HEARING DATE 26 April & 25 May 1990
Education - University - Freedom of speech - Permission sought for political meeting within university precincts - Possibility of public disorder both within and outside university's precincts - University refusing permission for meeting - Whether university in breach of statutory duty to ensure free speech - Whether university having power to restrict publicity and admission to meetings - Education (No. 2) Act 1986 (c. 61), s. 43
HEADNOTE
In October 1988, the University of Liverpool Conservative Association applied for and was granted provisional permission by the university authorities to hold a meeting on 11 November 1988 to be addressed by a South African diplomat. After consulting the police, the university withdrew the permission because it was not reasonably practicable to make adequate arrangements to ensure the maintenance of good order both at the meeting and in the residential area adjacent to the university. The association appealed to the vice-chancellor who rejected the appeal. The association then sought permission for a meeting on 20 January 1989 to be addressed by two South African diplomats. Permission was granted on condition that entry should be restricted to students and staff of the university; that while the association could issue invitations to its own members, no other publicity would be permitted apart from the posting of notices within the university on the day of the meeting; and that attendance be limited to the capacity of the venue and admission be by staff or student card. Subsequently the permission to hold the meeting on 20 January was withdrawn because of the fear of public disorder outside the university.
On an application by the chairman of the association for judicial review of the university's decisions and declarations that the university had acted contrary to section 43 of the Education (No. 2) Act 1986 s. 43 by failing to take such steps as were reasonably practicable to ensure freedom of speech.
Held, that on the true construction of section 43(1) of the Education (No. 2) Act 1986 in the performance of its duty to take reasonable steps to ensure freedom of speech a university was not entitled to take into account threats of public disorder outside the university precincts by persons not within its control; but that the university was not acting ultra vires in breach of section 43 in imposing conditions restricting publicity and admission to meetings and in reserving the right to charge the association with the costs of security where such conditions were considered necessary in the interests of free speech and good order; and that, accordingly, the applicant was entitled only to a declaration that the university could not take into account the likelihood of public disorder by the general public outside its precincts when exercising its duty under section 43.
INTRODUCTION
APPLICATION for judicial review.
By notice of motion dated 26 May 1989 the applicant, Andrew Caesar-Gordon, chairman of the University of Liverpool Conservative Association, sought, inter alia, a declaration that conditions imposed by the university in relation to the meeting held on 20 January 1989 were ultra vires the University of Liverpool being in breach of section 43 of the Education (No. 2) Act 1986; and, by amendment, a fourth declaration that in the performance of its duty under section 43(1) of the Act of 1986 a university should not take into account any risk of public disorder being disorder which might occur other than within the university's private property and disorder there occasioned by members of the general public being persons over whom the university had no control save and unless and to the extent that such public disorder gave rise to a risk of disorder in the university precincts or otherwise affecting its property, students or members or the risk of disorder occasioned (wherever that might occur) by persons over whom it did have control.
The facts are stated in the judgment.
COUNSEL
Richard Slowe and Simon Walsh for the applicant. In the performance of its duty under section 43(1) the university is not entitled to take into consideration threats of disorder outside the university by persons not in statu pupillari. It is for the police, not the university authorities, to balance the requirements of free speech against the threat of such external disorder. Under common law a police officer could have stopped the meeting if he reasonably anticipated a breach: see Duncan v. Jones[1936] 1 K.B. 218. If asked to do so by the police the university vice-chancellor might have had to call the meeting off, or commit obstruction. The university registrar can take advice on the risk where there is a risk within the purview of the university but cannot take account of a substantial risk of riot elsewhere. The university is not entitled to deviate from its positive mandatory duty under the statute. It is conceded that it is proper for the university to take into account a risk of disorder within the university precincts or by its students outside those precincts.
Andrew Sander for the university. It is illogical, artificial and irresponsible to take account of the risk of serious public disorder on university property or outside the university involving its personnel but ignore other risks of disorder. Large-scale disorder was expected. A university cannot be expected to isolate itself from what is happening off its premises. It cannot say to the surrounding community: "The threat of violence is your problem. We are going ahead." It can properly take account of the risk of outside violence, even if it is not expected to spill over onto university premises. It is a legitimate function of the university to foster relations with the local community. It is a consideration which relates to the practicability of holding the meeting. The court should say that reasonable practicality entitles the respondents to take account of the possibility of injury to persons or damage to property in the local community. Parliament cannot have expected universities to place themselves in an ivory tower. The purpose of section 43 is to require the university to undertake a balancing exercise and this it had done.
