Fifteen years ago Richard Macrory was an impecunious young lawyer working
for Friends of the Earth, then embroiled in what was Britain鈥檚 longest-running
public inquiry. The 77-day hearing, a clash between the nuclear industry
and the fledgling environmental movement, was about plans to build a reprocessing
plant at Windscale, now called Sellafield. Earlier this year, as construction
of the Sellafield plant finished, the same affable and engagingly boyish
figure was appointed Britain鈥檚 first professor of environmental law, a matter
of undisguised professional pride.
Though FoE lost the inquiry, the environmentalists won a good number
of the debating points, says Macrory. 鈥楳any of the arguments we were putting
forward were ahead of their time and a lot of them, like our predictions
on the price of uranium, the case for storage rather than reprocessing,
have actually come true. I find it very comforting that intellectually a
lot of the stuff we were saying was actually correct.鈥�
Macrory has come a long way since his very first brush with the English
legal system when, aged 14 and sitting in the public gallery at the Old
Bailey, he brought a rape trial to a halt. 鈥業 was underage and I was taking
notes,鈥� he recalls. On both counts he was breaching court rules and procedure,
and he was shown the door.
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Far from dampening his adolescent enthusiasm, however, the early run-in
made him more interested than ever in the law, which he went on to study
at the University of Oxford. He concedes that there was something inevitable
about his ending up in the legal world 鈥� both his father and elder brother
became barristers. But there was nothing to suggest he would eventually
develop an abiding interest in the laws of pollution control, let alone
in campaigning for better ones.
The turning point came when, as an undergraduate, Macrory spent a holiday
working as a clerk with an American law firm. 鈥業t was 1970. I came into
contact with very bright Harvard and Yale students. They called the shots
and they had very strong ideals. It was a whole new legal world, very informal,
people were definitely not stiff or dressed conventionally.鈥� The antithesis,
in fact, of the sort of clubby profession he was bracing himself to join.
Back in Britain Macrory wasn鈥檛 sure what to do, although he was certain
he didn鈥檛 want a conventional career. He qualified as a barrister but decided
not to practice immediately, preferring instead to write and dabble in the
world of films. As a boy he had shot a number of 8-millimetre films based
on Sherlock Holmes stories, which he produced, wrote, directed and starred
in. At Oxford he had helped to make a short film on a student suicide that
was shown on BBC television. This earned Macrory a union card, which allowed
him to do more work on films. He later became an honorary board member of
Merchant Ivory Productions, and he and his family have walk-on parts in
its latest film Howard鈥檚 End.
His job with FoE came about by happy coincidence. Macrory had been impressed
by the organisation鈥檚 stance over returnable bottles, its first high-profile
and headline-grabbing campaign in the early 1970s. 鈥業 remember being struck
by their cheekiness and by the very strong rational argument behind what
they were doing.鈥� At a party a couple of years later he met an FoE researcher
and mentioned he鈥檇 like to get involved too. 鈥楾hey rang me up the next day
and said 鈥榶ou won鈥檛 believe this but our lawyer has resigned in a huff
and we鈥檙e desperate for a replacement鈥�.鈥�
Nuclear dustbin
It was 1975, a good time to be cutting your teeth on environmental issues.
Heavy lorries, profligate packaging, poor facilities for cyclists, concern
about a 鈥榯hrowaway society鈥� and rapacious industrial development were all
grist to the mill. This was the age of the 鈥榥uclear dustbin鈥�, the term tabloid
newspapers coined for what they thought Britain would become. It was before
the public had heard of ozone depletion and before anyone had really started
worrying about the greenhouse effect.
