The high court will hear an attempt to block a total ban on ivory trading this week, ahead of the imminent Brexit deadline and amid fears from conservationists that any change could revitalise elephant poaching.
Antique traders, who argue that sales of “cultural heritage” objects have no impact on the market for illegally-plundered tusks, are challenging the government over the 2018 Ivory Act which attracted cross-party support.
The legislation, which has yet to come into force, criminalises trade in all ivory artefacts with a few artistic exemptions. The prohibition was championed by the former environment secretary Michael Gove who pledged to introduce “one of the world’s toughest bans on ivory sales to protect elephants for future generations”.
At present antique items made before March 1947 can be sold with a government licence. The high court challenge partially depends on arguments that the ban breaches European law which still permits antique ivory trading. The case was consequently expedited so that it can be heard before the Brexit deadline of 31 October when the UK may leave the EU.
The claim has been brought in the name of a newly-formed company, Friends of Antique Cultural Treasures (FACT), but funds are being channelled via the British Antique Dealers’ Association (BADA). The dealers also allege that the ban undermines the European convention on human rights by interfering with individuals’ property rights.
BADA’s website states: “To suggest that the legal purchase and sale of genuine antiques is in some way ‘connected to the global illegal trade’ in modern poached ivory is not backed up by substantive facts.”
The organisation accepts sales of legal ivory can mask trade in poached tusks but insists that “specialists with the appropriate knowledge are able to judge whether an item was made in an earlier era”. BADA has therefore proposed “third-party verification for carvings or items comprising mainly ivory”.
Richard Pike, a partner at the law firm Constantine Cannon, who represents FACT, said: “The important thing is to make sure that objects are genuinely antique. BADA says there should be strict enforcement paid for by those who want to trade.
“That would provide assurance that something is of historic value. If you think of a 300-year-old netsuke [carved Japanese ornament] … it’s not going to encourage poaching in the modern world.”
But conservationists and animal rights groups warn that the legal action will send the wrong international signal. Mary Rice, executive director of the Environmental Investigation Agency (EIA), said: “The ban now needs to be implemented. Ivory only represents 1% of the antique trade in the UK. The legal market for any ivory product provides a laundering mechanism for illegal ivory and that stimulates demand.
“The EU is now conducting its own consultation and they are looking at the UK Ivory Act as a benchmark. New Zealand, Australia and Singapore are in the process of closing down their markets. The UK has taken the lead against illegal wildlife crime.”
Andrew Brown, a lawyer who is working with EIA, said: “The legal trade is a cover for illegal trade. It’s relatively easy to disguise new ivory, for example by staining it in tea so it looks old.
“The UK supplies antique ivory to China and Hong Kong which have the largest illegal ivory markets. Dropping the ban would send the wrong message and hamper global efforts to fight poaching. This legal challenge has delayed the law being implemented. According to opinion polls, 85% of the public want the ivory ban brought in.”
A Department for Environment, Food and Rural Affairs spokesperson said: “We cannot comment on the judicial proceedings, but we continue to make preparations to implement the Ivory Act and put in place one of the toughest bans on ivory sales in the world. The elephant ivory trade should be a thing of the past and our ban will help the global effort to protect elephants for future generations.”
The five exemptions permitted under the Ivory Act 2018 are for museum sales, pre-1918 “high artistic” objects, items made before 1947 where the ivory content is less than 10%, musical instruments manufactured before 1975 where the content is less than 20%, and antique portrait miniatures backed in ivory.