Irresolute Clay

Shaping the Foundations of Modern Environmental Law

Richard Macrory Hon KC

• Editorial: Hart Publishing
• Año: 2020
• ISBN:
  9781509928125
• Edición: 1
• Categoría: Derecho
• Categoría: Derecho medioambiental

At a time of profound change and rethinking, this book provides insights into how environmental law in the UK has developed into its current form, and considers challenges it will face in the future. Irresolute Clay is not a legal history or textbook, nor a conventional set of legal memoirs. Instead it offers a personal account of the inside stories as experienced by one of the key architects of contemporary environmental law. Taking a thematic approach, it charts fundamental tenets of the subject (such as environmental sanctions, the European dimension, developing the academic discipline of environmental law, and environmental courts and tribunals), from the beginnings of the modern environmental law era in the 1970s to the present day.

1

Early Legal Environmental Activism

A bedroom in a Californian hotel. It’s 1974 and Raquel Welch and film director James Ivory are having a blazing row on the set of The Wild Party. James complains that she is not putting real passion into a love scene with co-star Perry King, but Raquel ripostes that she has been distracted by the bed which is squeaking too much. All eyes now turn to me. I am standing there with a toolbox and it is my job to sort out the problem. Only a few months before I had been at a formal ceremony in London wearing a gown and white bow tie with the Treasurer of Grays Inn declaring: ‘I hereby call you to the Bar and publish you barrister.’ As I gently oiled the springs and tested the bed while cast and crew waited expectantly for me to finish the repair work, I was asking myself what on earth I was doing there.

After qualifying as a barrister immediately on leaving university, I was not then convinced that a full-time career at the bar was yet for me. In any event, London in the early 1970s offered too many exciting possibilities for a 23-year-old. I had long been interested in film production and had the opportunity to work on several Merchant Ivory films. The American director James Ivory and the Indian producer Ismail Merchant had set up Merchant Ivory Productions in the 1960s and it was later to become one of the most long-lasting and successful independent film companies. These were still early days in the life of the company and I initially worked in a lowly capacity as a production assistant on Autobiography of a Princess filmed in London and starring James Mason and Madhur Jaffrey. On their next production, The Wild Party, I moved up the ladder a little and was assistant art director.¹ It was an eight-week shoot and I had never worked so hard or so intensely, returning to London physically exhausted but full of rich stories about the extraordinary world of film-making. Independent film production in the UK at the time was full of uncertainties and frustration and did not offer any real security. Law was still in my blood, so I kept my hand in, becoming a freelance legal columnist for an insurance magazine and the occasional law teacher, including a rather surreal period at the Lucy Clayton School of Fashion where I introduced bemused young women to the basics of divorce and planning law.

The 1970s saw the emergence of many new single-issue pressure groups in the UK, a more focused development from the 1960s revolution and involving activists who wanted to engage in new approaches to policy change but from outside mainstream political parties. Friends of the Earth (FOE) had set up an office in the United Kingdom in 1971, two years after it had been founded in San Francisco and, at the time, was the only environmental organisation in the UK to employ an in-house staff lawyer. This was probably due to the group’s US origins where law and the use of the courts was an inherent part of environmental campaigning. In contrast, British conservation bodies had tended to focus much more on policy and political engagement. In my last year at university I had already been impressed and attracted by FOE’s new style of environmental campaigning, based on hard research that was combined with original and witty demonstrations. It was focused on core issues about the way we used resources rather than nature conservation and the protection of rural areas which had tended to dominate the concerns of many existing environmental organisations in this country. There was a small London office, as well as a growing number of semi-autonomous local groups. Dominic Sandbrook’s social history of the early 1970s in Britain perfectly captures the impact of FOE as a new style of environmental group: ‘Friends of the Earth succeeded because it was daring, irreverent, clever and often funny; crucially it was also highly decentralized, allowing local activists to set their own tone. It was a new kind of organization – assertive and dynamic rather than nostalgically conservationist, aiming not just to preserve what was left of nature, but to roll back the tide of industry and pollution.’² FOE had established itself as a limited company by guarantee which gave it the freedom to engage in political campaigning without the restraint of charity rules and almost as soon as it began operations in London, the opportunity arose for one of the most iconic environmental campaigns of that decade. Schweppes had announced it would no longer sell drinks in returnable bottles but was moving to disposable, non-returnable containers. FOE condemned the action as environmentally regressive and, in 1971, secured enormous publicity by organising the return of thousands of non-returnable Schweppes bottles to the doorsteps of their headquarters in London. I had spent much of my childhood in the 1950s collecting old bottles and doubling my pocket money by reclaiming the deposits and I found what FOE was doing inspiring and timely. My old university colleagues later told me that I was the only one in my particular group of friends reading serious books about the environment which were then being published. Max Nicholson’s The Environmental Revolution – A Guide to the New Masters of the Earth, published in my second year as a law student, had struck many chords.³ Nicholson was a distinguished British ornithologist, who had been director general of the Nature Conservancy, set up by the government in 1949; he had been involved in many international governmental initiatives. The book traced the history of the conservation movements from the early twentieth century and was a lengthy, sober analysis of the environmental challenges facing both this country and the world. But despite their successes, Nicholson argued that the urgency of environmental pressures meant that we were on the threshold of a radical shift in thinking about the environment: ‘It will no longer be sufficient to preach mainly to the converted and the readily convertible, since it is not they who are in the main responsible for the current widespread misuse and mismanagement of land and of natural resources, nor for the persistence of stubborn prejudices and inhibitions against adopting a more objective and scientifically defensible view of nature and man’s place in it.’ The book contained a great deal of practical advice on changing the underling politics and had a rational and optimist tone which I found compelling.