It was also a time of environmental innocence, before everyone jumped
on the green bandwagon. Macrory joined FoE when a loose-knit coalition of
activists, writers, campaigners and thinkers were beginning to make an impact:
people such as Tom Burke (then the organisation鈥檚 director and more recently
a special adviser to the environment secretary), Richard Sandbrook, Amory
Lovins, Walt Paterson, Robin Grove White, Nigel Haigh and Jonathan Porrit,
all of whom have continued to influence the environmental movement. 鈥楳y
part was to question the campaigners, spot angles we could pursue and play
a slightly detached, cynical role.鈥� Macrory loved it.
He also forged links with more traditional lawyers and law firms. 鈥業t
was a time when if you said you worked for Friends of the Earth they were
actually scared of the image 鈥� then they met these very articulate and sensible
people and this surprised them.鈥� The contact paid off, in more ways than
one.
Against the odds, FoE and other environmental groups forced the government
to hold the Windscale inquiry. 鈥楶eople forget this now but it was only as
a result of classic campaigning and legal argument. There was a Cabinet
subcommittee that actually said there shouldn鈥檛 be an inquiry. We had to
reverse that somehow.鈥� At Macrory鈥檚 instigation FoE had employed barristers
to argue its case using a London firm of solicitors called Denton Hall Burgin
& Warren. The firm has just put up 拢250 000 to enable Imperial
College, London to elevate Macrory from reader to professor. Looking back
on his first contact with the firm, he recalls: 鈥業 still remember trying
to raise money for their fees. They鈥檇 done us a good deal but it was still
a hell of a lot . . . I don鈥檛 think either of us thought I鈥檇 be coming
back in 15 years and claiming them back with a lot of interest.鈥�
Macrory left FoE in 1978. 鈥楾hey paid very small salaries then, partly
to encourage people to move on after a bit 鈥� which is no bad policy because
it is very exhausting.鈥� Nowadays, he notes, the organisation provides management
structures designed to encourage serious careerists.
Macrory practised as a barrister for a while, and though it was more
stimulating than he had expected, it didn鈥檛 satisfy him. Neither did he
relish the atmosphere in the Temple where his chambers were. Sometimes Macrory
was patronised. 鈥業 remember QCs coming up to me and saying 鈥極h, you were
with the Flat Earth Society weren鈥檛 you?鈥�. The carping got to him. 鈥楢fter
all, Friends of the Earth had changed the constitutional face of Britain
and I鈥檇 dealt with secretaries of state.鈥�
Imperial credentials
Coincidentally Lord Flowers, then rector of Imperial College, had decided
to establish a centre for environmental technology and was having trouble
finding environmental lawyers to contribute to its postgraduate course.
Imperial contacted all five law schools of the University of London but
could find no one who claimed to know anything about the topic. In desperation
the college approached the Department of the Environment for help and Macrory鈥檚
name cropped up. During his time with FoE, Macrory had locked horns with
the department鈥檚 civil servants on numerous occasions. But any hard feelings
were not lasting.
Macrory has been with Imperial College since 1980. Early on he organised
a conference on nuclear power and constitutional issues. It was the sort
of event an Oxbridge college might have attempted but Imperial had never
seen anything like it before. Macrory invited people from different legal
disciplines, amenity groups, civil servants and politicians. He even secured
Lord Justice Parker, the judge who was in charge of the Windscale inquiry.
鈥業t put me on the map at Imperial.鈥�
But Macrory has not rejected legal practice completely. Over the past
four years he has been working part time as a barrister. 鈥業 have a place
in Chambers which largely does European Community work and a certain amount
of other specialist cases. Imperial encourages this. It sharpens your mind.
The role of the academic is to explore the issues and say 鈥榟ere are the
questions which need answering鈥� and almost to leave it at that. But when
you are advising someone you have to go through that process and then you
have to come to a judgment. That鈥檚 quite fun. You鈥檙e at the sharp end of
real legal problems.鈥�
Macrory鈥檚 knowledge and judgment are much sought after these days by
parliamentary committees, Whitehall working parties and, since last year,
by members of the Royal Commission on Environmental Pollution 鈥� the ultimate
accolade. He has joined the ranks of the great and the good. He鈥檚 gone 鈥榣egit鈥�.
