Picketing and Protest on Campus

Legal Academics Strike Again are concerned to see certain universities taking a very heavy-handed position concerning picketing and protest on campus. This includes, for example, forcing UCU members to the very outside of campus land, to the gates, far away from their departments; using security to closely monitor picketers; and warning union members and students that the university is "private land".

Several anonymous LASA contributors have collaborated on the following outline of the legal and political issues. We've done it in the form of a mock undergraduate law question - so feel free to share with your students, if they are wondering what's going on! And thank you *very* much to all who have contributed (you know who you are).

Love and solidarity
Legal Academics Strike Again xxx

Malik is an early career lecturer at a UK university.  He is participating in the UCU strikes. 

Malik is standing at the university gates on the picket lines. His university’s management have forbidden pickets to assemble inside the gates, saying that the university is private property, and strikers who come onto university land will be trespassing. A special strike walking tour of campus has, accordingly, been cancelled. Malik is frustrated. At the gates, picketers never have more than a few seconds to persuade people not to pass the pickets. He feels that if strikers could come on campus to demonstrate, they could communicate their message much more effectively. He has himself participated in a range of demonstrations on private property, and doesn’t understand what makes demonstrating on campus different.

In 2010, students peacefully occupied some of the university’s buildings to protest the introduction of higher student fees. Back then, the university got a court order to remove them from the campus.  When police came to enforce the order, they kettled the students until they agreed to leave. Some of the students were arrested and the university suspended them for months.

Since then, the university’s management has been hostile to any protests or demonstrations on campus. The campus is now a sterile environment for protest, but if you look closely you’ll see some blue plaques commemorating its associations with suffragettes, and the radical student movement of the 1960s. Malik finds the hypocrisy a bit hard to take.

Advise Malik.

Malik, we understand your frustration at management’s attitude to protest. Solidarity. 

Malik, trespass is not a crime. It would not be a criminal offence for you and your colleagues to assemble on campus in the open air, and to communicate your demands to the university community. So, we don’t anticipate that the university would be able to involve the police,   unless you and your comrades made some key missteps. Read on!

We are assuming you don’t need to force entry. (It would be pretty extreme of the university management to lock you out, after all…)

Although trespass is not a crime in itself, if you go ‘too far’ you may find yourself affected by the Criminal Justice and Public Order Act, 1994. This Act gives the police powers to prevent extraordinarily disruptive or damaging trespass, including by immediately arresting participants. You probably won’t be surprised to know, Malik, that these powers are most often used against nomadic groups, such as Travellers, or against transgressive social groups like ravers.

Malik, assuming you wanted to be as certain as possible of avoiding arrest, you would have to  take the time to plan your action carefully. The police have significant discretion here. You would need to remain polite and non-threatening, so that you cannot be accused of any criminal offences - for example, ‘aggravated trespass’. You would need to make sure your demonstration does not obstruct, harass or intimidate anybody in going about their ordinary workplace activities. You could be in the university space but not attempt to control it. You would have to be absolutely charming, Malik (and try not to think too hard about what Foucault would say). You don’t need us to tell you that some comrades are more vulnerable to being cast as “intimidating” than others, so think carefully about who will be on the line. In the unlikely event that the police did arrive, you would need to comply with any directions to move on, to avoid arrest. 

But Malik, the trouble is that, even if your trespass cannot be criminalised, it may place you and more likely your union at risk of an action in tort, by the university. Essentially the arguments they could make in court might include, for example, that you and your fellow picketers are inducing others to breach their own contracts of employment with the university or interfering with their right to enjoyment of their private property. So to be safe, you should follow the same suggestions above in general when picketing anywhere, even outside the university gates: be polite, don't have a fight with security, and don’t harass, obstruct or intimidate. But you should also publicly campaign for, and gain, the university’s permission to protest on campus. This isn’t as far-fetched as it seems - plenty of universities understand their role in making space for free speech and are held to this standard by students and the wider public. Read on, Malik, because this is the human rights bit you have been waiting for. 

Your university has obligations as a public authority under s. 6 of the Human Rights Act. This means that, in deciding how to regulate on-campus protest, they must balance yours and your comrades’ rights to freedom of assembly and expression against any likely harms that the exercise of those rights might cause. In order to justify keeping you off campus, the university must be able to identify some real, precise and significant risks associated with your being there. Have they publicly identified any such risks, Malik? No, we didn’t think so.

Lots of universities are instructing their students to pass the picket, so presumably they acknowledge that you and your colleagues are peaceable demonstrators. They are damaging the effects of your demonstration for no real reason. And, by definition, with just 4 days of strike action left (for now) your on-campus action would be temporary. Perhaps the bosses are over-reacting. Their complete ban on any strike demonstrations on campus, Malik, sounds a lot to us like an unreasonable and disproportionate infringement of yours and your comrades’ human rights. So, follow this example, call your employer out, and persuade them to permit you to assemble on campus.

It’s up to you what you decide to do now, Malik. We can’t give you professional legal advice, and you will want to consult with your union. But please be assured - the university’s legal position isn’t as strong as they might think!