Joe Walker and Fred Groves provide an update on unauthorised pro-Palestinian protest encampments on university premises where many have refused to comply with demands to vacate.
Background
Since October 2023, pro-Palestinian protests have been held on the grounds of many UK universities. Whilst universities have given permission for a number of events to take place, in some cases protesters have set up unauthorised encampments on university premises and have refused to comply with demands to vacate. Typically located on open spaces on university grounds, these camps have consisted of tents occupied by students and other individuals and are the focus of various protest activities, including demonstrations, speeches and campaign organisation. The protest camp phenomenon has been subject to widespread media and political discourse and remains a significant matter for institutions in the higher education sector to contend with.
Summary of the facts
In July 2024, the High Court made separate summary possession orders against protest camps located at the University of Birmingham and the University of Nottingham respectively. In each case:
- the claims were brought by the universities against named individuals and “persons unknown” (i.e. trespassers whose names were not known) under CPR Part 55 (Possession Claims), Rule 55.3(4); and
- the Court held that the universities were entitled to summary possession orders against the defendants.
The Birmingham and Nottingham cases share many similarities, including in subject matter and the applicability of CPR 55 to each, and so are discussed here jointly and in general terms, unless otherwise specified.
Issues for the Court
Under CPR 55.8, at the hearing fixed following the Court issuing the possession claim, the Court may either (a) give case management directions or (b) decide the claim.
The Court in Birmingham held that the following test applies (the same test was applied in Nottingham):
“A summary order for possession may… be made if there is no real prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at trial…” [6]
It is notable that in each case, the claimants and the defendants agreed that the universities had purportedly terminated any licence the defendants had to use the land following the establishment of the camps. The question for the Court was whether the respective decisions to terminate the defendants’ licences were lawful.
The balance of the protesters’ rights to free expression and assembly under the aforementioned legislation with the rights of the universities to conduct their business unfettered by unauthorised protest activities was a central issue in these cases.
The parties’ cases
In summary, the universities argued that the unauthorised protest camps on their respective premises were disruptive to university activities and were having a deleterious impact on the functioning of the universities, and on the wider body of staff and students. In Birmingham, the university argued that the encampments represented an infringement of its property rights.
The universities argued that they had (purportedly) terminated the defendants’ licences in a lawful manner, having appropriately balanced the defendants’ rights (including freedom of expression) with the rights and duties of the universities. In bringing these proceedings, each university sought to a decisive means to evict the encampments.
The named defendant in Birmingham, Ms Ali, argued in her defence that the (purported) termination of her licence to use the land was unlawful on various grounds, including (in summary):
- discrimination on the grounds of belief; and breaches of the universities’ public sector equality duties; under the Equalities Act 2010;
- breaches of the universities’ duties to uphold freedom of speech (in public law; under the university’s codes and policies; and pursuant to the Education (No 2) Act 1986); and
- breaches of the defendants’ rights to freedom of speech and assembly under the Human Rights Act 1998 and the European Convention on Human Rights.
Similar and related grounds of defence were advanced by the named defendant in Nottingham, Mx Butterworth.
The primary issue on the respective applications for summary possession orders was therefore whether the named defendants in each case had a real prospect of successfully defending the claim on one or more of these grounds.
The Court’s findings
In each judgment, the Court found that:
- the defendants had no real prospect of defending the claims;
- there were no other compelling reasons that the claims should go to trial; and that
- the Universities had established that they were entitled to summary possession orders respectively.
In both cases, the Court held that the universities had terminated the Defendants’ licences because of the Defendants’ conduct and not because of their beliefs. Significantly, in Birmingham, the Court held that:
“…the University’s right to possession of its own land is of real weight… That is all the more so where the University positively seeks to use its land in a way that gives full voice to rights of free expression and where part of the reason for seeking possession is because the campers have completely disregarded a framework that is designed to protect freedom of expression.” [73]
What lessons can be drawn from these recent cases?
The administrators of UK universities, as well as those of public bodies on whose premises similar encampments have been located (for example, local authorities), will no doubt be reassured by these recent judgments. Many of the protest camps dwindled significantly with the passage of time and over the summer break, although a resurgence in protest activities seems possible as the new academic year begins. Universities and other institutions may therefore wish to consider the following:
- The content, and parties’ compliance with, the universities’ respective policies and codes of practice (including those relevant to free speech) was examined in some detail by the Court. Universities may wish to review their policies and codes to ensure that they are comprehensive, consistent and fully compliant with statutory and public law principles.
- Indeed, Birmingham suggests that it may be prudent in any case for affected institutions to be prepared to demonstrate not only the robustness of their policies for the protection of free expression, but also to demonstrate that their land is used to promote and to uphold those values.
- In Birmingham, the Court noted that the University had, prior to issuing proceedings: “…expressed a commitment to support students who wished to take part in protests about issues that they cared deeply about. It pointed out that there were many ways in which that could be done lawfully, including through authorised demonstrations. It expressed a commitment to work with the organisers of the camp to enable them to continue to protest…” [53]
- Affected institutions should keep records of their dialogue with protestors in similar circumstances. They may also wish to ensure that their policies, intentions and decisions relating to protest activities are clearly communicated to students and staff, especially where the bringing of proceedings is contemplated.
Cases:
- University of Birmingham v Persons Unknown and Mariyah Ali[2024] EWHC 1770 (KB)) (4 July 2024)
- University of Nottingham v Butterworth and Persons Unknown[2024] EWHC 1771 (KB)) (5 July 2024)
Joe Walker is a Legal Director and Fred Groves is an Associate at Sharpe Pritchard LLP.
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