Victor Roy James v The Secretary of State for Environment, Food and Rural Affairs

The preamble to the Ivory Act 2018 (the 2018 Act) describes it as an Act to ‘prohibit dealing in Ivory’. Section 1(1) of the 2018 Act provides: ‘Dealing in ivory is prohibited’. Section 2 of the 2018 Act provides an exemption for pre-1918 items of outstandingly high artistic, cultural or historic value. This is an appeal under section 5 of the 2018 Act against a refusal to grant an exemption certificate under section 2 of the 2018 Act on the grounds that the relevant item is not ‘pre-1918’.

This appellant is a collector and researcher of British surrealism. He owns a 1930s surrealist sculpture by artist Eileen Agar (1899-1991) known as the ‘The Obelisk of Satisfied Desire’ (‘the Sculpture’), which contains within it a carved ivory tusk (‘the Tusk’). The Tusk is accepted for the purposes of this appeal to date to around 1860.

The work is an assemblage of five objects: a metal dish, a decorated candle, a small colander, a model duck and the Tusk.

Section 1 of the 2018 Act provides:

“(1)

Dealing in ivory is prohibited.

…

(5)

In this section “ivory” includes—

(a)

an item made of ivory;

(b)

an item that has ivory in it.

(See further section 37.)

(6)

Sections 2 and 6 to 9 set out exceptions to the prohibition.”

Section 2 of the 2018 Act provides:

“Pre-1918 items of outstanding artistic etc value and importance

(1)

An item that is made of ivory, or has ivory in it, is exempt from the prohibition if—

(a)

the Secretary of State has issued a certificate under this section (an “exemption certificate”), and

(b)

the certificate has not been revoked under section 4(3).

This is subject to section 4(7).

(2)

The Secretary of State may issue an exemption certificate for an item only if satisfied that—

(a)

the item is pre-1918, and

(b)

the item is of outstandingly high artistic, cultural or historical value.

(3)

The following matters are to be taken into account in considering whether the condition in paragraph (b) of subsection (2) is satisfied in the case of a particular item—

(a)

the rarity of the item;

(b)

the extent to which the item is an important example of its type;

(c)

any other matters specified in regulations made by the appropriate national authority.

(4)

An exemption certificate for an item may be issued only on the application of the owner of the item.

(5)

The appropriate national authority may by regulations prescribe institutions that, in the authority's opinion, possess the necessary knowledge and expertise to provide the Secretary of State with advice on applications for exemption certificates.

In this Act “prescribed institution” means an institution prescribed under this subsection.

(6)

An institution may be prescribed under subsection (5) only with the consent of the persons in charge of the institution.”

Section 3 deals with applications for exemption certificates and for referral to a ‘prescribed institution’ to inspect and assess the item. Section 3(2) provides:

“(2)

The Secretary of State must refer an application for an exemption certificate to a prescribed institution if satisfied that—

(a)

the applicant has complied with subsection (1), and

(b)

the item is not one that clearly fails to satisfy the conditions in paragraphs (a) and (b) of section 2(2).

Otherwise the Secretary of State must refuse the application and inform the applicant why it has been refused.”

Section 7 deals with pre-1947 items with low ivory content and provides:

“(1)

An item that has ivory in it is exempt from the prohibition if—

(a)

the item is pre-1947,

(b)

all the ivory in the item is integral to it,

(c)

the volume of ivory in the item is less than 10% of the total volume of the material of which the item is made, and

(d)

the item is registered under section 10.

(2)

For the purposes of subsection (1)(b) ivory is “integral” to an item if it could not be removed from the item without difficulty or without damaging the item.”

Section 38(2) provides:

“(2)

An item that is made of ivory, or has ivory in it, is “pre-1918”, “pre-1947” or “pre-1975” if the item was made before the relevant date (see subsection (3)) and either—

(a)

no ivory was added to the item on or after the relevant date, or

(b)

any ivory added to the item on or after the relevant date—

(i)

was taken from its animal source before 1 January 1975, and

(ii)

was added to the item for the purpose of restoring it.”

The Explanatory Notes to the 2018 Act include the following:

“Section 7: Pre-1947 items with low ivory content

59 This section provides for an exemption to the prohibition on dealing in ivory for items which contain a small amount of ivory – less than 10% by volume – and are largely made of another or other materials. For an item to qualify for this exemption it must satisfy all of the following conditions:

a.

the item must be pre-1947, as defined in section 37(2) and (3)(b));

b.