Slowe replied.
Cur. adv. vult.25 May 1990
PANEL: Watkins L.J. and Potts J
JUDGMENT BY WATKINS L.J The applicant, Mr. Caesar-Gordon, the chairman of the University of Liverpool Conservative Association applies by leave of Otton J. for judicial review of decisions of the respondents, the University of Liverpool, made in 1988 and 1989. The history giving rise to the application can be shortly stated.
On 18 October 1988 the association applied to the University Guild of Undergraduates, for permission to hold a meeting on 11 November 1988 to be attended and addressed by a member of the South African Embassy in London. On 19 October 1988 provisional permission to hold the meeting was granted subject to special conditions and "co-operation of the police outside the building." Thereafter officers of the university were in contact with the Merseyside Police Force. In particular on 4 November 1988 the university security officer met and had a discussion with officers of that force. This was followed by a meeting on 7 November 1988 between the senior assistant registrar, the university security manager and police officers. In consequence on 8 November 1988 the registrar of the university wrote to the applicant informing him that he had decided to withdraw permission for holding the meeting. The letter stated, inter alia:
"Having made extensive inquiries and having considered such conditions which might be imposed, I am satisfied that in the circumstances of this case it is not reasonably practicable to make adequate arrangements to ensure that good order will be maintained. Pursuant to paragraph 2(i) of the University's Code of Practice on Freedom of Speech you have the right to appeal against this decision to the vice-chancellor who will then determine the matter in consultation with the president of the council."
On 9 November Mr. Baldwin, predecessor of the applicant as chairman of the association lodged an appeal to the vice-chancellor against this decision. At the appeal the registrar and senior registrar confirmed that they had received representations from a wide range of people concerning the proposed visits. They stated:
"The indications given by all of these were that, bearing in mind the strong emotive feelings that racial matters always aroused in the residential area adjacent to the university, a demonstration of major proportions against the visit would take place."
The vice-chancellor and the vice-president of the council of the university were informed of the meetings which had taken place between university officers and the police. The vice-chancellor, with whom the vice-president agreed, determined that, in the light of all the circumstances, the decision of the registrar should stand.
On 9 November 1988 the vice-chancellor by letter informed Mr. Baldwin that he had determined that the decision of the registrar should stand and that the invitation to the South African speaker must be withdrawn. Thus, the proposed meeting of 11 November 1988 did not take place.
On 30 November 1988 the association made an application to the Guild of Undergraduates for permission to hold a meeting on 20 January 1989 to be addressed by "two first secretaries from the South African Embassy." By letter dated 9 December 1988 Mr. Baldwin was informed that the application was:
"Provisionally agreed, subject to special conditions and co-operation of the police outside the building."
The special conditions were, as later revised and as relevant:
"1. Attendance at the meeting is to be confined to students and staff of the University of Liverpool. Admission tickets may be personally issued to members of the University of Liverpool Conservative Association by an officer of the association no earlier than 13 January 1989. Publicity advertising the meeting to all members of the university should only be issued in accordance with paragraph 2 below.2. Other than the issuing of invitations to members of the University of Liverpool Conservative Association as indicated above, there is to be no publicity of any kind for this meeting (including the production of leaflets and posters and the issuing of press releases), except that notices advertising the meeting may be posted within university premises, provided that such notices are not displayed before 9 a.m. on 20 January 1989 and that the wording of such notices has been cleared with the permanent secretary and bursar in advance. The intention to hold such a meeting should not be disclosed to any person other than a bona fide officer of the association or an authorised officer of the university. Any requests for information should be referred to the registrar, without comment.
3. The number of people attending the meeting will be limited to the capacity of the venue (320 persons in the case of the Stanley Theatre). These persons will only be permitted to enter on production of a valid University of Liverpool student or staff card."
