Is possession still nine-tenths of the law? Claim for possession brought by University of Birmingham against protesters

Posted: 29/10/2024

A recent claim for possession brought by the University of Birmingham, against occupiers protesting the university’s failure to condemn the actions of the Israeli Defence Force in Palestine, highlights the conflict between the rights of students to protest and the rights of the university as a landowner. 

The main issues in the claim are centred around the legality of the university’s actions in seeking possession of its land and terminating any purported licences to use it, and how this contrasts and interplays with a student’s rights to protest under various statutes and the European Convention on Human Rights (ECHR).

Together, the education and real estate litigation teams have reviewed the two judgements in detail and set out some key takeaways below.

The first hearing

At the first hearing, the University of Birmingham was granted possession of part of one campus on the basis that the protest had led to criminal activity, by way of vandalism and threatening behaviour. It was also granted possession against all non-students and non-staff who had no right to be on the campus in any capacity. Whether a wider possession order should be granted against the students and staff occupying the remainder of the two campuses, or whether the order should extend to all campuses regardless of whether they were currently being occupied, was then reviewed in a second hearing. 

The right to occupy

By way of background, it is important to note that the students and staff of the university had a right to pass over and use the land and this was expressly provided for in the university’s regulations. This right was limited to any legitimate purpose connected with the work, business and social activities of the University of Birmingham. The university alleged, and the court agreed, that this right did not extend to unauthorised encampments, and if it did, then a notice sent by the Vice-Chancellor was sufficient to terminate the right. The question then became whether the students and staff had a free speech defence. 

Freedom of speech

One of the students submitted a defence on the basis that the decision to remove the occupiers from the campuses was unlawful due to discrimination on the grounds of her beliefs and a failure to comply with the below statutory duties:

• Equality Act 2010;
• Public Sector Equality Duty;
• Education (No 2) Act 1986 and the freedom of speech for university students; and
• Human Rights Act 1988, in conjunction with articles 10 and 11 of the ECHR.

The university had a code of practice on freedom of speech that formed part of its contract with its staff and students, which detailed an application process to carry out any demonstrations, protests or marches on campus, and any other forms of freedom of speech. This required obtaining consent for the planned action in advance. In this instance, the occupiers had not made any such application, and so the occupation was not authorised.

The court found that the university had made all reasonable efforts to ensure students could exercise their rights via the code of practice. The students occupying the land had done so in breach of the code and were therefore trespassers.

Key takeaways

Since the decisions detailed above, a further case involving Queen Mary University of London considered similar arguments relating to freedom of speech. Again, it was held that a landowner’s right to possession is ‘of real weight when it comes to proportionality’ and that the decision to issue proceedings was proportionate and not in breach of the students right to protest. 

While the implementation of the Higher Education (Freedom of Speech) Act 2023 was delayed due to concerns that the legislation was potentially damaging to student welfare, issues surrounding freedom of speech are still producing many issues, especially as the world becomes more polarised.  

Having a code of practice on freedom of speech and following it is the first step to balancing competing viewpoints and ensuring that where freedom of speech is used as either a sword or a shield, careful consideration is given to where to draw the line.  

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