William Norcup-Brown, Ph.D. Candidate in Law, School of Law and Social Justice, University of Liverpool

Over the past two months many British universities have seen protest camps erected on their campuses in response to the Israel-Palestine conflict. Some universities approached this challenge by making early concessions to protestors, for example by agreeing to divest from arms companies or provide scholarships to Palestinian students.

But many university leaders are still seeking to strike a balance between the expressional rights of the protestors alongside their duties to maintain the ordinary functions of the university and the safety of its members. On 12th May the University of Birmingham became the first British university to issue protestors with a notice to quit, warning them to end their occupation of university premises. Since then, others such as the University of Oxford and the University of Manchester have followed suit.

This blog post maps the legal status of these protest camps, outlines the rights of both protestors and university leaders, and discusses important considerations for the future of free speech in the United Kingdom.

Private land, public obligations?

Under the Education Act 1986, university leaders are obliged to ensure that ‘reasonably practicable’ steps are taken to guarantee free speech ‘within the law’ on campus. This obligation includes a duty not to deny use of university premises to protest groups on grounds of their ‘belief or views’, or of the ‘policy and objectives’ of those groups. Discrimination against one political voice but acquiescence towards another would be unlawful.

But the ‘reasonably practicable’ measures that are required under the Act do not necessarily extend to an obligation to tolerate protracted and potentially disruptive occupations of university land.

There is a straightforward explanation for this. Although universities are in receipt of substantial public funding, they are recognised as independent charitable organisations and therefore a branch of the private sector.

Consequently, the land which they possess is not considered public or commons land in English law. University campuses are privately owned land.

In connection with this, it is also not guaranteed that human rights law would provide legal protection for the specific act of erecting protest camps on universities’ private land.

As the Office for Students has stated, most of the universities that are registered with it are public authorities for the purposes of the Human Rights Act 1998. Under section 6 of the Act a ‘public authority’ must not act in ways which would be incompatible with the European Convention on Human Rights. This necessitates a positive duty for them to uphold, among other things, the freedoms of expression and assembly under Articles 10 and 11.

But the European Court of Human Rights has ruled that the contracting state governments are not under a positive obligation to guarantee access to private land as a means of upholding the freedoms of expression and assembly under the Convention. The universities as public authorities would therefore not be required to permit access to their private land to satisfy their section 6 Human Rights Act 1998 obligations.

The court determined that the only exception to this doctrine would be where an applicant could demonstrate that the ‘effective exercise’ or ‘essence’ of their right under the two freedoms had been ‘destroyed’. This threshold is intentionally high, and it would be unlikely that campus protestors could convince a court that all other avenues of free speech outside of the protracted occupation of private university land had been closed off to them.

In recent years the European Court of Human Rights has made steps towards recognising that access to a location ‘within sight and sound’ of an assembly’s target audience is at the ‘very core’ of the freedoms of expression and assembly. But the court is yet to determine that this doctrine might overcome its high threshold for application of those freedoms to privately owned locations, and so it is not likely to guarantee the right to exercise the freedoms on university campuses.

Ultimately, the legal status of the assemblies would likely be determinable under domestic property law.

Property rights and the doctrine of arbitrary exclusion

In English law it is the right of a private landowner to permit or deny access to whomever they wish. Any invasion of land without the licence of the landowner constitutes a trespass, which can be remedied through an order for possession. This occurred in 2023, when the University of Manchester evicted students that had been taking part in a rent strike.

Furthermore, a licence can be revoked by a landowner at any time, unless that owner agreed under contract not to do so. Because many of the campus protests were spontaneously erected, it is unlikely that they are supported by either express or implied contractual consideration.

As such, a court would be likely to regard the right of the protestors to remain on campus as existing only under an implied bare licence – unsupported by contract, and thus easily revocable.

In plain terms, the protestors currently reside on campuses only at the behest of their respective university leaders, who under English property law are free to revoke their tolerance of the camps at their own discretion.

In England and Wales protestors would have to demonstrate that their respective university had entered into a public right of way over the specific parcel of land which they were occupying. This would be recognised as a ‘walkways agreement’ under section 35 Highways Act 1980. In Scotland protestors would need to convince a court that the land they were occupying was burdened by a ‘jus spatiandi’ – a generalised right of access under Scots law which enables third parties to lawfully enter another’s land.

In the likely event that these mechanisms were not present, the private law of real property would permit university leaders to remove the camps from university land.

Legal considerations and the future of free speech

This legal mapping illustrates that the protestors would struggle to establish a lawful excuse for their camps in positive law. Their ‘right’ to remain on university land exists only with the continued acquiescence of university leaders, and they are unlikely to have a substantial defence should their respective universities pursue possession orders.

The legal status of the protest camps demonstrates a growing problem with freedom of speech in the United Kingdom. Alongside ongoing government efforts to stifle protest rights and further criminalise peaceful assemblies, the limitation of human rights obligations for important private landowners such as universities highlights a failure of human rights law to adequately safeguard free speech rights.

The freedom of assembly in particular does not exist in a vacuum. It requires access to physical space in order to be exercised. The inability to engage this freedom on privately owned land necessarily means that lawful protests have to be redirected to publicly owned alternatives, which often results in demonstrations taking place out of sight and sound of their target audiences, greatly minimising their impact.

It remains to be seen whether the European Court of Human Rights will recognise that the right to access important locations within sight and sound of a target audience can be equally significant, within the confines of proportionality, across both private and public settings. But until it does, free speech rights in the United Kingdom may become less and less meaningful.



William is AHRC (North West Consortium Doctoral Training Partnership) Ph.D. Candidate in Law [Grant Number: AH/R012792/1], School of Law and Social Justice, University of Liverpool. He can be contacted on w.norcup-brown@liverpool.ac.uk.

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