Student fee protests and human rights protections

9 December 2010 by

Today MPs will vote on whether to increase the maximum amount universities can charge to £9,000. Contrary to many commentators’ predictions, the student protests against the increase on 10 November have not been an isolated occurrence, but the beginning of a settled campaign. But would the students be able to rely on human rights arguments to resist eviction?

The campaign has been quite literally settled in many cases, as students at (amongst other universities) UCL, SOAS, Oxford, Sheffield, Manchester Met and Newcastle have staged occupations and sit-ins. Some have moved out, but others have occupied lecture theatres since around 24 November and don’t seem to be moving anywhere any time soon. That is, unless the police or university authorities force them out.

The right to protest is covered by Article 11 of the European Convention on Human Rights, which provides that:


Everyone has the right to freedom of peaceful assembly and to freedom of association with others…

That right is a qualified right, in that it can be legitimately breached in certain circumstances. Article 11 goes on:

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

Also in the background is Article 10 of the European Convention, the right to freedom of expression.The right “include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers“. Again, however, the right is qualified. It can be restricted in similar circumstances as Article 11 can be, namely when prescribed by law and necessary in a democratic society.

The Coalition announced in the Queen’s Speech that their Freedom Bill would remove some of the restrictions on the right to peaceful protest that had been put in place by New Labour, but that has not happened yet. So what restrictions are there on the students’ rights to protest?

Public Protests

The main set of powers in relation to protests in the streets are contained in the Public Order Act 1986 (POA), which allows the police to impose conditions on (although not completely ban) any assembly in a public place if a senior officer believes such conditions are necessary to prevent serious public disorder, serious damage to property, serious disruption to the life of the community or the intimidation of others. It is an offence to knowingly not comply with a condition, or to incite others not to comply, and the sentence can be up to 51 weeks in prison or a fine of up to £2,500.

In addition there are specific powers in relation to demonstrations in and around central London. Sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (SOCPA) require anyone wishing to protest within the “designated area” (basically a large chunk of Westminster) to give written notice to the Metropolitan Police at least six days in advance. The police can then impose restrictions where deemed necessary to prevent serious public disorder or disruption to the life of the community, where there is a risk to security or to health and safety, or where the demonstration will hinder the proper operation of parliament or will hinder anyone entering or leaving parliament. The threshold for imposing restrictions is somewhat lower, and the conditions that can be imposed (which, again, it is an offence to breach) are much broader, than under the POA.

These powers are fairly wide-ranging, but as long as they are exercised with restraint, it would be difficult for students to claim that their Article 11 rights are being breached, since the right is a qualified one. This is particularly so given the violence that erupted in the first set of student protests on 11 November, which lent support to calls for tighter restrictions and more policing, and which means that all subsequent protests are being viewed with suspicion. Whatever the police do, the law does not allow public protests in the streets to be banned completely though, and any absolute ban or requirement to seek police permission would be a clear violation of Article 11, as a recent ECtHR decision held in relation to a ban on a gay pride parade in Moscow.

Protests in universities

However, although further marches are still planned the focus of many student protesters has moved to staying indoors – taking over lecture theatres, halls or seminar rooms in the university buildings, and staying put until the university authorities listen to their demands. Who can blame them, given the recent freezing weather? But the legal position as regards the sit-ins and occupations is much less clear.

The occupations appear to have been entirely peaceful, and indeed full of students still diligently studying, in comparison to the occasionally violent and disruptive protest marches. But because they are taking place on private university property the students are potentially trespassers, and thus are susceptible not to the POA provisions but to the much blunter instrument of possession orders and eviction notices. Once an interim order for possession is made by the court and served upon the trespassing students, it is a criminal offence to fail to comply with it, for which the students can be arrested. Apparently SOAS and Cambridge have already obtained possession orders, but not yet served them, effectively allowing the students to continue to protest. However, if either university decides that enough is enough, and serves the orders on the students, it will be an uphill battle to resist eviction.

There is very little case-law covering a situation where trespassers assert Article 11 rights (or Article 10 freedom of expression rights) in their defence. The closest recent analogy is that of the ‘Democracy Village’ campaigners who were evicted from Parliament Square earlier this year. They relied upon Articles 10 and 11 in their attempt to resist eviction by the Mayor of London Boris Johnson, but lost in the Court of Appeal. The reasons given for dismissing their appeal by Lord Neuberger, the Master of the Rolls (which were similar to those given by Griffith Williams J in the High Court), centred on the damage done by the protesters to Parliament Square and the fact that they were preventing other groups or individuals from exercising their rights to protest in the Square, or indeed merely to wander across it.

The students may well be in a stronger position on both these points – there does not appear to have been any damage caused to the occupied rooms, although some students’ rights could be being infringed by restricting access to university facilities. Moreover, in considering whether the eviction of the Democracy Village residents was proportionate the courts took very seriously into account the nature of Parliament Square as an high-profile public site in a location critical to the right to protest. A lecture theatre in SOAS does not have the same importance as a site of protest, even to students. Overall, therefore, it is very difficult to know whether a human rights challenge to any attempt to evict the students would be successful.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

3 comments


  1. kerri panteli says:

    I agree with driving, I am in Greece and many of my friends was thinking ofsending there kids to the uk for study at the universiry but since the govenment have increased the fees they are looking at other countries which are cheaper and give the same results, do the govenment notunderstand how much money they will be losing to do this.

  2. Driving says:

    The Goverment just think that they gonna make money from Universities, but in 10 years time no one is going to go to uni anymore. Thy only do what they do with all the manufacturing in UK , big taxes , and they all left UK

  3. David Hatton says:

    Hope the protests against student fee rises are a little more peaceful this time. Last time the behavior of the protesters were disgusting. Maybe we should have a little perspective? http://davidhatton1987.blogspot.com/2010/11/little-perspective.html

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: