Posts Tagged [2019] EWHC 2951 (Admin)

The High Court on the lawfulness of the proposed ivory ban.

Hot on the heels of yesterday’s post on e-collars, a short note on yet another trade and animal welfare /biodiversity case. In [2019] EWHC 2951 (Admin) Friends of Antique Cultural Treasures v Secretary of State for the environment, food and rural affairs, Justice Jay (‘Jay J’ even though correct might sound a bit too intimate) upheld the UK’s planned ban on ivory trade, stricter than anything in place elsewhere. As a general rule, the Act interdicts the sale of antique worked ivory, that is to say pre-1947 artefacts, unless one of limited exemptions is applicable.

The discussion engages CITES, pre-emption /exhaustion by harmonised EU law, the environmental guarantee of Article 193 TFEU (albeit not, oddly, the issue of notification to the EC), Article 34 TFEU, and A1P1 ECHR.

On uncertainty, Justice Jay refers to the precautionary principle: at 155: ‘we are in the realm of scientific and evidentiary uncertainty, and the need for a high level of protection. §3.1 of the Commission’s 2017 Guidance makes that explicit. Although the evidence bearing on the issues of indirect causation and demand in Far Eastern markets may be uncertain, statistically questionable, impressionistic and often anecdotal, I consider that these factors do not preclude the taking of bold and robust action in the light of the precautionary principle.’

Rosalind English has analysis here and refers even to Edmund de Waal’s novel The Hare with the Amber Eyes which has been on my reading list after my wife recommended it – this is a good reminder.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff., and Chapter 17 (p.308 ff).

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