I was still wondering whether I should now commit myself to the life of a practising barrister when there was a chance meeting which, in retrospect, was the critical turning point in my subsequent career. In 1975, at a party in south London, I happened to meet a woman whom I had known at university. She was now working as a researcher for FOE on packaging issues and I said that I always meant to use my legal skills to assist them. She told me they already had a full-time staff lawyer and there the matter seemed to end. But the next day she rang to say their lawyer had suddenly decided to leave, she had mentioned my name to the director and he said I should come in as soon as possible. FOE was then located in 9 Poland Street in the heart of Soho. It was a building owned by the Rowntree Trust who had imaginatively decided to help kick start new pressure groups, not with financial grants, but by providing rent-free offices with common facilities such as meeting rooms and photocopiers. I had never visited a pressure group before and rather nervously climbed three floors passing the offices of groups such as Gingerbread (a charity for single parents) and Social Audit (conducting research on freedom of information) until I reached FOE. It then had about ten full-time staff, occupying two crowded rooms crammed with papers, people constantly on the telephone and the haze of cigarette smoke (this being the 1970s). It felt like the offices of a busy newspaper and, in a small back office, sat its new director, Tom Burke. Tom had studied philosophy and physics at Liverpool University – he would later say that philosophy taught him how to think and physics how to count – and had been involved in the local FOE group in Liverpool before moving to London. I explained my background and Tom told me to go and talk to the campaigners to explain what I had to offer. The next day they had a staff meeting and decided to invite me to join as the staff lawyer, an offer I readily accepted. The next three years proved to one of immense excitement and experimentation – and making long-lasting friendships with a group of highly intelligent and motivated individuals. The way that FOE analysed some of the major environmental challenges of the day such as transport, energy and agriculture was often well ahead of its time and the fundamentals continue to resonate today.