On 12 January 1989 Mr. Baldwin, on behalf of the association, appealed against the imposition of the original conditions. Having heard representations the vice-chancellor, in consultation with the president of the council, decided to vary the conditions attached to the proposed meeting of 20 January 1989. By letter dated 13 January 1989, the vice-chancellor informed Mr. Baldwin of the conditions as revised. Between 13 January 1989 and 18 January 1989 officers of the university received information from the police regarding the likely effect of the meeting of 20 January 1989 were it to take place. The police were very concerned about what in particular might happen in nearby Toxteth with its large coloured population. The university paid careful heed to that. By letter dated 18 January 1989 the registrar informed Mr. Baldwin that he had decided to withdraw permission for the meeting of 20 January 1989. He stated:
"Since the vice-chancellor's letter to you of 13 January, revising the special conditions, I consider that there has been a material change in the circumstances, which renders it likely that good order will not be maintained at the proposed meeting scheduled for 20 January."
Having set out matters of particular concern the registrar concluded:
"Having considered the situation most carefully, I have therefore decided that the material change in circumstances that has now occurred is such that it is no longer reasonably practicable to make adequate arrangements to ensure that good order will be maintained (reference special condition 10 and paragraph 2(h) of the Code of Practice on Freedom of Speech). Permission for the meeting is hereby withdrawn. Pursuant to paragraph 2(i) of the university's Code of Practice on Freedom of Speech, you have the right to appeal against the decision to the vice-chancellor who will then determine the matter in consultation with the president of the council."
On 18 January 1989 Mr. Baldwin appealed against this decision. The appeal was heard by the vice-chancellor and the president of the council in the presence of the senior assistant registrar on 19 January 1989. Later that day the vice-chancellor wrote to Mr. Baldwin and stated:
"In consultation with the president I have reviewed the decision of the registrar to withdraw permission for the meeting. Having carefully considered all the evidence and the representations you have made, I have decided to uphold the registrar's decision. I confirm therefore that permission for the meeting is withdrawn. We shall notify the South African Embassy accordingly."
As before, permission was in fact withdrawn because the university feared that in the event of the meetings taking place public violence would erupt in Toxteth.
In this court the following concessions were made:
"(1) The university concedes that when deciding to impose conditions on the holding of the two University of Liverpool Conservative Association speaker meetings and then subsequently deciding to ban each of them it took into account the risk of public disorder, that is to say: (i) disorder which might occur other than within the university's private precincts or otherwise affect its private property; (ii) and disorder there occasioned by members of the general public, being persons over whom the university had no control.(2) The applicant concedes that the university quite properly took into account when making its various decisions: (i) that there was also a risk of disorder in the university precincts or otherwise affecting its property students and members, (ii) and, also the risk of disorder occasioned (wherever that might occur) by persons over whom it did have control."
By his notice of application the applicant sought review of the following decisions. (1) The decision made on 8 November 1988 to withdraw permission for the association to hold a meeting on 11 November 1988. (2) The decisions made on 7 December 1988 and 13 January 1989 to impose certain conditions in relation to a meeting to be held by the association on 20 January 1989. (3) The decisions made on 18 and 19 January 1989 to withdraw permission for the meeting to be held on 20 January 1989.
The relief sought was:
"1. A declaration that the decisions to withdraw permission for the meeting to be held on 11 November 1988 were ultra vires the University of Liverpool being in breach of the provisions of section 43 of the Education (No. 2) Act 1986."2. A declaration that the following conditions imposed in relation to the meeting to be held on 20 January 1989 were ultra vires the University of Liverpool being in breach of section 43 of the... Act:
2.1. Requiring that information about the meeting be treated as confidential until 9 a.m. on the day of the meeting.
2.2. In the circumstances of such restriction, requiring that attendance at the meeting only be permitted to those producing a valid student or staff card.
2.3. The decision to reserve the right to charge the association with the cost of security at such meetings.
3. A declaration that the decisions on 18 and 19 January 1989 to withdraw permission for the meeting to be held on 20 January 1989 were ultra vires being in breach of section 43 of the... Act."
In this court the applicant abandoned the relief sought under paragraphs 1 and 3. Instead he seeks, in addition to a declaration under paragraph 2, by what we shall call paragraph 4, a declaration that:
"In the performance of its duty imposed under section 43(1) of the Education (No. 2) Act 1986, a university shall not take into account any risk of public disorder, being disorder which might occur other than within the university's private precincts or otherwise affecting its private property and disorder there occasioned by members of the general public, being persons over whom the university [has] no control save and unless and to the extent that such public disorder gives rise to a risk of disorder in the university precincts or otherwise affecting its property, students or members, or the risk of disorder occasioned (wherever that might occur) by persons over whom it [does] have control."
