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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> University of Birmingham v Persons Unknown & Anor [2024] EWHC 1770 (KB) (09 July 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/1770.html Cite as: [2024] EWHC 1770 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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University of Birmingham | Claimant |
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- and - |
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(1) Persons Unknown (2) Mariyah Ali |
Defendants |
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Liz Davies KC and David Renton (instructed by Hodge, Jones and Allen) for the Second Defendant
Hearing date: 4 July 2024
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Crown Copyright ©
Mr Justice Johnson:
The test for granting a summary order for possession
"Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions… will include the allocation of the claim to a track or directions to enable it to be allocated."
The issues
The facts
(1) The statements of case, so far as the University's summary of facts in the particulars of claim is admitted in the amended defence.
(2) A judgment of Ritchie J given at an earlier stage of these proceedings: [2024] EWHC 1529 (KB) at [5] – [29].
(3) Written witness statements of Ms Ali.
(4) Written witness statements of Dr Nicola Cárdenas Blanco, the University's director of legal services, together with exhibits to those statements.
(5) A written witness statement of Mark Lawrence, the University's head of community safety, security and emergency planning, together with exhibits to that statement.
(6) Written witness statements of Jon Elsmore, the University's director of student affairs, together with exhibits.
"which requires the University to have due regard to the need to eliminate discrimination, harassment, victimisation, and to advance equality of opportunity and foster good relations between people who share 'protected characteristics' (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation) and those who do not.
…
…for freedom of speech, the University 'must promote the importance of freedom of speech and academic freedom', and must 'take such steps as are reasonably practicable' to secure freedom of speech within the law. For other duties, including PSED… universities are required to 'have due regard' to the need to achieve the aims of these pieces of legislation. Therefore, in balancing these obligations and making decisions, the University will be mindful that it has a particular responsibility to promote and protect freedom of speech."
"Where the Head of School or Head of College's assessment is that there are particular risks raised by the event that require a fuller risk assessment and mitigations to be put in place, this should be escalated to and discussed with the Pro-Vice-Chancellor (Education) or the Pro-Vice-Chancellor (Research), who are the Authorising Officers for education and research activities respectively (see section 7.2). Examples of where this might be the case are: teaching or research seminars that involve speech which may fall within paragraph 5.2 of Appendix B; …or where other risks are raised by the event (for example due to the prevailing political context, or the timing or physical location of the event…). On these occasions, relevant aspects of the procedure in Appendix B of this Code should be followed. Examples include the completion of a risk assessment, and identification and implementation of mitigations that are relevant to the teaching or research activity. The Head of School should discuss these with the Authorising Officer, who is responsible for approving whether academic-related activities that have been escalated in this way may go ahead."
"You may have seen that a group of tents has been set up on the Green Heart by individuals protesting in support of Palestine and I wanted to address this in this message. Firstly, I want to emphasise that we will support students who wish to take part in protests about issues that they care deeply about. There are many ways in which this can be done lawfully, including through authorised demonstrations and our staff have worked with students over recent weeks and months to encourage this wherever possible. However, this does not extend to setting up tents where there is no authority or permission to do so. Although the camp has been largely peaceful to date, the Green Heart is a space which is important for University activities, and the presence of the camp (which has also included those who are not members of the University community) causes disruption to current and planned University activities in and close to that area. This includes examinations, the summer programme activities, which take place from the start of June, and the July degree ceremonies. It is also true that camps at other universities have led to incidents that we do not want to see repeated here.
While I have informed the students involved that I am unable to meet with them whilst the camp is in place, members of the University's senior team are visiting the camp daily for welfare checks. Once the encampment ends, I remain open to meeting with them. As I have said above, there are other ways in which protests can be done lawfully, and we are happy to discuss and facilitate these with the organisers so that those who wish to can continue to protest…"
"The encampment has caused ongoing disruption to the wider university community, with a number of complaints and concerns raised by staff and students - in particular our Jewish staff and students who have described the encampment as having created an uncomfortable and hostile environment. The permanence of the camp is creating an increasingly uncomfortable and hostile environment for all others who use the campus including members of staff. The protestors have stated that their intention is to disrupt University business. Masked protestors have shouted at staff, blocked people's movement around campus, attempted to force their way into University meetings. On Wednesday 5 June 2024 several buildings across the campus were vandalised by masked individuals. This included spraying red paint across a large part of the front of the Aston Webb building, damaging an important sculpture which is part of the University's Research and Cultural Collections. This act of vandalism was posted on social media by pal_action who state that the action was carried out by midlands_pal_act being one of the groups associated with the camp and it was supported on social media by the bhamliberationzone account."
