This is an application brought by SOAS seeking possession on an urgent basis of the Brunei Suite which is the ground floor of the Brunei Gallery which is one of the principal buildings of SOAS’s
I heard a without notice application yesterday against persons unknown including students who have been occupying the Brunei Suite since noon on Monday in what is colloquially known as a ‘sit in’ in protest against the Coalition Government’s spending plans for higher education. I gave permission for short service under Part 55 and for the parties to return at 3.30pm.
To set out the background I will refer to the details in the First witness statement of Mr Richard John Poulson in support of the application. Mr Poulson is the Director of Estates and Facilities at SOAS he explains that SOAS is part of the
The school itself is a private charitable body and holds the premises under a lease granted by the
There are various covenants on the part of SOAS including a user covenant. There is also a covenant against nuisance paragraph or clause 4.17 includes anything ‘ which may be or become a nuisance or which may cause damage, annoyance, inconvenience or disturbance to the Landlord or the owners, tenants or occupiers of the Adjoining Property, or which may be injurious to the value, tone, amenity or character of the Demised Premises’. There is also a covenant not to use any part of the Premises for residential use or for sleeping, paragraph or clause 4.15. There is also an alienation provision, paragraph or clause 4.20 provides that SOAS ‘shall not part with possession or share the occupation of the whole or any part of the Demised Premises…’
Since the SOAS campus is private land it follows that only persons with the licence or consent of SOAS may enter. For normal purposes students of course have permission to be on campus for education in the broad sense of that word.
This particular protest began at about noon on Monday 22nd November 2010 and the evidence of Mr Poulson is that about 20 people occupied the Brunei Suite and indicated their intention to remain in occupation in protest against the increase in fees and the cuts to the education budget. The protestors had several demands and sought to negotiate with SOAS. SOAS will only negotiate with the Student Union and have declined to negotiate with the occupying students.
The occupiers have sought support from various sources however the basic ground for the Possession Order is SOAS’s property rights to occupation of their own premises and to prevent unlawful trespassing. The students are trespassers because there is no implicit right or license to occupy the Brunei Suite to the exclusion of the school nor to sleep there or to control access.
I have been referred to the student regulations and in particular regulation 9.1 which is concerned with student discipline. It appears clear that the sit in involves engaging in activities which are outside the proper functions and activities of the school, that is obvious as a matter of common sense and is borne out by the detailed witness statement of Mr Poulson. In his first witness statement Mr Poulson raised a number of concerns including highlighting the risk to health and safety the encouragement to others and that the general risk to the building may worsen due to the large rally yesterday which began at
SOAS are also concerned that the situation may escalate and that the premises are not designed to hold substantial public gatherings. So far no dangerous overcrowding has occurred but the possibility is there especially given the intention of the occupiers to grow. The next stated day of action is next Tuesday 30th November 2010. The Brunei Suite is a meeting and hospitality venue with a capacity of 250 to 300 people depending on its configuration.
That is a brief outline of the evidence relied upon yesterday. I adjourned the hearing to 3.30pm.
I am genuinely grateful to the students and to their representatives. I was addressed by Ms Hamilton who is a non practising barrister on three possible grounds of defence. Firstly, that the lease allowed for a wider use. Having now seen the lease it is clear that there is no substance in this ground. Secondly, that there has been an infringement of Article 10 and 11 of the European Convention on Human Rights, this is something I will need to return to later. Thirdly that SOAS’s concerns as to repercussions are unfounded and that the sit in has so far been well organised and conducted in an orderly manner.
I would also add that individual students reinforced several points and requested time to find legal representation. I was also told a little more about the occupation in that on Monday a Health and Safety officer toured the Brunei Gallery, that there was no real urgency and that no problems were being caused to SOAS.
I agreed to stand over the proceedings until 2pm today.
The students have been represented by Mr Alexis Slatter along with a junior; Mr Slatter was instructed on their behalf this morning. For her part Miss Holland has produced a further note on the Human Rights issues and a second witness statement from Mr Richard John Poulson.
I rose for 30 minutes to read the witness statement and the key case on Articles 10 and 11, the second witness statement refers to the ongoing concerns of the school which have not been allayed.
Mr Poulson states that the health and safety visit on Monday was swift and since then the occupiers have reconfigured the furniture. He also states that the maintenance, security and cleaning personnel have had no access to the area and therefore SOAS cannot be sure whether any damage has been caused and that the essential services for the entire campus are located within the occupied area. The school has had no access and it is not clear whether one individual is in charge and whether they are able to uphold standards of behaviour.
In addition Mr Poulson referred to the repeated calls for people to join the cause and that although the Cuban big band musical event did not take place yesterday evening a band did play in the Brunei Suite to a ‘packed crowd’ whilst evening classes were going on at the campus. Mr Poulson referred to the potential for other events to cause significant disruption.
Mr Poulson explained that SOAS had deliberately kept a low key security presence but that the security guards have been ignored and that on the evening of Tuesday/ Wednesday individuals attempted to enter through the windows. I can wholly understand the additional concerns of the use of windows as a means of access and egress to the site.
Mr Poulson further states that there will be significantly extra calls on staff time and resources especially over the weekend and that the extra security required will cost in the region of £2,500.