The Education (No. 2) Act 1986, so far as material, provides:
"Freedom of speech in universities, polytechnics and colleges.43(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 any member of that body; or (b) the policy or objectives of that body.
(3) The governing body of every such establishment shall, with a view to facilitating the discharge of the duty imposed by subsection (1) above in relation to that establishment, issue and keep up to date a code of practice setting out:
(a) the procedures to be followed by members, students and employees of the establishment in connection with the organisation (i) of meetings which are to be held on premises of the establishment and which fall within any class of meeting specified in the code; and (ii) of other activities which are to take place on those premises and which fall within any class of activity so specified; and
(b) the conduct required of such persons in connection with any such meeting or activity; and dealing with such other matters as the governing body consider appropriate.
(4) Every individual and body of persons concerned in the government of any such establishment shall take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures) to secure that the requirements of the code of practice for that establishment, issued under subsection (3) above, are complied with.
(5) The establishments to which this section applies are: (a) any university; (b) any establishment which is maintained by a local education authority and for which section 1 of the (No. 2) Act of 1968 (government and conduct of colleges of education and other institutions providing further education) requires there to be an instrument of government; and (c) any establishment of further education designated by or under regulations made under section 27 of the Act of 1980 as an establishment substantially dependent for its maintenance on assistance from local education authorities or on grants under section 100(1)(b) of the Act of 1944."
The University Code of Practice made pursuant to subsection (3), in our view local in its scope, so far as material, states:
"1. Purpose of the Code of Practice... That any individual or body of persons shall be free, within the law, to hold meetings or engage in such other activities of the type set out in Appendix II on the premises of the university (including premises occupied by the Guild of Undergraduates), regardless of the beliefs, views, policies or objectives of that individual or body.This code sets out: (a) the procedures to be followed by members, students and employees of the university in connection with the organisation of any public or private meeting or activity which is to be held or take place on university premises; (b) the conduct required in connection with any such meeting or activity; and (c) steps which the university must take to secure compliance with the requirements of this Code including, where appropriate, disciplinary measures. All members, student and employees of the university shall be under a duty to assist the university in securing freedom of speech within the law in the university and promoting the principle set out above.
2. Procedures for the organisation of meetings and activities involving the use of university premises... (f) The registrar or his appointed officer will grant permission provided that he is satisfied that: (i) all reasonable steps can or will be taken to prevent any infringement of the law; and (ii) such conditions as he may reasonably require will be complied with. If the registrar or his appointed officer withholds permission, he will explain in writing to the applicant the reasons for his decision. (g) The conditions referred to in (f)(ii) above may include requirements that: (i) admission tickets be issued... (h) The registrar or his appointed officer has discretion to lay down further conditions, if appropriate, after consultation with the police and the organising body. Thus he may, for example, require the designated meeting or activity to be declared public (which would permit a police presence); he may also arrange for employees of the university or (where appropriate) of the Guild of Undergraduates to be responsible for all security arrangements connected with the meeting or activity and appoint a member of staff as 'controlling officer' for the occasion. If not satisfied that adequate arrangements can be made to maintain good order, he may refuse or withdraw permission for the meeting or activity. Such a step will normally only be taken after the police have been consulted."
Against this background we have considered the applicant's principal submission, namely, that in the performance of its duty under section 43(1) the university was not entitled to take into consideration a threat of public disorder outside the confines of the university by persons not in statu pupillari or otherwise within the control of the university.
Succinctly stated section 43(1) imposes on the university a positive duty to take steps to ensure that freedom of speech within the law is secured for members, students and employees and visiting speakers. This duty is of course qualified. The university need only take: "Such steps as are reasonably practicable to ensure that freedom of speech within the law is secured..."
