R The Friends of Antique Cultural Treasures Ltd v The Secretary of State for the Department of Environment, Food & Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lord Justice Singh,Lord Justice Green |
| Judgment Date | 18 May 2020 |
| Neutral Citation | [2020] EWCA Civ 649 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/2987 |
| Date | 18 May 2020 |
[2020] EWCA Civ 649
Sir Terence Etherton
(Master of the Rolls)
Lord Justice Singh
and
Lord Justice Green
Case No: C1/2019/2987
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Jay
CO/1273/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Thomas de la Mare QC & Eesvan Krishnan (instructed by Constantine Cannon LLP) for the Appellant
Sir James Eadie QC, Hanif Mussa & Daniel Cashman (instructed by Government Legal Department) for the Respondent
Hearing dates: Monday 24th & Tuesday 25th February 2020
Approved Judgment
Sir Terence Etherton MR, Lord Justice Singh &
A. Introduction/Issue
This is an appeal from the judgment (“ the Judgment”) of Mr Justice Jay (“ the Judge”) who dismissed a claim challenging the lawfulness of trading restrictions contained in the Ivory Act 2018 (“ the Act”) which, when brought into force, will introduce wide ranging prohibitions on the domestic and international trade in ivory.
The thrust of the challenge before the Judge was that the prohibitions in the Act went too far and were disproportionate. It is common ground that in principle the trading bans infringe Articles 34 and 35 of the Treaty on the Functioning of the European Union (“ TFEU”) which prohibit import and export restrictions on trade in goods between the EU Member States (including for this purpose the United Kingdom, which formally left the EU on 31 January 2020 — see paragraph [7] below). It is also common ground that the prohibitions in Articles 34 and 35 do not apply where the trading restrictions are justified on one or more of the grounds set out in Article 36 TFEU and that this includes restrictions justified upon the basis of safeguarding the welfare of animals. Where a Member State invokes the justifications in Article 36 the measure adopted must meet a test of proportionality. The question arising in this appeal is whether the Judge applied the proportionality test correctly.
The appellant mounts a series of challenges to the reasoning of the Judge. The central complaint is that there simply was not and is not sufficient evidence of a proper, scientific, nature to justify the trading bans and that the Judge erred in concluding otherwise. The complaint is directed at (i) the adequacy of the evidence supporting the justifications relied upon to justify the trading bans and (ii) the question whether less restrictive and intrusive but equally effective measures could have been adopted by Parliament than the stringent prohibitions actually imposed.
The appellant also directs a series of more specific criticisms at the approach adopted by the Judge to the proportionality test. There is a degree of overlap between these complaints and the overarching complaint that the evidence base was insufficient. The criticisms of the analysis of the Judge can be grouped under three headings: (i) wrongful use of the precautionary principle and the acceptance of inadequate evidence to support the bans; (ii) failure to take account of the failings in the Impact Assessment (“ IA”) which preceded the Bill and the according of too much deference to Parliament; and (iii), violation of the principle of respect for property and the wrongful failure to require a right to compensation.
In the analysis below, we start by considering the actual evidence that was before the Judge and his evaluation of it (paragraphs [59] – [78] below). We then address the question whether Parliament should have adopted less restrictive measures (paragraphs [79] – [85] below). Finally, we address the complaints about the approach to the proportionality assessment adopted by the Judge (paragraphs [86] – [115] below). Before turning to the substance of the appeal we mention two preliminary matters.
First, in a proportionality challenge it is well established that the court will objectively assess the evidence for itself to determine whether the disputed measure is proportionate. This assessment is based upon the most up to date evidence. This was the position taken by the Judge. Following such an assessment the role of an appellate court is determined by the national procedural rules applicable: Case C-333/14 Scotch Whisky Association v Lord Advocate [2016] 1 WLR 2283 paragraphs [63] – [65]. In this jurisdiction, following a proportionality assessment, an appellate court does not re-perform that assessment but considers whether the reasoning of the judge below was justified: R (on the application of AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47 paragraph [64]. An exception can arise where there is relevant new evidence admitted before the appellate court, for instance because it is more current than that before the first instance judge: see e.g. R (on the application of Unison) v Lord Chancellor [2017] UKSC 51. This does not, however, arise on this appeal and the task of this court is therefore to decide only whether the Judge's analysis withstands scrutiny.
