Over the past few months, students and staff, along with third parties, have established encampments at various universities in protest of the killings and suffering in Gaza.
There is a fine balancing act for universities to consider when looking at whether they should seek possession of land occupied by protest groups. In deciding whether or not to take back possession there are number of factors to think about including:
Does a combination of the Education (No. 2) Act 1986, Human Rights Act 1998 and Higher Education (Freedom of Speech) Act 2023 (“2023 Act”) offer a defence to the students?
Under the Human Rights Act 1998, it is unlawful for a public authority (or for those carrying out acts of a public nature) to act in a way which is incompatible with a person’s right to freedom of expression and freedom of assembly and association.
Whether a university is a public authority, and therefore directly bound by Articles 10 and 11 of the European Convention on Human Rights (freedom of expression and assembly), is clearly debatable, though universities would be well advised to factor these rights into their internal decision-making considerations.
When considering the balance between these rights and the nature of private land, a university should consider all of the circumstances including:
- whether the protestors have other effective methods of protest;
- whether they are exclusively occupying the protest sites and whether the university and other students retain access;
- whether there has been any unlawful activity such as criminal damage;
- the level of disruption to the workings of the university caused by the protest and any additional costs that arise as a result of the protest;
- any relevant provisions in university regulations, codes, policies and student contracts;
- relevant legal frameworks. As well as the other legislation mentioned in this note, other frameworks may be relevant, such as the Equality Act 2010;
- the target of the protest will also be a factor. A protest against a particular university policy is more likely to be reasonable on university land, than a protest against government policy generally for example.
Similar considerations need to be considered when ensuring compliance with the Education (No. 2) Act 1986. The 2023 Act is not yet in force (most of its provisions come into effect on 1 August 2024) and we have been assisting institutions with their preparations, as mentioned here.
Possession proceedings - do students and staff have a licence to use university land, and if so, on what terms?
Before possession proceedings can be instigated, any licence to occupy the land must be effectively terminated, bearing in mind the university’s statutory obligations.
Student contracts usually contain a wide licence to use university property and may enshrine the right to lawful freedom of speech too. These factors may lead to a court to decide that students do not enter encampments as trespassers and that they have an arguable case for a subsisting licence to remain at protest sites provided the protest remains within the terms of any express or implied licence. If a university wishes to terminate any licence, it will need to show it has balanced its obligations to promote free speech as against the university’s other obligations before terminating any licence as a prelude to possession proceedings.
Lessons for universities
Whether or not the university is directly bound by Art 10 and 11 it should, when considering whether to take enforcement action, look to balance such action with its duties to promote freedom of speech. Documenting and being able to evidence this decision-making process and engagement with the protestors is likely to be key in any successful application.
There are likely to be imminent further developments in this area. For now, this note provides guidance to universities considering their options when dealing with student protest encampments of the issues in play.
If you wish to discuss any of the issues outlined above in the context of your institution, please contact your usual Mills & Reeve contact, Henry Mahalski, Julian Steed or a member of our highly experienced education law team.
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