FOE at that time avoided taking judicial reviews in the courts – the judiciary were then less sympathetic to environmental claims and the prohibitive costs and inherent risk of litigation to a small organisation was simply not worth the gains that might be made. However, the legal perspective and expertise that FOE could bring to its campaigning gave it a distinct edge. Environmental law itself was beginning to change in this country and the Control of Pollution Act 1974 had recently been passed, the first piece of environmental legislation trying to address all the key areas of pollution (waste, water, noise and air), though not yet in a fully integrated way. The Act built upon laws which had existed for many years, but for the first time incorporated principles of public access to environmental information and public participation which had been largely lacking in previous laws and almost 20 years before the United Nations 1998 Aarhus Convention on the subject.⁴ We decided it would be helpful to publish a citizen’s guide to the new law and the opportunities it could provide for members of the public and local environmental groups. Polluters Pay – The Control of Pollution Act Explained was written by myself and Bogus Zaba, a scientist involved in one of the local FOE groups in Wales. It was a challenge producing a succinct book which was legally authoritative but accessible to non-lawyers and I took some delight in turning the intricacies of complex statutory text into readable flow diagrams. It was also the first time that I had come across the peculiarity of UK legislation under which an Act could be passed into law, but the Secretary of State was then allowed to bring its provisions into force by commencement orders at dates of his or her choosing. Without the internet, it was not easy to keep track of these orders which appeared in dribs and drabs several years after the Act was passed, sometimes just applying to the odd section or subsection and I had to spend many hours visiting Her Majesty’s Stationery Office in Holborn to obtain the latest information. The need for a delay between the period when an Act is passed and actually comes into effect is understandable as institutional arrangements have often to be adjusted. However, the amount of discretion given to government in the power to make commencement orders makes for complexity and is open to abuse. In countries such as the United States, legislation normally comes into force on a set date and if government wishes to delay it must come back to Congress to justify itself. Most members of the public are unaware of these processes and they are even more obscure to anyone outside the UK. European Union legislation often requires Member States to send to the European Commission the texts of national legislation implementing the law in question. Certainly in the environmental field, there were times when the UK government informed the Commission of national laws but deliberately failed to explain that, although they had received Royal Assent, they had no legal effect since commencement orders had not yet been issued. It took several years before the Commission cottoned on to the deception.

FOE local groups appreciated Polluters Pay and it even received positive reviews in the trade press which helped to boost FOE’s reputation as a serious organisation rather than a group of bohemian eccentrics:

‘The book is sound and appears to be faultless’ (Waste).

‘In using the law as a weapon against pollution, its authors aim to increase the confidence and effectiveness of anyone who is concerned with environmental issues, while avoiding the emotional arguments which have been the downfall of many environmental groups in the UK’ (Materials Reclamation Weekly).

Air pollution is now one of the dominant environmental issues in this country. Re-reading Polluter Pays today, it is striking that while the new legislation was fairly comprehensive on waste, water and noise, the provisions on air pollution were almost negligible. One of the reasons was that, at the time, there was a degree of complacency in government on the issue. Smog and smoke, largely from domestic sources, had been a major problem in the UK since the nineteenth century and the Clean Air legislation of the 1950s and 1960s had been a significant factor in bringing apparently unpolluted air to London and other urban areas. Many of the senior civil servants I met at the time had vivid memories of urban smog episodes in their youth and often referred to their success in dealing with the problem. Less visible forms of pollutants such as NOx from road traffic were simply not high on the agenda but, in retrospect, if the Control of Pollution Act had dealt with the issue far more comprehensively, some of the contemporary problems of air pollution facing this country might have been avoided.

Polluters Pay was focused on pollution control law but, at the time, FOE deliberately did not run mainstream campaigns on pollution as such. Instead, it was concerned with core issues which ultimately gave rise to environmental pollution and degradation – with campaigns on Energy, Transport, Resource Use, Agriculture and Wildlife Protection. The most visible feature of the Wildlife campaign, which attracted wide public support from all ages, was ‘Save the Whale’. FOE challenged the prevailing science used by the International Whaling Commission (IWC) in the way it set quotas for killing different species of whales. Demonstrations were organised when the IWC held meetings in London and one of the campaigners told me one morning they were planning to demonstrate outside the Japanese embassy dressed as Japanese warriors who were committing hari-kari with a mass of fake blood. I advised that the police would probably not find this acceptable. The Wildlife campaign had also been particularly influential in the development of the Endangered Species Act 1976, which introduced new licensing controls for the import of endangered species and products made from them. My predecessor at FOE, David Pedley, was a solicitor particularly skilled in the technical drafting of statutory provisions; FOE had helped to secure many effective and detailed amendments to the legislation as it went through parliament. But it also provided a striking example of how a law, when passed, is not necessarily effective unless adequate enforcement mechanisms are in place. A year or so after the law came into force, FOE’s wildlife campaigner saw a fashion shop in Soho selling a new coat made from fur from an endangered species and pretended she was interested in buying it. She knew no import licences had been issued by government and, feigning innocence, asked the shop owner how they were selling the item as she thought there were new laws in place prohibiting this. The owner hinted that it was an illegal import. She then immediately rang Customs and Excise who said they had no jurisdiction beyond the ports and that illegal selling in shops was a matter for the police. When she reported the matter, the local police replied they had no knowledge of the new legislation saying, rather patronisingly, that they were more interested in live criminals than dead animals. She consulted me and we decided to mount a private prosecution, the first of its kind under the Endangered Species Act. It is a peculiarity of English law that generally, unless there are particular statutory restrictions, anyone may initiate a private prosecution for a criminal offence – no legal interest in the matter is needed and the costs involved are negligible. I was a little apprehensive that the magistrate might consider our campaigner’s initial discussion with the shop was some form of illegal entrapment. Far from it. The shop owner pleaded guilty and was fined, the magistrate praised FOE for its initiative and publicly condemned the police for not bringing the prosecution. The case received considerable publicity in the trade press where many in the industry were still unaware of the new controls. A few days later, the Metropolitan Police rang our campaigner and asked whether she would help to produce a guide on the legislation for their officers. It was a good example of engaging in litigation which had positive results all round.