The ivory is integral to the item and as such is necessary to its overall design and/or construction meaning either that it cannot easily be removed or if removed, that the item as a whole could no longer function as intended. . For instance, this could refer to an ivory inlay or escutcheon on a piece of furniture, or a small ivory handle on a piece of tableware;”]

Section 5 gives a right of appeal to the First-tier Tribunal. Sections 5(3) and (4) provide:

“(3)

An appeal under subsection (1)(b) may be on the ground—

(a)

that the decision was based on an error of fact,

(b)

that the decision was wrong in law, or

(c)

that the decision was unreasonable,

or on any other grounds that are prescribed by regulations made by the appropriate national authority.

(4)

On an appeal under subsection (1)(b), the First-tier Tribunal may—

(a)

confirm the Secretary of State's decision to refuse or revoke the exemption certificate,

(b)

require the Secretary of State to issue an exemption certificate, or to cancel the decision to revoke an existing exemption certificate, or

(c)

remit the decision to refuse or revoke the exemption certificate to the Secretary of State for reconsideration.”

We agree with and adopt the following conclusions by the First-tier Tribunal in Simon Ray Limited v Secretary of State for Environment, Food and Rural Affairs [2024] UKFTT 280 on the correct approach to an appeal under section 5 of the Act [22]:

“a.

It is the Secretary of State who must be satisfied that the item meets the section 2(2) conditions; the Tribunal does not simply decide that issue for itself.

b.

The issue of a certificate is mandatory if the conditions are satisfied. The Tribunal must decide whether the Secretary of State’s decision that an item did not meet either or both conditions:

i.

Was based on an error of fact,

ii.

Was wrong in law, or

iii.

Was unreasonable.

c.

Error of fact

i.

This may relate to either condition.

ii.

The word ‘error’ is the same as ‘mistake’ in this context, as mere factual disagreement by the Tribunal would be inconsistent with the Act.

iii.

The issue should therefore be approached in accordance with E & R at [66], which sets out four requirements:

1.

There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter.

2.

The fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable.

3.

The appellant (or the appellant’s advisers) must not have been responsible for the mistake.

4.

The mistake must have played a material (but not necessarily decisive) part in the decision-maker’s reasoning.

iv.

The second of those requirements must be approached with sufficient flexibility to recognise the subjective nature of the second section 2(2) condition, that the assessor’s opinion is reached without consultation or prior notice to the applicant, and that nor is the opinion seen by the applicant until the decision has been made. Until the applicant sees the opinion and the decision, it will not be known what factual considerations were (or might be) taken into account. There must be a fair opportunity to rebut them with evidence, so long as the need to show a mistake of fact is respected (as opposed to disagreement).

d.

Wrong in law

i.

The possible errors of law include those listed by Brooke LJ in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9]:

1.

Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);

2.

Failing to give reasons or any adequate reasons for findings on material matters;

3.

Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

4.

Giving weight to immaterial matters;

5.

Making a material misdirection of law on any material matter;

6.

Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings; and

7.

[a mistake of fact as set out at (c) above].

e.

Unreasonable

i.

This does, I consider, refer to Wednesbury unreasonableness. The decision must be so unreasonable that no reasonable decisionmaker could have reached it.

ii.

While recognising that the inclusion of this ground is, strictly speaking, superfluous, the other features of the legislative scheme weigh against ‘unreasonable’ bearing a wider meaning.

f.

Powers on appeal

i.

The power at section 5(4) to require the Secretary of State to issue a certificate does not bestow a free-standing decision-making power on the Tribunal.

ii.

Rather, like a mandatory order in judicial review, it exists to avoid an unnecessary decision-making process by the Secretary of State where the outcome is inevitable. Once the conditions are met, the Secretary of State has no discretion. For example, an application might be refused on the basis that an item of accepted outstandingly high cultural significance was made after 1918. If incontrovertible evidence were presented on appeal showing that it was actually made in 1910, then an order requiring the grant of a certificate would likely be appropriate.

g.

Evidence

i.

The Tribunal is permitted to hear evidence to decide the above grounds, and in some cases may be obliged to do so.

ii.

Where the Secretary of State’s decision follows the assessor’s opinion, the appellant may wish to give evidence rebutting assumptions or conclusions by the assessor. An obvious example is given at (f)(ii) above. In some cases this may require evidence to be given by the assessor, or by a representative of the prescribed institution.”

