Ben-Dor & Ors, R (on the application of) v University of Southampton

A university may postpone or withdraw permission for an event where concrete, evidence-based risk assessments show substantial risks to safety or public order which cannot reasonably be mitigated in the time available. Articles 10 and 11 rights are fundamental but qualified. The court must assess proportionality itself, while giving appropriate weight to the university’s institutional competence in predicting and managing risks on its premises.

A university may take account of external circumstances where they are relevant to disorder or violence on university premises. It need not delegate its own responsibilities to the police. Security costs may be charged to event organisers where funds are available, subject to a safeguard where lack of funds would inhibit freedom of speech.

Two university professors sought judicial review of decisions concerning a proposed conference on international law and Israel. The first claim challenged the withdrawal of permission to hold the conference on the university campus in April 2015 because of anticipated protest, disorder and insufficient time to put safety measures in place.

The second claim challenged proposals for a later conference requiring the organisers to meet internal security costs. By the hearing, that challenge concerned the lawfulness of charging those costs and the continuing viability of the proposed arrangements. The central issues were whether the decisions breached section 43 of the Education (No 2) Act 1986 or Articles 10 and 11 of the Convention, and whether they were proportionate and lawful.

1. JR 1 dismissed. The withdrawal of permission was based on the university’s concern about substantial risks of public disorder and safety, and on the conclusion that insufficient time remained to put adequate mitigation in place. The court accepted the decision-makers’ evidence and found no ulterior motive.
2. The Convention rights were important but qualified. Proportionality was assessed by asking whether the objective was sufficiently important, whether the measure was rationally connected to it, whether a less intrusive measure could have been used, and whether a fair balance had been struck. The first two stages were plainly satisfied.
3. The court gave considerable weight to the university’s assessment of predictive and difficult-to-quantify risks. It was not appropriate to conduct a line-by-line re-evaluation of the risk material. The risk assessments were based on information from Hampshire Constabulary and other evidence, rather than speculation. The university had personal duties to protect staff, students, delegates, protesters and property, and could not simply expect the police to secure the event.
4. Alekseyev v Russia was distinguishable. It concerned an effective and repeated ban on demonstrations, whereas the decision here postponed the event and left open a future conference if adequate safeguards could be arranged. R v University of Liverpool ex parte Caesar-Gordon did not prevent the university from considering terrorism and national alert levels where those matters were relevant to disorder or violence on its premises.
5. The circumstances were exceptional within the university’s Code of Practice. Withdrawal of permission was therefore proportionate, lawful and procedurally regular.
6. JR 2 permission refused. The proposed security-cost requirement was not inherently an interference with freedom of expression where funds were available. The Code of Practice protected the right where lack of funds clearly inhibited speech. The challenge was premature because no final decision had been made, and in any event was unarguable.

First-instance judicial review proceedings. Permission for JR 1 had initially been refused, but permission was later granted by Arden LJ on 27 October 2015. The substantive claim was then determined by the Administrative Court. JR 2 was considered for permission only and permission was refused.