As part of its concern with transport issues, FOE ran a dedicated cycle campaign designed to encourage more people to use bicycles as a means of transport. Compared to the 1950s, cycle use was in decline in this country due to increased traffic on the roads, and the proper provision of attractive and safe road space for bicycles was still in its infancy – well behind countries such as the Netherlands and Germany. The cycle campaigner, Mike Hudson, brought together leading lights in the design of cycle routes and other facilities to promote best practice. We campaigned for the building of separate cycleways but found to our surprise that the main opposition came, not from groups such as taxi drivers or road hauliers, but from the Cyclists Touring Club (CTC), founded in 1883 and the oldest cycling association in the United Kingdom. In the 1930s the then Ministry of Transport had experimented with the provision of separate cycle paths, but the CTC had mounted strong opposition as they refused to be seen as second-class road users. This long-standing aversion was still in their blood when FOE launched its campaign and we struggled in vain to persuade them that while the insistence on sharing road space with cars was understandable when there were far fewer road vehicles, it was no longer appropriate for today’s traffic levels.⁵ I worked closely with Mike Hudson because it turned out that the law concerning cycles and the provision of cycleways was often complex, obscure and ill-suited to modern requirements. It became an engrossing area of research and my first legal article, published in the New Law Journal in 1979, reviewed some of the conundrums. I found there were few other lawyers fully engaged in the subject apart from one elderly solicitor in the Department of Transport. As the campaign team would discuss policy issues with the civil servants, the solicitor and I would huddle in a corner discussing obscure provisions in the Highways Act and whether, in law, it was possible to convert parts of pavements into cycleways.

We wanted local authorities to provide more cycle racks in the streets, but many were reluctant to do so. In law, a pavement is part of the highway. The installation of any street furniture on pavements is, strictly speaking, an illegal obstruction of the highway unless there is express statutory authority. Trawling through the legislation, I could find legal provisions authorising such items as street lamps, bus shelters, benches and even troughs for watering horses and cattle, but there was nothing about cycle racks. Some authorities were unconcerned, but others were advised by their lawyers that if, say, a blind person walking on a pavement bumped into a cycle rack, the authority could be faced with a legal claim for damages because, in law, it was an illegal obstruction. I persuaded my friendly solicitor in the Department of Transport that a change in the law was needed and was delighted to see provisions included in the Transport Act 1978 which finally authorised the provision of cycle racks.⁶ Striking and original demonstrations had long been part of FOE’s campaigning style and Mike Hudson organised a cycle ride through the streets of Windsor to Windsor Castle to ...

Índice

• Cover
• Dedication
• Title Page
• Preface
• Contents
• 1. Early Legal Environmental Activism
• 2. The Windscale Inquiry
• 3. The Emergence of Environmental Lawyers in the UK
• 4. Environmental Law as an Academic Discipline: Early Sparks
• 5. Practising Environmental Law as a Barrister
• 6. Influencing Public Policy: Parliamentary Select Committees
• 7. A National Environmental Agency
• 8. Academic Environmental Law Comes of Age
• 9. Swirling Worlds: The Royal Commission on Environmental Pollution
• 10. Environmental Courts and Tribunals
• 11. Reforming Regulatory Sanctions
• 12. The European Dimension
• 13. Brexit and Environmental Law
• Published Works by Richard Macrory
• Index
• Copyright Page