The decision to bring possession proceedings
"…there had been escalation and growing disruption to University business and student events. There had been several incursions by members of the camp wearing masks into Aston Webb. There had been a demonstration outside the meeting of the Investment Sub-committee. Attempts had been made by protestors to enter the Vice-Chancellor's Office. The student summer programme due to be held in the Green Heart and Chancellor's Court had been disrupted as the encampment occupied the spaces where the programme was to be held. The Graduation Ball due to be held in Chancellor's Court was also at risk of not going ahead. Those in the encampment had stated publicly their intention to disrupt University activities. It was particularly concerning that junior members of staff had been targeted and reported feeling intimidated and upset by the masked protestors. There was a significant risk that the encampments and actions of protestors would disrupt the forthcoming Graduation Ball, Open Days, and Graduation Ceremonies. Other universities with encampments had seen growing escalation with very concerning incidents at Manchester, Oxford, Leeds and Exeter. Nottingham, the only University to go to court to date over the issue, had not experienced such escalation; the University had made offers to the encampment to meet them to listen to their concerns and to offer alternative means for them to protest peacefully if they ended their encampment but all these had been rejected by the camp with the message that they would only meet the Vice-Chancellor to discuss their demands. The University would make another offer to meet this week, this time with the Pro-Vice-Chancellor (Education), noting the threat to the Graduation Ball and other student events;
…
UEB discussed the matter. UEB… noting its concern over the camp's disruption of and risks to University business and key events for students, such as the Graduation Ball and Graduation Ceremonies, as well as the Open Days.
Resolved that in relation to the encampments, the University would:
(i) apply for a Possession Order in the High Court…
(ii) continue to make further attempts to engage with the encampment, noting the Pro-Vice-Chancellor (Education) would offer this week to meet the encampment."
"Taking legal action is not a step that any of us would take lightly and I recognise that not everyone will agree with this approach. This is now necessary as a result of the escalation and unacceptable behaviour, and in order to look after the interests of the whole University community, including students and graduands, and their families and friends who wish to enjoy their graduation ceremonies without concern that their special day will be disrupted."
Procedural background
(1) in respect of part of the University's land known as "Chancellor's Court" against all defendants.
(2) In respect of Edgbaston Campus against all those in occupation of that campus save for any of the University's students or staff.
Does Ms Ali have a real prospect of successfully defending the claim?
(i) Unlawful discrimination: section 13 of the Equality Act 2010
(ii) Breach of public sector equality duty: section 149 of the 2010 Act
"Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act…
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
…
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a)tackle prejudice, and
(b)promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
…
religion or belief;
…
…"
(1) The intention of Parliament that considerations of equality of opportunity are placed at the centre of formulation of policy by all public authorities.
(2) The heavy burden on public authorities in discharging the duty and ensuring the availability of evidence to demonstrate that discharge.
(3) The obligation to fulfil the duty before and at the time when a particular policy is being considered.
(4) The obligation to assess the risk and extent of any adverse impact and the ways in which such a risk may be eliminated, before adopting a proposed policy.
(5) The need for the duty to be discharged in substance rather than by ticking boxes.
(iii) Breach of section 43 of the Education (No 2) Act 1986
"Freedom of speech in universities, polytechnics and colleges
(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
(2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—
(a) the beliefs or views of that individual or of any member of that body; or
(b) the policy or objectives of that body."
(iv) Breach of Convention rights: section 6 of the Human Rights Act 1998 read with articles 9, 10 and 11 of the Convention
Is there any other compelling reason why the claim should go to trial?
Claim against "persons unknown"
Relief
Outcome