UK Due Diligence legislation: Where do we go from here?

13 October 2021

UK Due Diligence legislation: Where do we go from here?

The effectiveness of the United Kingdom’s system to impose due diligence obligations to prohibit the import of commodities that cause deforestation will depend, at this point, on the protective detail that the Department for Environment, Food and Rural Affairs (DEFRA) manages to integrate into relevant secondary legislation.

In the UK, due diligence provisions are part of the wider Environment Bill. When the House of Commons voted against broadening the scope of due diligence obligations, NGOs hoped the House of Lords would amend and strengthen the draft bill. Specifically, they wished for the scope to be broadened from illegal deforestation to all deforestation, for provisions to prohibit also the import of goods tainted by human rights abuse, and for financial institutions to be included among the operators targeted.

It was not to be. An active House of Lords debate saw Peers energised about the issues surrounding deforestation, calling out the shortcomings of the current proposal, and making strong interventions that are now part of the Parliamentary record. But the issue of human rights abuse, and the shared responsibility of financial institutions did not make it to the 15 September vote, so the Bill ‘ping-pongs’ back to the House of Commons with its deficiencies preserved.

Barring the unlikely possibility of the Government strengthening a proposal when they have won this round, the opportunity to secure greater protection now falls to the drafters of secondary legislation. How the details are defined – which commodities are affected, for instance, or what size companies are implicated – are devils that could sink, or uplift, the Bill’s due diligence objectives.

Ideally, the definition of the due diligence requirements must avoid, for instance, using certification schemes to tick the ‘legal’ box, and instead requiring meaningful examination of supply chains. It is also important that a broad scope of commodities is included; it would be illogical to prohibit forest destruction for one type while turning a blind eye to others. Also, actual deforestation is rife with violations of land tenure, of Indigenous Peoples’ rights, of free prior and informed consent and of participatory rights; these serious issues must figure in definitions of legality as well.

Consolation can be found in the fact that that the parliamentary process drew focus to the vital issue of deforestation, creating a caucus of motivated MPs and Peers, and has led to interest in creating an all-party parliamentary group (APPG) on global deforestation. It is hoped that these prove useful resources/catalysts to keep the debate active and to pin down the importance of broadening the scope of due diligence details.

New Smallholders briefing! To halt deforestation, forest degradation and the destruction of other ecosystems, the EU will need to deliver a smart and comprehensive mix of demand- and supply-side measures. This report explains why involving and supporting smallholders would be a good start.

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