Class warrior: Interview with David Greene

David Greene has never shrunk from controversy. In the 37 years since he qualified as a solicitor, he has litigated on behalf of sex workers, Railtrack shareholders, striking miners, a pregnant university student and victims of the Hillsborough football stadium disaster.

Several of these cases had a political dimension, but Greene says he is impartial having ‘upset Tory and Labour governments alike’.

Most recently, he was involved in challenging what Labour party leader Jeremy Corbyn dubbed the ‘grubby deal’, whereby the Democratic Unionist party (DUP) secured £1bn of new Treasury investment in Northern Ireland in exchange for a confidence and supply agreement with Theresa May’s Conservative party. This deal guaranteed that the DUP’s 10 members of parliament would support the Tory government, effectively providing May with an absolute majority. Greene’s client argued, unsuccessfully, that such an arrangement amounted to purchasing votes with public money.

Brexit has also kept Greene busy. He is the Law Society’s lead on Brexit and acted for one of the claimants, in 2016, who argued that parliament – rather than the government through royal prerogative – should decide when and how Article 50 is implemented. Article 50 is the clause in the EU’s Lisbon Treaty that outlines the steps to be taken by a country seeking to leave the bloc voluntarily. Invoking it kickstarts the formal exit process and serves as a way for a country to officially declare their intention to leave the EU.

Greene observes: ‘The passion instilled in the whole issue of Brexit is unfortunately reflected in the “hate mail” that we and others have received. This Article 50 argument is about the rule of law. Is what the executive proposes in giving notice of withdrawal from the EU without further parliamentary assent lawful? Statutes properly passed by parliament are supreme over common law and prerogative. The power of parliament is to both make and unmake laws.’

All this is exciting and – that word again – controversial, not least when we remember that Greene is a senior partner of City firm Edwin Coe. This firm’s website soberly describes itself as a ‘commercial law firm with expertise in specific business sectors’ that provides ‘tailored and integrated legal services across a wide range of practice areas to both UK and international clients’.

All very worthy, but no hint of the firebrand Greene ensuring that the voices of ordinary people– such as sex workers, striking miners or the families of dead football fans – are heard in court. Nor is there any intimation that Greene and his teams of litigators consistently challenge the government in open court.

Greene cheerfully confesses too that he is in once sense a ‘voyeur’. What does he mean when he brands himself as such? He responds:

‘Litigators are voyeurs in that we look in depth, for a short time, into issues, such as the plight of individual shareholders when a business is privatised, and then move on.’

‘Voyeurism’, in the sense he uses the word, is the licensed scrutiny – or witnessing – of the problems of others, and then acting to alleviate them before turning one’s attention to the next case.

How did Greene get to where he is today? Upon leaving school in 1976, he began articles at Edwin Coe and qualified in 1980. Later, through evening class study, he read for a master’s degree in politics at Birkbeck, University of London.

‘If I hadn’t become a lawyer, I would have been a politician,’ he says. ‘I was a member of the Young Communist League [the youth wing of the Communist party of Great Britain] and then joined the Labour party. My practice has allowed me to pursue politics through the courts.’

His commitment to politics is genuine: he has twice (albeit unsuccessfully) stood as a Labour party candidate for parliament in general elections.

He became a partner at Edwin Coe in 1984 – the year that the national miners’ strike began on 5 March. He quickly found himself acting for striking miners at the Ollerton Colliery in Nottinghamshire. This was the scene of the strike’s first fatality when, on 15 March, 24-year-old miner David Gareth Jones died during violent confrontations with the police.

The strike failed, ending almost a year to the day after it began. Subsequently, courts have criticised police conduct during the strike and cabinet papers have pointed to Margaret Thatcher’s government deliberately provoking the strike in order to destroy the power of the unions. Despite this, the strike was the beginning of the end for the mining industry and a baptism of fire for four-year-qualified Greene.

