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

A statutory restriction on trade may satisfy EU proportionality requirements despite limited scientific evidence of its direct effect. The court must assess the current evidence objectively and with an intensity appropriate to the context. It may give substantial weight to Parliament’s assessment of international political and diplomatic matters.

A measure is disproportionate where the desired protection can clearly be achieved equally well by less restrictive means. The state need not disprove every conceivable alternative. Restrictions controlling the use of property do not automatically require compensation. A fair balance may instead be secured by exemptions, transitional arrangements and the importance of the public objective.

The appellant, a company formed by antique-ivory dealers, challenged the prohibitions on dealing in ivory imposed by the Ivory Act 2018. Jay J dismissed its judicial review claim. He held that the restrictions were justified under Article 36 TFEU and were compatible with property rights and the freedom to conduct a business.

The appeal concerned only that second ground of challenge. The central issue was whether the judge had correctly applied proportionality when evaluating the evidence, possible less restrictive alternatives, the deficiencies in the impact assessment, the precautionary principle and the absence of compensation.

1. Appeal dismissed. The judge correctly held that the trading prohibitions in the Ivory Act 2018 were proportionate and lawful. They did not violate Articles 34–36 TFEU, Article 1 of the First Protocol to the Convention, or Articles 16 and 17 of the Charter.

2. A court determining proportionality must assess the evidence objectively and may consider current evidence which was not before Parliament. On appeal, absent relevant new evidence, the appellate court examines whether the first-instance reasoning was justified rather than performing the proportionality assessment afresh. The judge had examined each strand of evidence and assigned weight and a margin of discretion appropriate to its nature.

3. The evidence of a direct quantitative connection between the domestic ban and reduced poaching was weak. The evidence concerning exports was stronger, though not compelling. Those limitations were not decisive because the Act’s principal significance lay in its moral, political and diplomatic effect. A stringent domestic and international ban strengthened the United Kingdom’s ability to encourage comparable action by other states and reduced the risk of displaced demand. Parliament was especially well placed to evaluate that evidence.

4. The precautionary approach did not require conclusive scientific proof of a direct causal chain. It was enough that an identified and internationally accepted environmental risk existed and that the measures had a rational connection with mitigating it. Where evidence is insufficient, inconclusive or imprecise, objective and non-discriminatory restrictions may address a persisting likelihood of real environmental harm.

5. The suggested alternatives, including age verification, wider certification and country-specific export bans, would not have been equally effective. They would have diluted the political and diplomatic force of the prohibition or required complex enforcement. Parliament was not required to disprove every conceivable alternative and was entitled to adopt narrow exemptions following consultation.

6. Deficiencies in the impact assessment did not make the Act disproportionate. Proportionality concerns the objective outcome, not merely the quality of the antecedent process. The evidential deficiency was addressed by material before the court, and the judge reduced the margin accorded to Parliament on matters for which the impact assessment was inadequate.

7. The Act controlled the use of property rather than expropriating it: possession, gifts and bequests remained possible. Compensation was not obligatory. The lengthy transition period, the targeted exemptions, the absence of evidence identifying compensable losses and the risk that compensation would undermine the international policy together supported a fair balance.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the judge’s conclusion that the trading restrictions in the Ivory Act 2018 were proportionate and lawful: [2020] EWCA Civ 649.
2. High Court, Administrative Court: Jay J dismissed both grounds of judicial review. Permission to appeal was granted only on the ground concerning Articles 34–36 TFEU and the relevant fundamental rights. No citation for the High Court judgment is stated.