Human rights no defence to protest injunction

Last year, the High Court in England and Wales granted summary possession orders to two Universities allowing them to remove students occupying University property in protest. In doing so, it found that various public law, human rights and discrimination protections did not give rise to defences to the Universities' legal right to possession.

The two claims were brought separately by the University of Nottingham and the University of Birmingham. In both cases, protestors, opposed to the actions of the Israeli Defence Force in Palestine, had occupied sections of the campuses at the Universities. The Universities sought a possession order requiring the protestors to vacate on a summary basis (i.e. without the need for a full trial). It was agreed by the protestors that any licence that they may have had to use the land had been terminated by the University. However, the protestors argued that the Universities' decisions to terminate any licence and seek re-possession of the land were unlawful on a variety of grounds, including:

     1.      The University had unlawfully discriminated against the protestors in breach of the Equality Act 2010 (the "Discrimination Defence")

     2.     The University had failed to comply with its duties and obligations under statute and its own policies to allow free speech (the "Public Law Defence")

     3.     Their eviction would amount to a breach of the protestors' rights of freedom of expression and freedom of assembly, contrary to section 6 of the Human Rights Act 1998 and articles 10 and 11 of the ECHR (the "Human Rights Defence").

The Court held that the protestors had no reasonable prospect of making out any defence at trial.

Discrimination Defence

The Court found that the University's decision to attempt to recover possession had nothing to do with any protected characteristic under the Equality Act (without determining whether the protestors' beliefs were capable of being protected). The university was motivated by a desire to end the disruption caused by the unauthorised encampments, which was not dependant on the particular cause of the protestors.

Public Law Defence

The Public Law Defence relied on statements in the University of Nottingham's Code of Practice that no one should be denied access to part of the University because of their beliefs. It was also claimed that the University had not followed the procedure in the Code to cancel events organised by students. On the former, the Court held that the University seeking possession of its land had no connection with the protestors' beliefs: it was the appropriation of land (and associated disruption) to which the University objected not to any belief held by the protestors. On the latter, the protestors had not engaged at all with the events organising procedure and so this aspect of the Code was not engaged.

Human Rights Defence

Articles 10 and 11 protect the right of individuals to express their beliefs and to assemble. The Court held that the protestors' conduct was "at best right at the margin of the protection afforded by article 10 and 11". For the purposes of the summary decision, however, it was assumed that their actions were capable of being protected by the Act. The question was then whether the University's interference with the protestors' rights was justified. The Court was critical of the fact that the protestors had given no advance notice of the camp, had not sought to engage in the event organisation provisions in the Code and had been trespassing on the University's property for 8 weeks. There were many other ways that the protestors could express their view and exercise their convention rights. In contrast, the most appropriate way for the university to vindicate its legal rights was by the proceedings. It was therefore decided that the University was justified.

Conclusion

The courts being agreeable to deal with these matters on the basis of property rights, side-stepping the Convention rights issues, will be a welcome one for landowners, particularly public bodies. It means that protestors who are trespassing on land will face an uphill battle relying on public law and human rights arguments to protect their right to remain. 

If you are a landowner, whether a public body, individual or private company, and are concerned about the potential impact of protestors, please do not hesitate to get in touch with our Real Estates Disputes Team or your usual Brodies' contact.