Ghana CSOs comment on subsidiary legislation for implementing UK’s Environment Act

When the United Kingdom (UK) finally seceded from the European Union (EU) on January 31, 2020, it was not just members of the EU who were concerned about the impacts of the move in the region. Environment and climate change activities were equally disturbed about the gap in environmental protection that the UK would experience, once the environmental regulations of Brussels no longer applied.

Yet another group that was bothered was the timber producing countries like Ghana. Stakeholders in the forestry sector including the Ministry of Lands and Natural Resources, Forestry Commission, the timber industry and civil society groups like Forest Watch Ghana and the Legal Working Group. Among other things, they were concerned about how UK will handle the Voluntary Partnership Agreement (VPA) in legal timber between the EU and Ghana.

Their concern bothered on the EU’s unfavourable stance to continue the initial process of the VPA, an outshoot of the Forest Law Enforcement Governance Trade (FLEGT). The issue was how the timber trade relationship was going to turn out between the two countries, now that UK is on its own.

But, in less than 24 months after its departure from the EU, the UK passed the Environment Act in November 2021. The Act seeks to, among other things, set a legality standard for the trade in some selected forest risk commodities in a bid to reduce the UK’s footprints in global deforestation and to promote the sustainable production of these commodities.

Forest risk commodities are: globally traded goods and raw materials that originate from tropical forest ecosystems, either directly from within forests areas or from areas previously under forest cover, whose extraction or production contributes significantly to global tropical deforestation and degradation.

The list of such commodities include beef, cocoa, palm oil, paper, soya and timber products, according to the Global Canopy Programme, an alliance of scientific institutions around the world, that focuses on protecting forests and the vital ecosystems services they provide to humanity.

The UK Department for Environment, Food and Rural Affairs (DEFRA) has launched a public consultative process towards the passage of subsidiary legislation to implement the UK Environment Act. Specifically, DEFRA wants contribution on the new, long-term environmental targets, including for air quality, water, biodiversity and resource efficiency/waste reduction under the Environment Act.

In Ghana, Client Earth and the TaylorCrabbe Innitiative have facilitated a Legal Working Group Meeting in Accra, to collate views of civil society organisations working in the Forest and Agriculture sector on relevant issues to be considered in implementing subsidiary legislation to the UK Environment Act.

The First conclusion was on the issue of the scope of the legality definition, which participants at the meeting agreed was narrow and limited to Land Use and Land Rights. They called for the expansion of the due diligence framework to cover areas including sustainability requirements.

In their view, the narrow legality definition has the potential of creating a lower standard under the UK Environment Act as compared to others such as the Draft EU Regulation. The meeting deemed the narrowness of the legality definition as having the potential of creating different standards and requirements for the same commodity depending on the export destination.

They suggested that another way of strengthening the narrow legality criteria, is for the UK and producer countries to form partnerships that will determine the scope of the legality definition, taking into account the existing legal framework.

The second conclusion was on the issue of the list of commodities covered under the UK Environment Act, which the meeting proposed should include cocoa. This is because cocoa is the subject of the Draft EU Regulations aimed at halting and reversing EU-driven deforestation.

The proposal further called for adding to the list, commodities such as rubber, gold, oil palm and cashew, since there is evidence that these commodities contribute to deforestation.

The third conclusion had to do with the issue of applying the due diligence requirements to only large UK companies, or all UK companies. This, the meeting saw as having a potential of creating leakages in the legal framework. The reason being that large companies may end up forming smaller companies to trade on their behalf.  Besides, where small companies are not covered, they can easily buy cocoa that does not meet the certification standards.

Therefore, the meeting insisted that all companies should be covered. And that a due diligence framework for both small and large companies should be developed, even if the requirements vary in degree.

The fourth conclusion focused on the due diligence requirements and the information that would be helpful for farmers and producer country stakeholders, in case UK companies were required to obtain it.

The meeting noted that information on pricing, transparency, labour and other human rights, tax and customs can be included as part of the due diligence requirements to solve the problem of a narrow legality definition. Also, information on the source of the commodity: whether from a farm off-reserve or on-reserve, will be useful.

The fifth conclusion dwelt on public reporting and which information would be helpful if UK companies are required to report on it publicly. Here, the meeting stated that information should include that on human rights such as child rights, child labour and women’s rights, and the source of the companies’ products and their respective quantities.

For the meeting it was also important that apart from confidential information, all relevant information surrounding production and trade should be made available.

The sixth and last conclusion was on the issue of a grievance mechanism in the UK with access to stakeholders in producer countries. The meeting indicated that the establishment of an enforcement mechanism will be helpful, as it will provide producer country actors a procedure through which they can lodge their complaints and have them addressed.

Civic Response, one of the groups that participated in the Legal Working Group meetings, has packaged the six conclusions into a Communique. And on behalf of Forest Watch Ghana, a coalition of NGOs and CSOs working in forestry and other natural resources related areas, Civic Response on March 11, 2022, submitted the Communique to UK DEFRA for consideration.

By Ama Kudom-Agyemang

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