In our opinion the words "reasonably practicable" qualify the steps which must be taken to ensure freedom of speech. The extent of that duty is made clear by subsections (3) and (4) which define the manner in which the duty imposed by subsection (1) is to be discharged. The governing body of the university is required to issue a code of practice to be followed by members of the university in connection with the organisation of meetings and other activities held on the premises of the university. And the governing body of the university must take such steps as are reasonably practicable to secure that the requirements of the code of practice (which apply to its members and its premises) are complied with - the emphasis is ours. Thus, we conclude, that on a true construction of section 43 the duty imposed on the university by subsection (1) is local to the members of the university and its premises. Its duty is to ensure, so far as is reasonably practicable, that those whom it may control, that is to say its members, students and employees, do not prevent the exercise of freedom of speech within the law by other members, students and employees and by visiting speakers, in places under its control. To require the university in the discharge of its duty under subsection (1) to take into consideration persons and places outside its control would be, in our view, to impose upon it an intolerable burden which Parliament cannot possibly have intended the university to bear.
It is stated in paragraph 2(h) of the code as to the registrar:
"If not satisfied that adequate arrangements can be made to maintain good order, he may refuse or withdraw permission for the meeting or activity."
"Good order" can only, in our opinion relate to good order within the precincts of the university. The code is concerned with procedures to be followed at meetings on university premises and does not envisage the university taking steps to ensure good order elsewhere. Such steps would be beyond the de facto powers of the university in any event.
Thus in discharging its duty under section 43(1) the university is not enjoined or entitled to take into account threats of "public disorder" outside the confines of the university by persons not within its control. Were it otherwise, the purpose of the section to ensure freedom of speech could be defeated since the university might feel obliged to cancel a meeting in Liverpool on the threat of public violence as far away as, for example, London which it could not possibly have any power to prevent.
So we find as a matter of construction, that the applicant is entitled to a declaration in the terms sought by paragraph 4. Mr. Sander, for the university, submitted that it would have been artificial and irresponsible for the university to ignore threatened disorder outside its precincts in Toxteth. The university, he submitted, was not entitled to divorce itself from the risk of disorder affecting property not its own and persons not its members. Whilst this submission explains the reasons of the university authorities it does not, we think, deal with the meaning of section 43 on its true construction. In our view no possible criticism can attach to the well meaning attitudes adopted finally by the university in respect of the two meetings in question. The Act was recent and section 43 is not without its difficulties. We accept that the university authorities acted with the best possible motives to prevent breaches of the peace which they had good reason to believe would occur on and off their premises in the event of the meetings taking place.
Had they confined their reasons when refusing permission for the meetings to take place to the risk of disorder on university premises and among university members, it may be that no objection could have been taken to either of their decisions. Where, however, the threat was of public disorder without the university, then, unless the threat was posed by members of the university, the matter was, in our opinion, entirely for the police.
It would be, in those circumstances, for the police to consider whether a meeting arranged at the university ought in the public interest on the ground of an apprehended breach of the peace to be forbidden or cancelled, and to consult with the university authorities and those organising the meetings to that end if needs be.
Doubtless they would, if necessary, in any event, use whatever powers they possess to ensure as well as they can that a breach of the peace did not occur. Of course, they might endeavour to insist that such a meeting did not take place. The scope of their powers, if any, in that context is not in point here and was not canvassed before us. Accordingly we do not attempt any definition of those they might be considered to possess under statute, or otherwise.
By paragraph 2 of the original application to this court the applicant sought a declaration that the following conditions imposed in relation to the meeting to be held on 20 January 1989 were ultra vires the university by being in breach of section 43 of the Act of 1986:
"2.1 Requiring that information about the meeting be treated as confidential until 9 a.m. on the day of the meeting. 2.2 In the circumstances of such restriction, requiring that attendance at the meeting only be permitted to those producing a valid student or staff card. 2.3 The decision to reserve the right to charge the association with the cost of security of such meetings."
It is submitted on behalf of the applicant that conditions 2.1 and 2.2 would hinder free speech and are therefore ultra vires the Act. It is further submitted that the relief sought under paragraph 2.3 is inconsistent with the duty imposed upon the university to ensure free speech. We reject those submissions. On the information available to the officers of the university we are satisfied that the conditions in question could be considered to be necessary in the interests of free speech and good order in the event of the meeting taking place. In our view in imposing these conditions the university was not acting ultra vires in breach of section 43 of the Act of 1986.
DISPOSITION
Declaration accordingly. No order for costs.
SOLICITORS
White & McDevitt; Alsop Wilkinson, Liverpool.
[Reported by J. R. Spencer Esq., Barrister]