Student fee protests and human rights protections

9 December 2010 by Alasdair Henderson

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.

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Read more:

• Parliament Square protesters lose eviction appeal [updated]
• Parliament Square protesters evicted: analysis of judgment
• analysis of the law of peaceful assembly by Emma Norton at Liberty on Guardian.co.uk