scant evidence to suggest that the genuine antiques trade represents a cover for a trade in illegally poached ivory in the UK. They also agreed that the scale of the impact of the Ivory Act on collectors and the antiques trade had been under-stated by the Government.
“The Court of Appeal only upheld the High Court judgement because it accepted the Government’s case that it was entitled to introduce legislation that was wholly or mainly for the purpose of supporting and encouraging other countries to bring in their modern ivory bans. It would have been perfectly possible to enact measures that send an equally strong message to other countries, without so badly damaging the British antiques trade and historical objects, both of which are unconnected with the modern poached ivory trade.
“Ministerial assurances were previously given that the trade will be consulted on the guidance for how the Act will operate in practice, so I hope that Defra will work with members of the trade before bringing in the new measures, since they will prove complex and confusing for many people.”
A Defra spokesperson welcomed last week’s final decision. “We welcome the Court of Appeal’s ruling from May, 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.”
Dealer Alastair Gibson, speaking on behalf of the directors of FACT, said it would “like to thank all the donors from the various elements of the trade who made this stand possible”.
Paul Moss, Asian art specialist and former dealer and a director of FACT, said: “To keep having judges agree with the most important legal aspect of your case and then find against it anyway, because it doesn't do to disagree with the government, is very dispiriting.
“From the antiques trade point of view this is the thin end of the wedge. Obviously, there is a case which has gone unanswered as to the removal of monetary value from the citizenship, with no compensation. That was not my own rationale: I object to having the glorious works of art that I love insulted and debased for the material they were carved from in a pre-woke age, and my lifetime of research and publications trashed by a scantily thought-out piece of illogical, knee-jerk legislation. All involved in pushing it through should be ashamed of themselves. But they won’t.”
The act features a number of exemptions to the ban on the trade of works containing ivory. These include items containing less than 10% ivory by volume made prior to 1947, portrait miniatures made before 1918, sales to and between accredited museums, items ‘of outstanding artistic, cultural or historic significance’ made prior to 1918, and musical instruments with an ivory content of less than 20% and made before 1975.