Tax him on this and he swears good naturedly. More reflectively, he
says: 鈥業t seems to have happened rather suddenly. I was in the field at
the right time so that helped, but it slightly worries me. My ambition is
to be respected but not to become too respectable. On the other hand I鈥檓
fascinated by the power structures and seeing how decision making works.
It is a tremendous privilege to see it from the inside 鈥� I鈥檇 seen it from
the outside.鈥� Does he feel he is being sucked in by the Establishment? 鈥楾here鈥檚
some truth in that but it is up to the individual to make sure their own
views aren鈥檛 compromised. As an independent academic and an independent
barrister you can preserve your integrity.鈥�
He pauses. 鈥榊ou have to remember that there is a generation of people
my age (he is 42) who are actually moving up the system. It may not be apparent
from the outside, you may just think the Establishment just moves inexorably
on and on. But there are differences of attitude 鈥� people who in their 20s
were exposed to some of the changes and who are now under-secretaries in
the civil service.鈥� David Fisk, also in his early 40s and now chief scientist
at the DoE, is a case in point. Many environmentalists acknowledge him as
one of the most astute negotiators on the international stage. He won his
spurs in 1990 during the latest round of deliberations on the Montreal Protocol,
the international agreement to curb depletion of the ozone layer.
Macrory relishes his role as Imperial College鈥檚 sole environmental lawyer
and teacher of the subject. He enjoys working in a scientific institution.
鈥楾he field of environmental law is one of probably only two (law) fields
鈥� the other is intellectual property 鈥� where there is a very intimate connection
with science. Lots of the law is influenced by science.鈥� He warms to his
theme. 鈥楾ake the EC drinking water standards. Once you start putting scientific
standards into the law you鈥檝e got to think, has the law got anything to
offer those procedures, how do you come to those standards?鈥�
In the main, the Community rules on maximum permissible concentrations
of pesticides in drinking water were set because they were at the limit
of detection, not because the concentrations represented a known health
hazard. 鈥業鈥檓 conscious that when you have a numerate standard in the legislation
it acquires a sort of moral sanctity which doesn鈥檛 necessarily reflect the
scientific basis at all.鈥�
Consider critical loads, a concept that is becoming more important in
environmental legislation. It鈥檚 an approach to pollution control that relies
on scientists being able to say that a particular ecosystem can accommodate
so much pollution but no more without suffering adverse effects. 鈥極n the
surface, to a lawyer, it might sound quite sensible. But the scientists
at the cutting edge tell me of the real problems with the concept. It鈥檚
fine for one pollutant, say sulphur dioxide, but once you are dealing with
mixtures no one really knows. That is really valuable for me to know.鈥�
His students may be very bright graduates but normally they haven鈥檛
a clue what a statute is, what a regulation is or how Community or common
law fits in. But they learn fast. 鈥業鈥檓 not turning them into lawyers. I鈥檓
letting them see how lawyers approach problems, what our concerns are. At
the end of the day we鈥檙e not trying to push a particular line; we鈥檙e showing
many of them the complexity of problems and what different disciplines have
to offer.鈥�
Academic corruption
Macrory adds: 鈥榃hat is very refreshing is that they are nearly all highly
motivated. Some are very green; others come from a more conventional engineering
background.鈥� Some have implicit faith that technology will be able to solve
all environmental problems. 鈥楽ometimes that is right. I鈥檓 not part of the
anti-science culture completely, perhaps I鈥檝e been corrupted by being here.
But scientists need to understand why sometimes their solutions aren鈥檛 acceptable.
Life sometimes isn鈥檛 rational鈥�.