The decision of 21 November 2025 stated as follows:

“The Secretary of State is of the opinion that the item to which this application relates fails to satisfy the conditions in section 2(2) of the Ivory Act 2018. For this reason, this item has not been referred for assessment by an expert.

Section 2(2)(a) of the Ivory Act requires that the item is pre-1918.

The Obelisk of Satisfied Desire is generally accepted to have been created by Eileen Agar in the mid to late 1930s and you have stated that it was made after 1918. The ivory in the item was added at the time the item was made and was not added to the item for the purposes of restoration.

The Secretary of State for Environment, Food and Rural Affairs has decided not to award the item an exemption certificate under section 2(2) of the Ivory Act 2018.”

The grounds of appeal are, in essence, that the Secretary of State erred in concluding that the conditions in section 2(2) were not satisfied.

In particular the appellant submitted that the application for exemption is made in relation to the tribal ivory object which was carved and worked in the 19^th century, circa 1869 and which is of pre-eminent historical and artistic importance due to its context, i.e. that it is set into the Sculpture.

In its response to the appeal, the respondent submitted, in summary, that the ‘item’ that formed the subject of the application is the Sculpture and not the Tusk.

In particular the respondent submitted that:

The tribunal read a bundle of documents of 51 pages.

During the hearing it emerged that a note from the artist had been omitted. This was submitted following the hearing with the tribunal’s permission, and we took it into account.

Mr James described the sculpture as a ‘surrealist assembly’ which consists of five separate objects that are fully formed and worked pieces in their own right, including the Tusk which he referred to as a piece of 19^th century African tribal art. He submitted that he made the application for the tribal work of art (the Tusk) specifically within the context of the Sculpture.

He submitted that the relevant item was the Tusk itself and not the Sculpture and therefore the item satisfied the pre-1918 criteria. The application related to the Tusk itself within its unique context, as an integral part of the Sculpture.

He argued that the Tusk meets the second criterion (outstanding artistic, cultural, or historical value) by virtue of its context, namely its incorporation within the Sculpture. He relied on the concept of contextual definition, submitting that the legal character and importance of an object can fundamentally change depending on its use and setting. He illustrated this by the example of an ivory pen from the 19^th century that could acquire exceptional importance through its use by a monarch to sign a document of major historical importance.

Mr James emphasised that the Tusk was not reworked ivory but an independent object incorporated into an assemblage. He said that he may not have given a full explanation of his reasoning in his application but that the item was the tribal artefact within the sculpture. He submitted that its significance derives solely from that integration and if the Sculpture was disassembled the importance of the tribal artefact is completely lost.

He submitted that this was an unusual case. He said that it was unlikely to ‘open the floodgates’ as the respondent argued, because it was unlikely that others would attempt to deal in ivory by creating a masterpiece and setting the piece of ivory within that.

Mr Cashman set out the statutory context, including that ‘dealing’ in ivory is prohibited and that ‘ivory’ includes both items made of ivory and items which contain ivory.

He submitted that an item containing ivory is only exempt from the prohibition on dealing in ivory if it has an exemption certificate.

He said that this application fell within the category of applications where the criteria are clearly not satisfied and therefore there was no need to refer to a prescribed institution.

Mr Cashman submitted in outline that the appellant could have disassembled the Sculpture and requested an exemption certificate in respect of the Tusk. Then, the Tusk would have satisfied s.2(2)(a), and the question would have arisen whether the Tusk (by itself i.e. not as part of the Sculpture) was of outstandingly high artistic, cultural or historical value under s.2(2)(b). Or, he submitted, the appellant could have kept the item intact as the Sculpture. But then the Sculpture cannot satisfy s.2(2)(a), because the item is not pre-1918. So, the question under s.2(2)(b) would not even arise. Mr Cashman submitted that the appellant chose the latter option. On that basis he submitted that respondent correctly refused the application because the Secretary of State was not satisfied that the item was pre-1918.

Mr Cashman said that the respondent was right to conclude:

Mr Cashman said that the application described the item as being “set into a sculpture” and explained that “[t]he importance of the ivory item derives from its context; [its] incorporation into the sculpture by Eileen Agar”. He said that there is no suggestion that the Appellant considered that the Tusk by itself (i.e. if separated from the Sculpture) would satisfy the criterion in s.2(2)(b). He noted that the notice of appeal itself repeats the submission that the ‘item’ would satisfy the criterion in s.2(2)(b) because it is “set into the surrealist sculpture” and relied on Prof Remy’s description of the Sculpture as “one inimitable object”.