Mr Poulson further explained that there has been a disruption of the business of the school, a diversion of resources and that events of an academic nature have been disrupted. In addition several important events and conferences have been cancelled; they have been relocated where possible although some have been cancelled. For example a significant conference scheduled for this Friday has been cancelled, cancellation fees have been incurred and there has been damage to the reputation of SOAS. If it is necesarry to cancel bookings for the weekend the cost are estimated at £11,000. This is a very significant financial detriment which weighs heavily in the balance that I have to evaluate.
Mr Poulson refers to the lease and states that to his knowledge there is nothing connected with the donation from the Sultan of Brunei that alters the contractual position under the Lease. The school’s policy in response to the occupation has been firstly, to engage in talks with an elected representative of the Student Union. Secondly there is a statement from the Schools Secretary that SOAS will engage in open discussions with the Student Union; this policy was unanimously approved by the governing body in 2009. The SOAS governing body includes representatives from the Student Union.
I shall now deal with how the matter ought to proceed. Miss Holland submitted very strongly for a Possession Order because there was no defence even though counsel had been instructed and there had been sufficient time to get together the bones of an arguable case. If there were any arguable defence I consider it would be right to a little more time, however the only plausible arguments are the human rights arguments. The rights relied upon are Article 10 and 11.
Article 10 provides
‘(1) everyone has the right to freedom of expression. This right shall include freedom to hold opinion and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
Article 11(1) provides
‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests’
However Article 11(2) qualifies this because it says
‘No restrictions shall be placed on the exercise of these rights other than such as are presented by law and are necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the state.’
The question of whether the Articles give a right to protest on private property was considered by the European Court of Human Rights in Appleby v United Kingdom (2003) 37 E.H.R.R. 38. In Appleby the applicants were an environmental group who were collecting signatures and had attempted to set up stands in a private shopping mall. They were prevented from doing so by the Landlord because the private owner took a strictly neutral stance on political issues, although the manager of one shop had allowed them to set up a stand in his shop this consent was subsequently revoked. The applicants relied upon Articles 10 and 11; they also relied upon Article 13 although for present purposes I can ignore that Article. The court held by 6:1 that there was no violation of Article 10 and 13.
At paragraphs 39 and 40 the Court dealt with the relevant general principles. Firstly, the importance of the freedom of expression, secondly that there may be a requirement to take positive measures and thirdly that a fair balance must be struck between the general interest of the community and the rights of the individual.
Turning to the application of these principles the Court summarised the facts and stated that the nature of the convention right was an important consideration, however it was also important to have regard to property rights under Article 1 of Protocol number 1. The court considered arguments that the shopping centre had the character of a quasi-public space and considered that there was inconclusive American authority on this point.
The court expressed their conclusions at paragraph 47 as follows
‘That provision, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (Government offices and ministries, for instance). Where however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights. The corporate town, where the entire municipality was controlled by a private body, might be an example.’
That paragraph appears to me to be clear authority that Article 10 does not give any general freedom to exercise the right on private land. It is only in exceptional circumstances where the Court considered that the inability to exercise the right on private land would prevent any expression of the right.
In the present case it is entirely fanciful to suggest that preventing the students exercising rights in the Brunei Suite would prevent them from exercising their rights of expression.
The proposition that the law requires the property rights of SOAS to be overridden in their own building is unarguable.
Similar considerations apply in relation to Article 11, paragraphs 51-52 of the judgment. It is equally fanciful to suggest that Article 11 requires the court to override the property rights of SOAS.
Mr. Slatter also submits that there may be an arguable defence based on SOAS being a public body. I am not persuade that it makes any difference as there is no dispute that if there is a valid human rights defence it may be raised as a defence in these proceedings. The question of whether SOAS is a public body is relevant to judicial review but it would have to be shown that the decision to seek a possession order was one that no reasonable public body could have taken.
I will assume without deciding the point that SOAS may be a public authority but this argument is wholly without success because of the clear law in Appleby that is was reasonable for SOAS to seek possession and the concerns in the witness statements of Mr. Poulson.
I am not persuaded that there is any defence which offers a realistic prospect of success and it would be wrong to adjourn to allow the Defendants to seek other grounds of defence.
The Claimant is the leasehold owner and has a right to immediate possession. The students are entitled to use the property in accordance with their contracts but these rights do not extend to a sit in which excludes SOAS’s rights of occupation.
I will grant the Possession Order the only issue is whether it should be for the whole of the campus or limited to the Brunei Suite.
In the Supreme Court decision of Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11 Lords Rodger, Neuberger and Baroness Hale all referred to University of Essex v Djemal [1980] 1 WLR 1301. Djemal was an earlier case of a student sit in at
It is a common sense proposition to regard the campus as a single piece of property and to apply the possession order to the whole rather than to part. The situation which needs to be clearly distinguished is where a claimant owns other quite separate property and the possession order will not then apply to property that he has not so far lost possession of.
At paragraph 70 Lord Neuberger explains that Djemal was part of a wider problem and at paragraph 71 states that he does not consider the correctness of Djemal. However, Djemal is still Court of Appeal authority that is binding on me and has not been overruled by Meier
It is right to grant an interim possession order over the whole campus.
