This compilation of Richard Macrory's engaging work comprises a selection of public lectures, academic articles, book chapters, a Cabinet Office report and policy briefings. Spanning his notable thirty year career, the book provides extensive evidence of Macrory's intellect, energy and sense of humour.
Macrory is one of the few pioneers of environmental law who are still active in that area. Now Director of the Centre for Law and the Environment at University College, London and a member of Brick Court Chambers, Macrory was the first Professor of Environmental Law in the UK. A founding member and first chairman of the UK Environmental Law Association, specialist advisor to Parliamentary Select Committees in both the Lords and Commons, a long standing member of the Royal Commission on Environmental Pollution, a board member of the Environmental Agency, England and Wales, and most recently, honorary Queen's Counsel for his work on the development of environmental law, it is fair to say that Macrory knows a thing or two about the subject.
One can find no better guide to the winding road along which the subject has travelled than this treasure chest. Neither a textbook nor a monologue, it offers a fascinating overview of the rapid development of the subject, through the lens of Macrory's own work. Grouped around the themes of regulation, institutional arrangements and enforcement, this collection demonstrates that like other emerging areas of law, the development of environmental law has not always followed a coherent, consistent and logical path. Today, environmental lawyers are in demand as latter-day prophets of climate change adaptation, wind and solar energy-use and endangered species protection but it was not always so. Macrory writes of his own experience in the mid 1970s “I well remember meeting at this time a fairly intimidating Law Lord of the old school (now long deceased) who asked me my field of specialism. I naturally replied environmental law, only to be faced with silence and an expression that somehow combined utter incomprehension and slight distaste”.
The book is divided into six parts, each of which begins with a useful summary of the material contained therein. Part I, Regulatory Reform, considers not simply the issues of enforcement and sanction but the very nature of, and justification for, environmental regulation. Including chapters based on revised versions of Macrory's 2001 inaugural lecture at UCL and his 2007 Tercentenary Brodies Environmental Law Lecture at the University of Edinburgh, this Part (the largest of six) articulates Macrory's concern that responses to contemporary environmental challenges could not be conveniently delineated into regulatory and non-regulatory (i.e. largely market-based solutions such as trading schemes). Advocating instead a nuanced concept of “determine and direct” to reflect contemporary regulatory challenges, Macrory argues that any new (and potentially hybrid) mechanism should be subject to the same level of scrutiny for effectiveness and efficiency as that which is applied to more traditional forms of regulation.
Arguably, Macrory's most direct contribution to the development of environmental law has, in fact, been in the area of regulatory reform. Following the Hampton Report on Effective Inspection and Enforcement (2005), Macrory was commissioned by the Cabinet Office to review the range of sanctions and penalties available to regulators, of which there were 56, and local authorities, of which there were 468. Macrory's report, Regulatory Justice: Making Sanctions Effective (Final Report) (2006), which is included in Part I, proposes reforms which are designed to increase consistency in sanctions, to reflect the risk-based approach to regulation and the broader regulatory reform agenda of that era. Central to Macrory's proposals which, incidentally, include options which would increase the flexibility available to both regulators and the judiciary, is an insistence on the need for much greater systemic transparency and accountability. It is a tribute to the relevance of the Final Report that all its recommendations were accepted by government: the Regulatory and Sanctions Act of 2008 enabled ministers to confer on regulators new civil sanctioning powers and following a DEFRA consultation process, the Environment Civil Sanctions Order of 2010 gives the Environment Agency (and Natural England) the power to impose a range of sanctions, all of which are recommended in Macrory's Report.
Part II, Institutional Reform and Change, considers governance issues. Acknowledging that it is all too easy for politicians to initiate change to the structures of government instead of delivering effective policy, Macrory recognises that there are times at which institutional change is necessary in order to enable institutions to deliver new environmental goals. His report, Modernizing Environmental Justice (2003), proposes modest reform to the judicial system. For more than 20 years, the establishment of a new environmental court had been mooted. Macrory is not convinced that civil environmental matters merited the creation of a special court, nor that judges in the Administrative Court were incapable of handing environmental public law matter effectively. Arguing that criminal environmental prosecutions should remain in the criminal courts, Macrory does a great service both to environmental law and to English law more generally by suggesting, albeit implicitly, that environmental law is not so special, sacred or complex that it merits its own court. Instead, it is clear from his work that environmental law is part of dynamic and constantly evolving English legal tradition and that broadly, it deserves no more or no less special treatment than any other area of law.
Indeed, the notion that law should serve society is at the heart of Macrory's work. Also in Part II is his 2004 report, Transparency and Trust – Reshaping Environmental Governance in Northern Ireland, in which Macrory proposes the creation of a distinctive structure of environmental governance, designed to serve the region as it emerged from years of conflict. That Report deals not simply with environmental regulation but with arrangements for political accountability through Assembly select committees and audit bodies. Macrory found that the rationale for some of the divisions of responsibility in Northern Ireland were as much a product of the demands for maintenance of the political balance as there were of rational choice. The Report formed the basis of a public consultation exercise which led, in turn, to the establishment by the Northern Ireland government 2006 of an independent review of environmental governance, under the chairmanship of Tom Burke CBE. The Burke Review's final report, Foundations for the Future (2007) recommended the establishment of a legally independent environmental protection agency and the creation of a new environmental tribunal for Northern Ireland. The details of these recommendations are now primarily of historical interest but central to Macrory's approach is an emphasis on the twin pillars of transparency and accountability in what was clearly a troubled landscape.
The remaining Parts cover the dynamics of environmental law, the courts and the environment, Europe and the environment and supra-national enforcement of environmental law. The themes of implementation and enforcement, at national, European and international levels, have been rehearsed extensively elsewhere and Macrory does not provide detailed analysis but offers, instead, his own perspective on the development of environmental jurisprudence.
It is hardly surprising, given Macrory's background in English and EU law, that the book includes few references to international environmental law. It too is developing rapidly. Environmental protection is now an established element of public international law: more than 20 cases have reached international courts since 2000, courts no longer shy away from arguments based on environmental protection and there is no doubt that extensive protection for the environment exists in international law, albeit in an uncoordinated collection of legal instruments. Greater use of international law sources would strengthen this text but that is a minor gripe.
I read this book in one sitting. It is rare to find a volume which consumes one's attention for 765 pages – and rarer still that such a blockbuster be a law book. In his foreword, Sir Robert Carnwath suggests that this book should be essential reading for anyone concerned with the development of environmental law and policy. I suggest that this mandate be broadened: the real strength of this book lies in the overarching insights it provides into law and governance. Macrory does this by means of an environmental lens but this book is not solely for environmental enthusiasts – it should be essential reading for anyone concerned with the institutional reform, transparency and accountability in the UK and EU.