It was submitted on behalf of the respondent that the 2018 Act makes clear provision, in sections 1(5) and 2 that the relevant item might not be solely ivory, but an item that incorporates ivory.

Mr Cashman submitted that identification of the relevant “item” is a matter of substance and common sense, to be assessed by reference to how the object is used, handled, viewed and intended to be dealt with. He argued that, on that approach, the relevant item in this case is plainly the Sculpture as a mixed-material sculpture described as ‘one inimitable object’ which derives its value from the fact that it is a single sculpture made by Eileen Agar.

Mr Cashman submitted that the appellant’s case depended upon an impermissible “hybrid approach”, whereby the requirement in s.2(2)(a) (age) was assessed by reference only to the ivory component, whilst the requirement in s.2(2)(b) (outstanding importance) was assessed by reference to the Sculpture as a whole. He argued that the 2018 Act does not require or permit such an approach. The statutory scheme requires both criteria to be satisfied by reference to the same “item”.

Mr Cashman submitted that the appellant’s approach would undermine the purpose of the Act. He submitted that no doubt many 1920s or 1930s objects incorporate ivory that is pre-1918. Parliament did not exempt items provided that the ivory in the item pre-dated 1918. If the appellant’s approach were correct, Mr Cashman submitted that it would permit the incorporation of pre-1918 ivory into modern artworks which, provided that they were of outstandingly high artistic value, would be exempt items. That would create a new market in ivory items in a manner contrary to the aim of the legislation. He submitted that it would also be more difficult to age ivory if it was positioned in a modern setting, which would make it easier for modern illegal ivory to be used.

Mr Cashman argued that section 38(2) provides express analysis of the legislature’s intent in that an item is pre-1918 only where it was “made” before 1 January 1918 (and that ivory can have been added to the item after 1 January 1918 and it still satisfy that criterion only if the ivory was pre-1 January 1975 and was added for the purpose of restoration).

He noted that the exemption in section 7 for items made pre-1947 only applied where the volume of ivory in the item was less than 10% and the ivory was integral to the item. He argued that this was a further example of the legislature giving express consideration to how ivory might be (integrally or non-integrally) incorporated within an item, in respect of which an application for an exemption certificate (or for registration as an exempt item) might be made.

On that basis he submitted that it would be wrong to suggest that an “item” is considered under the 2018 Act only by reference to the ivory part of the item. He said that an “item” may be a mixture of ivory and non-ivory materials, and the relevant question for the purposes of the relevant exemptions is when the “item” was made. Accordingly, he submitted, the relevant item to be assessed under the 2018 Act is the Sculpture.

He repeated the submissions made in the response to the appeal as to the intention of the Act.

The fundamental issue for us to determine is what is the ‘item’ in relation to which the application was made. If the item is the Sculpture, rather than the Tusk, then the item does not satisfy the criteria of having been made before 1 January 1918.

Section 1(1) of the Act prohibits ‘dealing in ivory’. In section 1, ‘ivory’ includes ‘an item made of ivory’ and ‘an item that has ivory in it’. The relevant item for the purposes of section 2, therefore, must be the item in which the applicant for an exemption certificate wishes to deal.

It is clear from the appellant’s submissions today, from his application form and the pre-application correspondence that his intention in making the application is to obtain an exemption certificate to enable him, if he wishes, to sell the Sculpture. He does not want to sell the Tusk. He cannot, at present, sell the Sculpture because it has ivory in it, and under section 1(5) of the Act ‘ivory’ includes ‘an item that has ivory in it’ and dealing in ‘ivory’ is prohibited.

If more is needed to define the ‘item’ for the purposes of the Act, we adopt the approach suggested by the respondent, i.e. a practical and common-sense approach having regard to how the object is used, handled, viewed and intended to be dealt with. Applying that approach the Sculpture is clearly the ‘item’. The Sculpture is more than a collection of separate objects. Eileen Agar has made a new object, as she states in her notes, the elements of which are all objects that she had in her studio:

“I am now going to make an object called The Obelisk of Satisfied Desire…The elements are all objects which I had around the studio… “

The piece written by Michel Remy notes: ‘Objects are literally making love to create this one inimitable object.’

Having concluded that the Sculpture is the relevant item, it is clear that it does not satisfy the condition in section 2(2)(a) because it was made in the 1930s.

We find that the Secretary of State was right to treat this as an application for an exemption certificate in relation to the Sculpture and the conclusion that the condition in section 2(2)(a) was clearly not met was not based on an error of fact, wrong in law, or unreasonable.