When Macrory began his legal career the international dimension of environmental
law was hardly recognised, much less understood. Now Brussels is very much
in the driving seat and some people in Britain are still coming to terms
with it. 鈥楾here was a time in the 1970s and 1980s when many of the people
working for the UK government and dealing with environmental policy didn鈥檛
appreciate the legal significance of what they were agreeing to. European
directives are not simply the equivalent of international policy agreements
where you try to agree and do the best you can. They rightly or wrongly
go much further than that and create very real legal rights. It creates
a whole new set of commitments which you are agreeing to.鈥�
Judging by the evidence from British civil servants presented to parliamentary
committees he advises, this distinction is not always appreciated, even
now. But things are slowly improving. Macrory went to work in the legal
section of the Environment Directorate, DG 11, quite recently. He is conscious
that an increasing number of British officials are following suit, spending
time on secondment in Brussels. 鈥業t gives them a different perspective,
and it exposes EC administrators to the way our administrators work.鈥�
Macrory regards it as significant that the British government is suggesting
a Community pollution inspectorate to carry out audits of individual country鈥檚
inspectors. 鈥楬alf a dozen years ago the very idea of an EC inspectorate
alongside national inspectors would have been rejected out of hand as an
imposition on national sovereignty. Well, that鈥檚 completely changed.鈥�
Britain, he says, is engaged in two very large legal experiments at
present. One is at the Community level. 鈥楩rom the lawyers point of view
there is nothing like it elsewhere in the world: a supranational legal system.
You can view it as a laboratory for new types of regional environmental
law, going far beyond individual national states.鈥� It is particularly significant
for this country, he feels. Britain and Ireland are the only Community states
that straddle the two legal systems: the continental approach founded on
Roman law and our homegrown reliance on common law. 鈥楾he trick is to get
the best of both,鈥� says Macrory.
The other experiment is at a national level. 鈥榃e are transposing all
sorts of concepts and standards that until a few years ago would have been
left to the discretion of administrators and officials to determine, with
the law just providing a framework of procedures.鈥� He sees this as a major
challenge for everyone concerned. 鈥榊ou will have judges and lawyers trying
to interpret very technical language and they won鈥檛 necessarily make the
best job of it.鈥�
He watches with some irritation and amusement the boom in environmental
law practices. Some, he says, are much better than others. Some are learning
very fast, while others have merely renamed departments with a more attractive
title. Of concern, at present, is what Macrory sees as an internal brain
drain. Four senior academic environmental lawyers have recently gone into
private practice. 鈥業 don鈥檛 blame them,鈥� he says, pointing out that an articled
clerk in London can earn almost as much as a lecturer on 拢23 000
a year.
Reviewing his own legal career, the case that interests him most is
not one that found him on the politically correct side, even though he was
a corporate director of FoE at the time. In 1980, he helped advise Shell,
the oil company, when it faced three families suing for damages over lead
in petrol. The company, he recalls, was complying with all the legal requirements
and the families lost the action. But the issues, he says, were ahead of
their time. They centred on difficult questions about the limits to and
extent of corporate liability, an area that is now becoming highly contentious.
鈥楾his is a rich area, legally,鈥� says Macrory. 鈥榊ou are pushing beyond the
current accepted limits of environmental law.鈥�
He is adamant that he will continue with a foot in both the academic
and private practice camps. And should that ever pall, there are always
board games. In the early 1970s, Macrory and a friend designed a board game
that was loosely based on the film Jaws. It became something of a cult classic,
earning a rebuke from The Times, which described it as 鈥榯he worst taste
board game of the year鈥�. The main figures for the game, swimmers 鈥� many
hand-painted by Macrory when he should, by rights, have been mugging up
legal tomes 鈥� had detachable legs. 鈥業f your piece lost a leg it could only
swim in one direction. If you lost both you drifted. It was pretty sick,鈥�
he agrees. Macrory and his partner nearly sold out to Richard Branson, the
entrepreneurial head of the Virgin companies. In the event Virgin鈥檚 decision
not to complete the deal meant Macrory could not retire overnight. British
and European environmental law was the richer, even if Macrory was left
a little poorer than he might have been.