Following a consultation carried out by the Department for the Environment, Food and Rural Affairs (“DEFRA”), Parliament enacted the Ivory Act 2018, which introduced wide ranging prohibitions on the domestic and international trade in ivory. Before the 2018 Act was brought into force, the claimant, a company limited by guarantee incorporated to challenge the Act by its three members and directors all of whom dealt in antique ivory, sought judicial review on the ground that the bans introduced by the Act infringed articles 34 and 35 of the Treaty on the Functioning of the European Union (“TFEU”), which prohibited import and export restrictions on trade in goods between European Union member states. DEFRA contended that the prohibitions were justified and proportionate within article 36 TFEU. The judge dismissed the claim, holding: (i) that there was limited evidence that the ban would exert an impact on international demand for ivory and important evidence that the ban would persuade third countries to impose stringent bans and support third countries that had done so; (ii) that, therefore, the precautionary principle was engaged; and (iii) that, although the bans interfered with the rights of owners of ivory so as to engage the right to peaceful enjoyment of possessions, guaranteed by article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to respect for property, under article 17 of the Charter of Fundamental Rights of the European Union, they remained justified and proportionate under article 36 TFEU.
On the claimant’s appeal—
Held, appeal dismissed. (1) The political and diplomatic evidence, which Parliament was eminently well placed to evaluate, provided strong justification for both the domestic and the international trading bans contained in the Ivory Act 2018. The judge had been entitled to conclude that the relevance of the trading bans lay primarily in their moral and diplomatic impact upon the international plane and that the bans in the Act, even as yet unimplemented, were exerting real and not hypothetical effects. No less restrictive but equally effective methods were available, since any broadening of the exceptions, which necessarily implied a weakening of the trading prohibitions, would risk weakening the international political and diplomatic effort to persuade third states to impose equally stringent trading bans. Since Parliament had not adopted a total prohibition on all trade, but accepted in large measure a compromise solution, it properly balanced individual rights with the broader political and diplomatic objectives (paras 76–78, 85, 116).
(2) The precautionary principle was a broad approach adopted by states to mitigate identifiable risk which did not only apply where it was specially invoked before the event. There was no discernible reason in law or logic why the risk should always be a future one, yet to eventuate. In the present case the risk had already materialised since elephant numbers were rapidly declining notwithstanding international efforts, but it was also a continuing and hence future risk. Steps were needed immediately to prevent the situation worsening and to halt and reverse the negative trend in African elephant populations. Parliament was acting within its margin of appreciation or discretion. The judge had been correct so to find. When the evidence was insufficient, inconclusive or imprecise, yet a risk of environmental harm remained likely, a state was competent to act pre-emptively to address the identifiable risks. The chain of causation between the action of a single state and the restoration of elephant numbers in Africa was, by its nature, complex and hard to prove exactly. Yet, the risk to which the United Kingdom was responding was well accepted at the international level and the chosen mechanism, based upon diplomatic and moral effects of taking leadership, was widely acknowledged. The absence of hard scientific data could not, in context, amount to an obstacle to the United Kingdom taking precautionary measures justified on largely diplomatic and political reasons (paras 91, 93, 95, 116).
(3) Where fundamental rights were engaged, namely to respect for property, under article 17 of the Charter, and enjoyment of possessions, under article 1 of the First Protocol to the Convention, in a case concerning the control of use of property rather than expropriation, the state’s obligation to compensate those adversely affected was relatively weak when the object of the measure was to restrain the use of property in the public interest, a test of fair balance being applied. There was no obligation upon Parliament to introduce a compensation scheme where the decision to defer the coming into force of the 2018 Act was a deliberate step taken to assist those with ivory to sell and thereby realise its value during a lengthy transition period. A compensation scheme would also have undermined the international effort to curb the ivory trade (paras 112–114, 116).
Thomas de la Mare QC and Eesvan Krishnan (instructed by Constantine Cannon llp) for the claimant.
Sir James Eadie QC, Hanif Mussa and Daniel Cashman (instructed by Treasury Solicitor) for the Secretary of State.