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.

  2 comments for “Use of Private Law to Control Student Occupations

  1. H
    6 April 2011 at 4:51 am

    Great art­icle, Máiréad!

    I came across it as I was searching for an ag­grav­ated tres­pass law in Ireland be­cause every­body seems to be very much clue­less about the law over here, as we have a fledgling grass­roots move­ment that has not yet been able to sus­tain it­self or­gan­ic­ally! We read and at­tempt to im­ple­ment a lot of England’s fine DA lit­er­ature over here but it should serve as a tem­plate for our own cam­paigns, legal act­ivism, etc while not to be in­ter­preted dir­ectly in terms of Irish law. That is how I came across “ag­grav­ated trespass.”

    We are fa­cing sim­ilar crim­in­al­iz­a­tion over here and sadly some on the left seem to want to pro­voke such re­pres­sion for their own be­nefit, whether it’s to gain new re­cruits from a showing of the “strong arm of the state” or just plain at­tempting to martyr the young by having them maimed for reasons as low as PR to shock a si­lent ma­jority into spon­tan­eous mass ac­tion! Trouble for trouble’s sake really, the usual dog­matic pur­suit of op­por­tunism we have suffered over here as act­iv­ists for over a decade now! Said crim­in­al­iz­a­tion seems in­ev­it­able, es­pe­cially when some on the left re­fuse to pursue a unity of op­pos­i­tion with a di­versity of tac­tics. I guess to some, said in­ev­it­ab­ility is mis­taken for determinism…

    Great work on this art­icle! I’ll be sure to read others penned by your hand!

    - P.S, I have now found out there is no ag­grav­ated tres­pass law but the Public Order Act seems to suit when it comes to crim­in­al­izing protest over here!

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