Use of Private Law to Control Student Occupations

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.

Tags: Law, Protest, Student Protests

This entry was posted on 28 March 2011 at 9:25 am and is filed under Critical Legal Education, Critical Legal Theory, Human Rights, Jurisprudence. Published under Creative Commons (CC) Attribution-NonCommercial-ShareAlike 3.0 Unported License: You are welcome to share and remix this content for non-commercial purposes. Kindly acknowledge and hyperlink the source.