The 1980s were to prove a busy decade. In 1986 a strike by print workers in London failed to defeat Rupert Murdoch’s plans to move production of The Sunday Times and other newspapers from Fleet Street to a modern new plant in Wapping. All the striking workers, some of whom Greene represented, lost their jobs. A year later, he acted for a pregnant Oxford University student in a case that has gone down in legal history as the first High Court hearing to go to appeal and then dismissal by the law lords (this was before the Supreme Court) in just 36 hours.

The case was instigated by Richard Carver, 24, a student at Magdalen College, Oxford, who attempted to prevent his former girlfriend, a 21-year-old woman also studying at Oxford, from having an abortion. He argued that the procedure was unlawful in that the foetus was, in the words of the 1929 Infant Life (Preservation) Act, ‘capable of being born alive’.

At the time of the case, because the woman was 21-weeks pregnant, and so approaching the point at 23 weeks when the Abortion Act 1967 stated a foetus was ‘capable of being born alive’, the whole process was expedited so as to become one of the quickest in British legal history. Greene acted for the woman.

‘The question was,’ Greene says, ‘could a foetus be represented before the courts? We went from a High Court hearing on Saturday to the judgment on Monday morning. The appeal was on Monday afternoon and the House of Lords ruled on Tuesday. Normally, such a process could take years.’

The courts found in the woman’s favour, ruling that it is a woman’s choice whether or not to have an abortion. Nonetheless, she decided to give birth, but granted custody of the baby to Carver.

The end of the 1980s was marked by two tragedies with multiple fatalities. On 21 December 1988, Pan Am Flight 103 was blown out of the sky while on a scheduled flight from Frankfurt to Detroit via London and New York. In all, 270 people were murdered – 259 passengers and crew on the aeroplane and 11 residents of the Scottish town of Lockerbie.

Greene acted for the families of some of the victims at the Fatal Accident Inquiry that took place in Dumfries, Scotland, between 1 October 1990 and 13 February 1991. He says: ‘The inquiry was held in a huge hall with around 500 relatives of victims crammed in. The advocate general led the proceedings. The first witness showed us how air traffic control had tracked the flight on screen. The box that was flight 103 suddenly disappeared and then reappeared as a number of boxes.’

That was when the bomb detonated, ripping the aeroplane apart so that it fell from the sky as burning debris. Bodies and parts of the fuselage would have taken minutes to reach the ground. Greene went on to act for the families in compensation negotiations with the Libyan government.

In the final year of the decade, on 15 April 1989, 96 Liverpool football fans died at Hillsborough.

Greene became part of a Group Litigation Order granted by the courts to allow a number of claims on behalf of victims of the disaster to be managed collectively. The process was quickly mired in controversy, with accusations that the police had falsified their notebook records of the incident after the event and that the fans themselves – not the people charged with their safety – caused the tragedy.

Lockerbie and Hillsborough were among the first US-style class, or group, actions in the UK. They helped set the keynote of Greene’s subsequent career. He has spent more than 30 years pioneering and championing group actions that have become a part of the UK’s legal landscape.

‘Most people can’t afford to go to court as individuals,’ he says. ‘Group actions spread the costs and risks and give everyone a chance to make their voices heard.’

During those 30-plus years, Greene has acted in many of the country’s most high-profile group actions. He acted for 50,000 shareholders who lost their savings after Railtrack folded in 2001 and was subsequently taken back into public ownership. Greene explains: ‘Shares in the company were declared worthless when it was nationalised, prompting Baroness Shriti Vadera, who was then at the Treasury, to allegedly describe shareholders, unsympathetically, as “grannies who would lose their blouses”.

‘The case was also notorious because the then transport secretary, Stephen Byers, admitted to not being truthful to MPs over Railtrack, but claimed he couldn’t remember why.’

