A campaign against the government’s proposed increase in university tuition fees has been undertaken by students over the last month. Protests have taken two forms: public protest and occupations. Here we analyse human rights law in relation to each form of protest.
The relevant Convention right is article 11 which protects everyone’s right to peaceful assembly. The article lists several reasons for restricting the right, among them for “public safety”, “for the prevention of crime or disorder” or “for the protection of rights and freedoms of others”. Also relevant is article 10, which protects freedom of speech. This may be restricted for similar reasons as article 11.
Over two days of protesting in central London, students have complained of ‘kettling’ techniques. This is a police practice where the police restrict the protestors to a certain area in order to maintain order. Such a practice is a concern for the right to liberty (as protected by article 5 ECHR), as protestors are trapped without access to water, food or toilet facilities.
Such a practice was assessed by the House of Lords in Austin v Commissioner of Police of the Metropolis. In that case, a demonstration of 3000 people in Oxford Street was controlled by police with a cordon and the applicant complained of a deprivation of liberty. The House of Lords said that whether there was a deprivation was fact-sensitive and here the police only wanted to keep the cordon in place until dispersal could be achieved. Therefore, no breach of article 5 occurred.
It would be surprising if the kettling practice would breach either the protestors’ article 11 or article 5 rights. This is particularly the case given the violent protests that have occurred during both student protests so far, which the police obviously need to control.
In many universities, students have staged sit-ins in university buildings. Several universities (including SOAS, UCL and SOAS) have responded by securing a possession order allowing them to evict the student protestors.
Sit-ins are protected by Article 11 (G v Germany), and this article seems as if it might be of assistance to student protestors. There is no real case law in the European Court or in domestic courts of the protection granted to these occupation protests. The only similar recent case was that of Boris Johnson’s eviction order against the Parliament Square protestors. However, much was made in the Court of Appeal and High Court judgments of the damage to the square being caused by the protestors, such as to flowerbeds and rubbish left. This is therefore different to the student occupations where no obvious damage has been caused.
Unlike the student public protests, these occupations have been peaceful. The only relevant limitation to the protestor’s article 11 right seems to be the ‘rights of others’, namely the university’s property right. We come back to the balancing of freedom of expression/association and the right to property, which is explored in an earlier blog accessible here. It would seem the court should only limit the protestor’s article 11 where the occupation is disrupting educational or other activities of the university such that it justifies restricting the right.
These article 11 considerations have to be taken into account where the court makes a decision. The court must take into account any European Court jurisprudence (Human Rights Act, section 2) and must apply domestic law in compliance with Convention rights (HRA, section 6). It is unclear whether article 11 was pleaded by the protestors or considered by the courts who granted possession orders. But it surely is the main string to the bow of the protestors resisting eviction, and must be considered by the courts deciding whether to grant a possession order.