Supplementary memorandum submitted by
the Environmental Investigation Agency (EIA)
1. Since EIA made a submission to the Environmental
Audit Committee's Inquiry on "Forests: the future role of
carbon markets in their protection and the timber trade",
on 10 October 2008, significant developments have occurred regarding
legislative measures to address Europe's role as a market driver
of illegal logging. In order for the Committee to take these into
account, EIA feels several issues and points of interest need
to be clarified as a matter of urgency.
2. On 17 October 2008, the European Commission
(EC) issued a Proposal for a Regulation laying down the obligations
of operators who place timber and timber products on the market.i
While the action of finally issuing proposed legislation represented
progress, EIA considers the substance of the EC's proposal to
fall woefully short of what is required to effectively and permanently
tackle the problem of Europe's illegal timber market.
3. In November 2008, EIA issued a briefing
paper entitled "Due Negligence",ii outlining our core
concerns with the EC's Due Diligence approach, and making clear
and simple recommendations on how to make the framework proposal
both workable and effective. EIA was also invited to present a
summary of this briefing on 21 January 2009 at a Chatham House
meeting to discuss the EC's proposals. Copies of both the briefing
paper and the presentation are available on the Chatham House
website.iii
4. Chiefly amongst EIA's concerns is the
fact that the EC's proposal does not prohibit illegal timber,
meaning illegal timber will remain legal in the EU market if the
regulation is passed without amendment. In fact, not one of the
obligations in the EC proposal actually relates to illegal wood
itself. Instead, the EC propose to regulate "operator behaviour",
and procurement systems and processes, rather than the actual
problem—illegal timber.
5. EIA's briefing also highlighted how vagueness
and lack of clarity in the Regulation on what a Due Diligence
and Risk Assessment regime actually constitutes will result in
massive variability of standards, implementation, enforcement
and penalties for non-compliance across member states. Circumvention
through emerging laundering hubs is the likely outcome. Chatham
House has also highlighted how this variability is "almost
certain to lead to some member states emerging as vulnerable entry
points for illegal products—as they have in the past",
and that "the whole system will be only as effective as the
first entry point in the EU member state which is the weakest
at enforcement".
6. Because only the first company to place
timber on the market must comply, and illegal timber is not illegal
within the market, the EC's Due Diligence approach will only be
as strong as its weakest point, and illegal timber that slips
through those weak points is unenforceable thereafter, and can
be freely traded throughout the EU.
7. Variability will also prevent the regulation
setting clear and common rules across the community, and sets
the scene for an uneven playing field in the EU market, despite
the fact that the proposal repeatedly claims that common and clear
rules for all are core to its aims.
8. Fortuitously, the significant weaknesses
of the EC proposal have been identified by the European Council's
Committee on the Environment. This Committee has responded in
a responsible manner, and has passed amendments that would both
clarify and strengthen the due diligence regime, but would also,
importantly, make it a criminal offense to make illegal timber
available on the market.
9. While these amendments have yet to be
passed by the Plenary of the European Parliament with a co-decision
by the Agriculture Council of Ministers, the prohibition element,
in particular, offers a credible and real opportunity for member
states. This will allow Ministers to bring in effective, clear
and well targeted measures that will bring accountability to,
and underpin, the entire legislative approach. Without such a
prohibition EIA feels alternative measures will unravel, resulting
in a return to the bad old days of rogue European timber traders
profiting from systematic complicity or involvement in crime.
10. Yet, despite the clear opportunity presented
by the European Parliament Environment Committee's amendments,
EIA is concerned that the UK government may intentionally ignore
the opportunity, in support of the weak EC proposal.
11. At the time of writing, the government
has not yet consulted on the EC proposal and claims not to have
developed a formal position on any legislative option. It has
suggested to MPs and EIA supporters that it supports a prohibition
and conversely, has clearly expressed its intention to support
the EC's original proposal, which does not include a prohibition.
EIA considers this to be contradictory.