The roll call of Greene’s group cases continues: Northern Rock; transport cartels around air cargo and truck prices; shareholder complaints to the Financial Services Authority (replaced in 2013 by the Financial Conduct Authority and the Prudential Regulation Authority); and investors in the Madoff fraud, at an estimated £46bn widely considered the largest financial fraud in US history. But it is Greene’s 1994 work on behalf of a group of London sex workers that is most memorable.

In an attempt to gentrify the area, Westminster City Council struck a deal with BT to block the telephone lines of sex workers advertising their services through cards left in public telephone boxes. The prostitutes riposted that if clients could not contact them by phone, they would have to work on the streets to find clients. This was not only dangerous, because they would be at risk of violence, but would also highlight the fact that prostitution was rife in the supposedly gentrified area.

‘There was some moralising around the case,’ Greene recalls, ‘because defending these prostitutes’ right to work might encourage them or others to ply their immoral trade. But we invoked the Restrictive Trade Practices Act 1976 [repealed upon the introduction of the Competition Act 1998], arguing that the women were being unfairly prevented from earning their living. The Office of Fair Trading [which enforced competition law until 2014] agreed with us. The BT and Westminster City Council agreement was deemed unlawful and we won the case.’

Group actions apart, what else has occupied Greene’s professional life? He replies: ‘Because the firm has a history in the region, I’ve worked for around the last 25 years for governments in east and southern Africa. The work has mostly been in relation to human rights and civil justice, covering such areas as the transparency of the court system and legal aid. It has taken me to Uganda, Kenya, Tanzania, Malawi, Lesotho, South Africa and elsewhere. I also did some work in Nigeria and Ghana in west Africa, and Libya and Tunisia in north Africa.’

Much of his work in Africa has focused on the rights of women. ‘In several African states, women are still treated as chattels. After her husband dies, for example, a widow can be cast out on to the streets because she lacks property rights.’ He says that there are ‘no great rewards in this work, just the fascination of working with people from very different cultures and learning what’s possible and not possible’.

But he warns: ‘As Europeans, we can’t impose our standards and procedures wholesale into somewhere quite alien. We can just try to make a positive contribution.’

Greene is uniquely qualified to advise on civil justice. In 1997, the then lord chancellor appointed him to the Civil Procedure Rule Committee and, in 2002, he became a member of the Civil Justice Council. Among other publications, he is the author of The New Civil Procedure Rules and is an associate editor of the Civil Practice Manual.

Greene won the Gazette’s Legal Personality of the Year Award 2017, partly for his high Brexit profile. The government seems confused as to what is happening, so how can Greene, a solicitor, contribute the most value to the debate?

‘The challenge for lawyers,’ he replies, ‘is how to make leaving the EU work for the profession and for the rule of law and access to justice. We must strive to achieve some certainty, because the main issue is uncertainty. What will it be like after the transition period? We all – the 27 remaining EU states included – need to maintain the existing legal structures to pursue and ensure citizens’ rights across Europe.’

Can he give an example of legal structures to maintain a lay person would readily comprehend? ‘The European Commission’s various motor insurance directives make it simpler for us all to drive throughout Europe,’ he begins. ‘So long as we have compulsory insurance in our own country – which we do in the UK – we are free to drive anywhere in the EU.

‘Also, we are able to issue proceedings following a road traffic accident abroad in our own domestic courts. If a Parisian, for instance, has an accident in Warsaw, he or she can issue proceedings in Paris rather than having to deal with the Polish way of doing things. It would complicate things immeasurably if this system changed and we had insurance checks at borders and had to return to the scene of the accident, possibly hundreds of miles from home, to get the problem fixed. That’s why it’s incumbent upon lawyers to work to maintain many of the current legal arrangements post-Brexit.

‘It’s undeniable that the EU needs reform, but reform is best tackled from within the union rather than outside it. Otherwise we might be subject to European laws, but unable to make or influence them.’

As the fog thickens, we can only hope the certainty Greene seeks still remains a possibility.