I have been wondering about teaching one of the secret lives of private law; the use of the law of tort, contract and equity to regulate on-campus student protest. There is a growing online archive — of blogs, media reports and university press releases — which details how these private tools for the defence of “university property” have been used to bring occupations and sit-ins violently to halt. Many of our students now have first-hand experience of these matters and many of us, on the campuses where we teach and visit, have seen creative student attempts to sustain the university as a political space shut down by the invocation of law.
The first task in this teaching, I think, is to remember that there is a private law of student occupations, to call it that and to study it. Of course, management at several universities have commonly chosen to criminalise student occupations, accusing occupiers of public order offences or criminal damage, in an effort to trigger police “stop and search” powers and powers of arrest (for instance on reasonable belief of intent to commit aggravated trespass or for refusal to comply with certain police orders). Aggravated trespass is a favourite charge; readers may recall its use in the aftermath of last year’s Millbank protest, and at the UK Uncut occupation of the Queen’s Grocers on Saturday. It has been used by several administrations, including in the George Fox 6 case at Lancaster in 2006. There is no university asylum law in Britain: some university management bodies have shown themselves willing even to call armed and armoured police onto campus (see e.g. the “hostage situation” which arose at last year’s occupation at Sussex) and to generate situations where students have been subject to police violence. Readers will also remember the immigration raid which took place in the context of the SOAS cleaners’ protest in 2009.
But direct criminalisation is a departure from the quieter norm. A greater number of occupations have been addressed, at least initially, by negotiation or dialogue under threat or cover of private law. A student occupation becomes a trespass when students are deemed to have exceeded the scope of their permission to be in and use the occupied building. Management has a remedy whether or not students have been violent or have damaged the property. The management may take self-help action, in that it is entitled to use ‘reasonable force’ to turn the occupiers out. However, its remedy is usually to apply for a possession order, for an injunction compelling students to leave the occupied property (see e.g. this injunction which ultimately ended last year’s occupation at the University of Sussex) or even for an appropriate quia timet injunction. The enforcement of private orders may, of course, involve violence. Eviction is carried out by bailiffs but often observed by the police (see this briefing document from the LSE’s Head of Security). Police may also be involved where management takes action against breach of a possession order.
The invocation of private law has, in many instances, been synonymous with the reinscription of a disciplinary and punitive management-student relationship, and with a deployment of university monies and administrative resources against students who have little but debt to sustain them. Some occupations, such as those at Middlesex Philosophy and the University of Sussex in spring of last year, have been brave enough to defy possession orders for a time or to adapt their occupation, as happened at the recent “Free Hetherington” at the University of Glasgow. For others, the threat of legal costs and the intimidation involved in naming specific students in proceedings deters further direct action. In addition, university management may obtain orders designed to prevent other students from pursuing similar actions anywhere on campus (University of Essex v Djemal). Contract law provides a route to further victimisation. Students submit to the jurisdiction of university disciplinary panels by contract on enrolment, and may thereby find themselves liable to punishment (including fines and suspensions) for breach of university disciplinary regulations.
That said, the retreat to private law has not always spelled immediate closure for occupations. There have also been examples of university management (e.g. at SOAS, Oxford and Cambridge last year) declining to evict students immediately, even having obtained possession orders and leaving some breathing space for the work of occupation to continue. Possession proceedings are also advantageous from an occupier’s point of view, in that they buy the occupiers a few days’ time (that advantage could, of course, be removed if the government pursue plans to create a new crime of intentional trespass). The occupiers are entitled to notice of the repossession, and the court holidays last winter bought the dogged occupiers here at the University of Kent the Christmas season, during which they used the threat of their eviction to solidify relationships with faculty and the local community, gained media attention for their cause and were able to control the manner of their eventual departure.
What is crucial and devastating here is that for English law the university’s buildings are private property. The Supreme Court judgment in Meier set out the law that applies: The occupied campus is owned by the management-claimants. The student-defendants are mere interlopers, who have come on to it unasked and may now be physically removed. There is no analogy to be drawn with Mayor of London v. Hall, which concerned resolutely ‘public’ space. As such, in the possession cases, free speech and free assembly are secondary activities of the privately-owned university and not its primary properties. Their pursuit can only rarely defeat the demands of rightful ownership and orderly land use (see this report of the first UCL injunction and School of Oriental and African Studies v. Persons Unknown). And so, a student occupation is not a legitimate political claim but a land tort. The management’s claim, to staunch the loss of revenue from a saleable space, or to the preservation of health and safety (see e.g. the Cambridge Vice-Chancellor’s statement on last winter’s occupation of the Combination Room) must always take precedence.
Teaching resistance to management manipulation of private law in the context of student occupation must involve more than celebrating play in the loopholes, or even blackletter analysis of the operations of trespass and contract. Public objections to UCL Management legal action against the most recent campus occupation there provides a place to start. Resistance must involve, in the first instance, an ethics of university government which entails an interrogation of the appropriateness of a university’s management ever bringing our students to law in defence of pure private property. In the second instance, we must ask whether the university should be understood by law primarily as an owned private space. If its public dimensions cannot be recognised in private law, how can its ownership be shared and expanded? It may be that foregrounding the claim in law to the university as political space requires building on teach-outs and spontaneous lectures and removing student trespass, for as long as possible, outside the campus, occupying irrefutably public space — finding another set of owners to make us defendants.