Second, this appeal arises whilst the United Kingdom is in the transition period following exit day from the European Union. It suffices to record that (with limited exceptions which do not arise for consideration in this appeal) until the end of the “ Implementation Period” or “ IP”, which is presently set at 11pm on 31 st December 2020, the same rules apply as they did prior to exit day: see The Queen (Simonis) v Arts Council and others [2020] EWCA Civ 374 paragraphs [9] and [10].
B. The Proceedings before the High Court
The appellant is a company limited by guarantee incorporated for the purpose of bringing this challenge to the Act by its three members and directors all of whom deal in antique ivory. The respondent is the Department of the Environment, Food & Rural Affairs (“ Defra”). It conducted the consultation which led to the drafting of the Ivory Bill which was ultimately enacted by Parliament. As such it appears as respondent to represent the position of Parliament as the relevant decision maker.
The Act received Royal Assent on 20 th December 2018. Under section 43 it comes into force in accordance with provision to be made by the Secretary of State by regulation. As of the date of this judgment the Act is not yet in force.
Permission to claim judicial review was granted on 9 th July 2019. There were two grounds of challenge: (i) that the UK lacked competence to impose more stringent requirements than applied under applicable EU law as the EU regime on trade in ivory was one of complete, not minimum, harmonisation; and (ii), that the trading ban was in breach of Articles 34–36 TFEU in particular when viewed in the light of fundamental rights protected by the European Convention on Human Rights (“ the Convention”) and the EU Charter of Fundamental Rights (“ the Charter”).
The Judge dismissed both grounds. In relation to the first he held that under Article 193 TFEU Member States were empowered to adopt measures more stringent than those adopted by the EU Council on matters concerning the preservation and protection of the environment. In respect of the second he held that whilst the ban imposed on trade fell within the scope of the prohibitions on restrictions on imports and exports under Articles 34 and 35 TFEU, it was nonetheless justified under Article 36, including when considered in the light of the fact that the prohibitions adversely impacted upon fundamental rights contained in the Charter and Article 1 of the First Protocol to the Convention (“ A1P1”).
Permission to appeal was not sought on Ground 1, following the Judge's indication. By the order dated 13 November 2019, the Judge granted permission to appeal on Ground 2.
C. The Facts
— CITES
The UK is a party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“ CITES”), which was signed in 1975 and ratified in 1976. This regulates international trade in specimens of listed species. Those listed in Appendix I are granted the highest levels of protection. Asian elephants have been listed in Appendix I since 1975. The African savanna elephant was first listed in Appendix I in 1990. The elephant populations of South Africa, Namibia, Botswana and Zimbabwe are currently listed in Appendix II but in practice they have Appendix I protection with respect to the trade in their ivory.
Article 14(1) of CITES provides:
“The provisions of the present Convention shall in no way affect the right of Parties to adopt … stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II, and III, or the complete prohibition thereof.”
— EU Competence on Environmental Policy
The EU has adopted measures to address the trade in specimens of endangered species, including that in elephant ivory. Under Article 4(2) TFEU the environment and the internal market are areas of “ shared competence”, defined by Article 2 TFEU as follows:
“When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”
Articles 191 to 193 TFEU establish the competence of the EU in relation to the environment. Article 191(1) stipulates that Union policy in this field shall contribute to pursuit of certain objectives,...
To continue reading
Request your trial
-
The Secretary of State for Work and Pensions v Paul Hughes and Others
...6 of Friends of Antique Cultural Treasures Limited v Secretary of State for Department of Environment, Food and Rural Affairs [2020] EWCA Civ 649; [2020] 1 WLR 3876: “… in a proportionality challenge it is well established that the court will objectively assess the evidence for itself to ......
-
The Manchester Ship Canal Company Ltd v Secretary of State for Environment, Food and Rural Affairs
...the Court of Appeal) in R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649, [2020] 1 WLR at [79] – [80]. Moreover, compensation is not available to MSCC for discharges by United Utilities in breach of any envir......
-
Sunbeam Fishing Limited For Judicial Review
...the international sphere - R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for Environment, Food and Rural Affairs [2020] EWCA Civ 649, [2020] 1 WLR 3876 at [76] - [77] and [113]. [29] The petitioner had not been treated differently or disproportionately when compared wit......
-
Gravis Solar 1 Ltd v The Gas and Electricity Markets Authority
...a decision, or even makes good omissions in it; R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment [2020] EWCA Civ 649 [2020] 1 WLR 3876 at [98–99]. Its primary focus is on the proportionality of the decision rather than on the quality of the decision, ......