Direct Action for Divestment and the Right to Peaceful Protest on Private Property

Last month, a group of Oxford students occupied the Front Quad of St John’s College for five days protesting against the college’s continued investment into fossil fuel companies, including £8.1m currently held in Shell and BP. The demonstrators left the quad voluntarily on Saturday evening, stating that they had succeeded ‘in reigniting a conversation [around divestment] not only within St John’s, but across the University,’ and threatening that they would be back if progress is not made.

The protests raise interesting legal questions as to the circumstances in which ownership rights might be qualified by other fundamental rights. Let us imagine that St John’s had decided to initiate legal proceedings to have the demonstrators forcibly removed. Could the students have resisted expulsion on the grounds that this would have amounted to a disproportionate interference with their rights to freedom of expression (Article 10 ECHR) and freedom of association (Article 11 ECHR) under the European Convention of Human Rights?

Oxford colleges are best analysed as ‘hybrid public authorities’ for the purposes of the Human Rights Act 1998 (Aston Cantlow v Wallbank [2003] UKHL 37, Lord Nicholls). It follows that the duty imposed by s.6(1) not to act incompatibly with Convention rights will not be a universal one and that it will not extend to situations where the act in question is of a ‘private nature.’ The right to exclude trespassers arguably falls in the latter category, not least since it is a remedy available to all persons with proprietary interests in land and has no direct connection to any of its public functions.[1] It follows that this must be analysed as a ‘horizontal’ dispute with the college itself, as a private party has no direct obligations to respect the protestors' Convention rights when seeking to evict them from their private property (see e.g. Baroness Hale in Campbell v MGN [2004] UKHL 22 at [132]).

There is, however, an alternate way in which the students could bring their Convention rights into play. S.6(3)(a) makes clear that courts and tribunals are themselves public authorities, and that they therefore have an obligation to act in a Convention compliant manner. Though demonstrators may not be able to invoke their Convention rights directly against the college, their claim could be reframed in terms of a positive obligation owed by the State to secure their rights to freedom of speech and freedom of association against disproportionate interference by the college. As noted by Mead, this might require courts to ‘develop or re-align the common law rules…of trespass so as to better protect the right to peaceful protest,[2] in a similar fashion to the way in which courts have drawn upon Convention rights in order to develop breach of confidence into a free-standing right to privacy (McKennitt v Ash [2006] EWCA Civ 1714).

In Appleby v UK ((2003) 37 EHRR 38, the ECtHR accepted that such a positive obligation could in principle arise in this context, and that the applicant’s Article 10 and Article 11 rights were engaged. Nevertheless, it considered that there had been no infringement on the facts. The court considered that although the applicants had been prevented from distributing leaflets in a privately-owned shopping centre in the middle of town, the restrictions did not have the effect of ‘preventing any effective exercise of freedom of expression.’ The ‘essence of the right’ was preserved since, by the applicant’s own admission, the campaign could have been carried out elsewhere in town, or through other means.

The reasoning in Appleby suggests that a right to access private property for the purposes of peaceful protest can be envisaged 'only in the most extreme circumstances.’[3] On closely analogous facts, in SOAS v. Persons Unknown (25 November 2010, unreported), Henderson J bluntly stated that ‘[t]he proposition that the law requires the property rights of SOAS to be overridden in their own building is unarguable.’ Similarly, in University of Sussex v. Persons Unknown ([2013] EWHC 862 (Ch)), Sales J considered that ‘the continuation of the protest, denying the University its property rights would be a plain breach of domestic law’ because ‘the protest had been going on for a long time and because of the availability of other means of protest.’ (Manchester Ship Canal Investments [2014] EWHC 645 (Ch).) The same result was reached in University of Birmingham v Persons Unknown [2015] EWHC 544 (Ch).

On the assumption that it is not for the domestic courts ‘to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies,' it is difficult to fault that proposition as a matter of positive law (Lord Hope in Ambrose v Harris [2011] UKSC 43 at [12]). There are clearly multiple alternative means by which the protestors could have exercised their rights to freedom of expression and association: for instance, by protesting on the pavement outside the college (though to comply with the limits contemplated by the House of Lords in DPP v Jones [1999] 2 AC 240, the demonstration would likely have had to take a more transient form).

Nonetheless, although the availability of alternatives clearly ought plainly to be a relevant consideration in balancing the competing rights and interest involved, Mead has persuasively argued that Appleby ‘underplays the importance of autonomy and choice in determining content and forms of expressive activities,’ and ‘ignores the fact that a chosen location may be ‘uniquely positioned’, have a ‘close connection’ or ‘symbolic importance.’’[4]

An unfettered right to exclude, even for private landowners, represents an over-simplistic solution which gives insufficient weight to the importance of a right of access as a corollary to effective democratic participation and free discourse in the public sphere. As noted by Lamer J, ‘freedom of expression cannot be exercised in a vacuum…it necessarily implies the use of physical space in order to meet its underlying objectives.’ (Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4^th) 385, 394 (Canadian Supreme Court)).

A binary division between public and privately held land for these purposes fails to distinguish between the diverse contexts in which land is privately owned. In Appleby (at para 44), the ECtHR itself recognised that the shopping centre could be regarded as a ‘quasi-public space’ which, alongside its primary commercial function, served as a gathering place in which individuals are ‘encouraged to linger and participate in a wide range of activities – from entertainment to community, educational and charitable events.’

Notwithstanding the appearances created by their imposing gate towers and crenelated walls, as a matter of substance, Oxford colleges could be distinguished from the aphorism that an ‘Englishman’s home is his castle’ on similar grounds. Though the public at large might not typically congregate in the enclosed college quads, students and fellows certainly do. In rethinking this area of the law, we must also examine the interrelationships between: (a) the physical space, (b) the subject of the demonstration, and (c) the persons involved. The language of ‘quasi-public’ has strong intuitive appeal and features heavily in the jurisprudence in this area, however one of the risks of adopting this terminology is that it fails to truly move beyond the public / private distinction which it is perhaps designed to overcome, and itself elides the nuanced and diverse ways in which land is owned and used.

As recognised by Judge Maruste (partly dissenting) in Appleby: ‘it would clearly be too far-reaching to say that no limitations can be put on the exercise of rights and freedoms on private land or premises,’ yet ‘the old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society.’ Though it is unimaginable that the rights to peaceful protest could ever justify a permanent or unconditional right of occupation for protestors, on fact patterns such as the present, it is submitted that private landowners ought to be required to tolerate non-disruptive protests on a temporary basis.

It is tentatively submitted that, notwithstanding the fact that courts seem to uniformly prioritise property rights over the protestors' rights to freedom of expression and association, there is more support in the case law for such a proposition than might appear at first sight. In numerous cases, such as in City of London v Samede [2012] EWHC 34 (QB) and in University of Sussex v Persons Unknown (above), courts have emphasised that protests had already continued for some time. Perhaps the protestors had simply already been afforded sufficient opportunity by the landowners to have their say.