Israel’s assault on Gaza, following Hamas’ attack in October 2023, has become the subject of international legal proceedings and mass protest. Over the past eight months, university students have set up encampments at dozens of universities in Europe and North America. In most cases, they are protesting their university’s financial ties to Israeli companies and universities.
Universities have long been considered “hotbeds” of protest. Research has found a correlation between the number of universities in an area and higher overall levels of protest activity, suggesting that they are indeed fertile ground for activism.
Free speech and academic freedom are a key part of how universities operate. But they also have to deliver education and protect students and staff from harassment. The balance can be delicate.
University leaders have struggled with how to respond to the latest round of protests. Some, like at Trinity College Dublin, have agreed to protesters’ demands to divest from Israeli companies. Protesters at the University of Cambridge agreed to move after university leaders said they would negotiate.
In May, the University of Birmingham issued a notice to quit to protesting students, indicating they had trespassed and threatening to call the police. Days later, 16 Oxford students were arrested under public order legislation after entering and seeking to occupy the vice chancellor’s office.
US universities have taken a more aggressive approach, calling for police intervention to clear encampments. More than 2,100 arrests have been made, and police have employed militarised tactics, including the use of tear gas, rubber bullets and other violent techniques to break up protests.
These were unacceptably disproportionate responses to what was mostly peaceful protest. Many suppose that such scenes would not happen in the UK. But in fact, UK law gives police incredibly potent powers to deal with public protest, with recent legislation being the most extreme.
Read more: Policing bill is now law: how your right to protest has changed
The disjointed response to protest so far may owe something to the mess of complex and novel legislation and case law. The political context also raises questions about the law and policy on harassment and discrimination, especially as it relates to the question of antisemitism.
This is why we, as scholars of constitutional law and protest, have set out our views on how these protests should be handled. Both of us have worked in advisory capacity with parliamentary select committees dealing with constitutional and human rights questions. One of us (Jeff) chaired a university academic board working group on the definition of antisemitism, while David is (in his co-author’s view) the leading scholar on protest law.
We have drafted a detailed set of principles setting out what we believe are fair terms for universities and students alike. These take into account existing law and policy, and ultimately aim to prevent harmful escalation without inhibiting the freedom of peaceful assembly.
The principles
While the extended and detailed account can be read here, what follows is a high-level summary. The principles mostly detail relevant law, but in some cases also express our view of university best practice requires.
Students have the right to freedom of expression and of peaceful assembly and association, under Articles 10 and 11 of the European convention on human rights (ECHR). UK public universities are required to respect and secure those rights under the Human Rights Act 1998. These laws protect a freedom of peaceful protest even if it is disruptive or even offensive to some.
The freedom of expression and peaceful assembly extends to student occupations of buildings and other university spaces. This can even include lengthy ones that breach domestic law.
Calls for boycott and divestment from companies implicated in human rights abuses is a common and protected form of civil rights advocacy, and is not in itself antisemitic.
Human rights law recognises that the right to protest may be restricted where it is necessary in a democratic society. A university has rights as a landowner, and contractual obligations to maintain its core educational functions, including fulfilment of the right to education under the ECHR.
A tent encampment aimed at protesting a university’s investment programme (and which limits noise and other disruptions from unduly interrupting revision, teaching, examining and other core educational functions) would fall within the sphere of protected speech and assembly. Universities must accommodate them.
On the other hand, universities and their students are not legally required to withstand a permanent and seriously disruptive occupation that brings campus life and activities to a halt. Protests that directly obstruct teaching and examining (for example, occupying a lecture theatre in the middle of teaching) to a major extent can be subject to legitimate restriction.
Protesters can also, in some grave situations, be liable to criminal prosecution. For example, by using threatening or abusive language, or inciting racial or religious hatred, aggravated trespass or failure to comply with police directions.
Universities can restrict disruptive protesting to students and staff, and ask uninvited persons to leave. However, they should not exclude guests invited there for political discussion only.
The use of criminal law against students (for example, by calling the police) has grave consequences and will normally be a disproportionate act of escalation. UK statute and case law relating to the application of criminal law to public protest stands a significant chance of being found to violate the ECHR. Universities should not call the police where civil remedies (such as possession) are a suitable alternative.
Universities have a moral duty to ensure that campus is free of harassment and racism as defined under the Equality Act 2010, and that it is safe for all members of the university (and non-members legitimately present on campus).
Universities should record and investigate any complaints about harassment or discrimination arising within or from encampments. However, complaints alone are not a sound basis for policy. To amount to discrimination under equality law, complaints must be assessed and determined on an objective basis.
Protesters should recognise the role of self-restraint and self-vigilance in respect of the university’s educational mandate and duty to prevent harassment.
What we want to see
In publishing these principles, we hope to clarify a university’s powers to act, and students’ rights to protest peacefully (but disruptively) within the bounds of human rights law.
We hope universities will recognise and respect these principles. And we hope that protesters might gain a better understanding of when the law is and is not on their side – and where sympathies may fray.
But we also underline here that the law is only part of the picture. Whether or not a university can act is not the same as whether it should. Above all, it is crucial to remember that universities are unique, educational communities where political disagreement should be nourished, not quelled.
Just as we, as academics, enjoy statutory protection of our academic freedom, we should expect universities to show tolerance toward students as they navigate the sometimes treacherous foothills of participatory democracy.
This piece has been updated to say that Trinity College Dublin, not University College Dublin, agreed to protesters’ demands to divest from Israeli companies.
Jeff King has received funding from the Arts and Humanities Research Council, Alexander von Humboldt Foundation and the Leverhulme Trust. He is a member of University and College Union and is currently Director of Research of the Bingham Centre for the Rule of Law.
David Mead is a member of the University and College Union, and Liberty's Policy Council. He has previously received funding from the Article 11 Trust
This article was originally published on The Conversation. Read the original article.