12. For example, in its 20 December 2006
submission to the EC's online consultation on additional legislative
options, the government said a prohibition establishing an offence
related to the import, export, transport, sale, receipt, acquisition
or purchase of illegal timber and timber products would be effective
and would prevent circumvention.
13. Furthermore, in a January 2008 letter
to an EIA supporter's MP, the Minister for the Natural and Marine
Environment, Wildlife and Rural Affairs, Mr Irranca-Davies wrote
"Defra has pressed the case for legislation that would make
it an offence to place illegally produced timber on EU markets",
adding that "the Government has made public its response
to the EC consultation indicating that this option [the Lacey
Approach] should be of considerable interest".
14. However, more recently the government
seems to be advocating for the EC's model, under which illegal
timber will not be prohibited, and will remain legal within the
EU market. At the EAC Inquiry on 3 March 2009, Mr Irranca-Davies
said "We think the due diligence approach is very much a
workable model, but an achievable one ..." adding that "this
is what we are focussing on", and, worryingly, "we have
been pushing very hard on the model I have described, and will
continue to do so".
15. In the same 3 March 2009 EAC Inquiry,
Mr Irranca-Davies also suggested that the government was "not
going down the line of a massive octopus of some mechanism, of
huge burden", in an apparent reference to a simple prohibition
establishing the offense of making illegal timber available in
the market. This suggests the government has already decided it
does not want illegal timber to be illegal after all. The presentation
of a prohibition as some form of mythical beast also indicates
the government intends to justify its position through scare tactics,
and may have a limited grasp of the opportunity offered by a prohibition.
16. The model the Secretary of State described
is indistinguishable from the EC's original proposal, focussing
on Due Diligence obligations that: do not require companies to
prove the legality of their timber, do not regulate illegal timber
in any way once on the market, and cover only companies that first
place timber on the EU market.
17. These new positions have been espoused
despite the fact that the government has recently told EIA it
has not yet formed a position, and that it correspondingly plans
to consult on the EC proposal and the amendments made by the European
Parliament's Environment Committee around mid-March 2009.
18. EIA is concerned therefore that the
planned consultation will merely be a process of rubber-stamping
the government's stated support for the EC's weak Due Diligence
approach.
19. Added to these serious concerns, the
Secretary of State has provided apparently uninformed information
to an MP regarding the legal ramifications of the EC legislative
proposal. In his 10 November 2008 Written Response to a parliamentary
question tabled by Mr John Leech MP, Mr Irranca-Davis claimed
the EC proposal would require timber traders "to ensure that
the timber they buy and sell is legally harvested", and that
once passed the "new requirements will ensure that legally
harvested timber only is traded in the EU".
20. These claims would seem to misrepresent
the legal ramifications of the EC proposal the Secretary of State
is backing. In fact, Article 3, Paragraph 1 of the proposed Regulation
states that operators (only those who place timber on the market
for the first time and not all operators) should "minimize
the risk of placing illegal harvested timber and timber products
on the market".
21. The European Parliament's Environmental
Committee has recognised this significant deficiency, and has
duly amended the regulation to apply to "operators who place
or make available timber and timber products on the market",
and to clarify that "Operators shall ensure that only legally
harvested timber and timber products are made available on the
market".
22. EIA therefore advises the EAC to clarify
this issue with the Government and to seek answers on whether
or not the UK will prohibit illegal timber, by supporting amendments
made by the European Parliament's Environment Committee. EIA also
seeks answers regarding how the UK government can have an actual
position without a formal consultation with stakeholders.
REFERENCES:
i http://www.illegal-logging.info/uploads/flegttimberproposaloct08.pdf
ii EIA's "Due Negligence" briefing
is available at: http://www.illegal-logging.info/item_single.php?
item=document&item_id=702&approach_id=26
iii EIA's Presentation to a Chatham House informal
Roundtable discussion is available at: http://www.illegal-logging.info/item_single.php?item=presentation&item_id=341&approach_id=26.
5 March 2009
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