Friends of Antique Cultural Treasures Ltd, R (on the application of) v The Secretary of State for the Department of Environment, Food & Rural Affairs

Friends of Antique Cultural Treasures Ltd, R (on the application of) v. The Secretary of State for the Department of Environment, Food & Rural Affairs

Smart Summary (Beta)

Factual and Procedural Background

This appeal arises from the judgment of Judge Jay who dismissed a claim challenging the lawfulness of trading restrictions in the Ivory Act 2018 ("the Act"), which proposes prohibitions on domestic and international trade in ivory. The appellant, a company limited by guarantee whose members deal in antique ivory, challenged the Act primarily on grounds that the prohibitions were disproportionate and lacked sufficient scientific evidence. The respondent is the Department of the Environment, Food & Rural Affairs ("Defra"), representing Parliament's position. Judicial review permission was granted on grounds relating to compliance with Articles 34-36 of the Treaty on the Functioning of the European Union ("TFEU") and fundamental rights under the European Convention on Human Rights and the EU Charter of Fundamental Rights. The Act received Royal Assent on 20th December 2018 but was not yet in force at the time of judgment. The Judge dismissed the claims, holding the Act lawful, and granted permission to appeal only on the ground concerning proportionality and fundamental rights.

Legal Issues Presented

Whether the trading restrictions in the Ivory Act 2018 infringe Articles 34 and 35 TFEU and, if so, whether they are justified under Article 36 TFEU on grounds including animal welfare.
Whether the Judge correctly applied the proportionality test to the Act's trading bans.
Whether there was sufficient scientific evidence to justify the trading bans.
Whether less restrictive but equally effective measures could have been adopted by Parliament.
Whether the Judge erred in his approach to the precautionary principle and the evidential basis of the ban.
Whether the Act violated fundamental rights to respect for property and freedom to conduct business under the Charter and the European Convention on Human Rights, including considerations of compensation.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case C-333/14 Scotch Whisky Association v Lord Advocate [2016] 1 WLR 2283	Role of appellate court following proportionality assessment; appellate court reviews reasoning rather than re-performing assessment.	Cited to explain the appellate court's limited role in reassessing proportionality absent new evidence.
R (on the application of AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47	Appellate court's approach to reviewing proportionality decisions.	Supported the principle that appellate courts consider the justification of the lower court's reasoning.
R (on the application of Unison) v Lord Chancellor [2017] UKSC 51	Admitting new evidence at appellate stage if more current than that before the first instance judge.	Not applicable in this appeal but cited for context.
The Queen (Simonis) v Arts Council and others [2020] EWCA Civ 374	Application of EU law during UK transition period post-Brexit.	Clarified that EU rules remained applicable during the Implementation Period.
Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165	Articulation of the principle of proportionality in EU law.	Used to explain proportionality requirements in assessing restrictions.
Case C-510/99 Tridon [2001] ECR 1-777	Proportionality in environmental context.	Supported the application of proportionality to environmental and animal welfare measures.
R (Lumsdon) v Legal Services Board [2016] AC 697	Proportionality test; margin of appreciation; burden of proof regarding less restrictive measures.	Guided the court’s assessment of whether less restrictive measures could achieve the same objectives.
Transport for London v Uber London Limited and others [2018] EWCA Civ 1213	Scope of decision maker’s duty to consider alternatives in proportionality assessment.	Supported the principle that not every conceivable alternative must be considered.
British American Tobacco and others v Secretary of State for Health [2016] EWHC 1169 (Admin)	Proportionality and the margin of appreciation; assessment of evidence quality.	Informed the court’s approach to balancing interests and assessing evidence.
EU Lotto Ltd and Ors v Secretary of State for Digital, Culture, Media and Sport [2018] EWHC 3111 (Admin)	Intensity of scrutiny in proportionality; application of precautionary principle.	Referenced regarding the context-specific intensity of judicial review of evidence.
R (on the application of Begum) v Denbigh High School [2006] UKHL 15	Proportionality as a matter of outcome rather than process.	Supported the court’s focus on proportionality of the measure rather than procedural flaws.
Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19	Proportionality under the Convention and application of closer scrutiny.	Confirmed that proportionality under fundamental rights involves an evaluative judgment by courts.
R v Goldstein [1983] 1 WLR 151	Proportionality test in trade restrictions; the "sledgehammer to crack a nut" analogy.	Used to illustrate the requirement that measures not be excessively severe relative to their objectives.
R v Secretary of State for Health ex p. Eastside Cheese Co [1999] 3 CMLR 123	Compensation principles under Article 1 of Protocol No. 1 ECHR in deprivation vs control of use cases.	Clarified that compensation obligations vary depending on the nature of property interference.
Chassagnou and others v France (1999) ECHR 25088/94	Fair balance test in control of use cases under Article 1 Protocol No. 1 ECHR.	Discussed proportionality and compensation in cases of control of use rather than expropriation.

Court's Reasoning and Analysis

The Court began by considering the evidence before the Judge supporting the trading bans. It identified four justifications advanced by Defra: (i) suppression of domestic ivory trade to reduce illegal trade opportunities; (ii) suppression of international trade from the UK to reduce demand abroad; (iii) demonstrating international leadership to persuade other states to adopt bans; and (iv) supporting third countries through advice and assistance.

The Judge applied a nuanced proportionality analysis, objectively assessing the evidence regardless of whether it was before Parliament. He differentiated the weight to be given to various strands of evidence, finding the first justification (domestic trade suppression) supported by limited evidence and the second (international trade suppression) supported by modest evidence. The third and fourth justifications, based on political and diplomatic considerations, were strongly supported by evidence and accorded considerable deference.

The Judge concluded that the trading bans were not disproportionate and that no less restrictive but equally effective alternatives existed. He rejected the appellant’s criticism of the Impact Assessment’s deficiencies by considering additional evidence, including the Woodnewton Report. The Judge also addressed the application of the precautionary principle, finding it appropriate in the context of recognized risks to elephant populations despite incomplete scientific certainty.

Regarding fundamental rights, the Judge acknowledged interference with property rights and freedom to conduct business but found the restrictions proportionate. He determined that the Act’s interference was a control of use rather than full expropriation, and thus no compensation scheme was required. The Court endorsed this reasoning, noting mitigating factors such as the delayed commencement of the Act allowing affected parties to realise value and the broader diplomatic context discouraging compensation schemes.

Holding and Implications

The Court DISMISSED the appeal, upholding the judgment that the Ivory Act 2018’s trading bans are lawful. The Act does not violate Articles 34-36 TFEU or fundamental rights under the Charter and the European Convention on Human Rights. The decision confirms that stringent trading restrictions justified on political, diplomatic, and precautionary grounds can withstand proportionality challenges despite limited direct scientific evidence. No compensation scheme is mandated where property rights are controlled but not expropriated. The ruling has the direct effect of allowing the Act’s provisions to stand, but does not establish new precedent beyond the application of established principles to this legislative context.

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