DfE launches a consultation about a consultation on “minimum services” in universities

The proposals are to ensure that in the event of any future strike action, students can continue to receive education and “do not miss out on any vital learning”.

According to DfE, the legislation brings us in line with countries like France, Italy, Spain “where public services reliably continue in times of industrial action”.

The press release notes that strike action over the past year came at a time when providers were doing their best to recover from the impact of Covid on students’ education – and so setting regulations for minimum service levels will, it says, help safeguard students’ time in education from further disruption caused by industrial action.

If they’re in a school or FE college, that is.

Not big schools after all

Where there are detailed proposals there on priority attendance for vulnerable children and young people, exam groups, children of critical workers and primary school pupils, as well as the use of rotas for strikes lasting five days or more, for higher education there’s instead a surreal evidence-gathering exercise on the impact of strike action to determine if a minimum service level could mitigate the impact of any future strike action.

A consultation on whether to hold another consultation, in other words.

Picture the scene. The minister is meeting with sector representatives to discuss the contents of messages from MPs, the postbag, the inbox and the front pages of the Mail, the Times and the Telegraph.

Said minister complains that strikes and last year’s marking and assessment boycott need sorting out. Sector representatives posit that they can’t make staff work if the ballot reaches the threshold – and the problem won’t go away unless and until tuition fees go up. Everyone leaves annoyed, and the minister has to impotently tweet that he’s written “another letter”.

So in some ways it was quite a touche moment when Gillian Keegan announced back at Conservative party conference that she was intending to apply the Act – legislation designed to keep the ambulances running, the passport queue running and a skeleton service on the trains – to higher education. “Now there will be no excuse”, etc.

Unreasonable care and skill

It did raise some interesting questions. Most of the public or quasi-public services that have had regulations laid so far are ones where there’s a social contract but no individual contract. So where students are paying fees, in theory if the “minimum” hasn’t been delivered, we would surely have seen endless expensive refunds doled out. But save for some “goodwill payments” in the hardest hit marking boycott providers, that hasn’t happened.

Even on the trains there’s no expectation that passengers will pay for trains that don’t run, a refunds regime for delays and a scheme that reduces the cost of a season ticket if there are problems. There’s nada in HE.

The question over whether individual providers should be allowed to place industrial action by their own staff into “force majeure” clauses in student contracts remains unresolved. Back in June, the Competition and Markets Authority said that wasn’t allowed – its interpretation is that strikes (unlike floods, pandemics or other “acts of god”) are either within the control of providers, or are predictable, or both – and so providers can’t limit their liability in the event of one.

Meanwhile almost every higher education provider in Great Britain (the coverage of the MSA) maintains such a clause – partly because the case law on industrial action is not settled on whether national action outside the control of an individual institution to resolve is fair to exclude liability from, partly because guidance is just that until CMA (or others in the case of the student group claim, focussed first on UCL) take it to court, and partly because of process inertia.

It’s an unhelpful standoff from a student rights point of view – like divorced parents giving two messages out about whether their kids are allowed out after 11pm – that would have been made more complicated by the application of the MSA.

Surely everything in the contract is a minimum? What if the MSA regs had included stuff that wasn’t in the contract? What if it didn’t include stuff that was? And so on.

Add in the sheer complexity and diversity of the sector (and Scotland and Wales) and you can see the problem. Add to that the failure to reach the turnout threshold in UCU’s recent ballot and you might also see why complexity+reduced urgency has resulted in today’s consultation on a consultation.

Going further

Meanwhile in colleges, the proposals include:

• College leaders will be able to issue a notice specifying “essential staff” for minimal service, including leadership(!), teachers, teaching assistants, safeguarding leads, administrative, and other non-teaching staff.
• Specification of priority student groups, including vulnerable young people, students with upcoming exams or assessments and children of critical workers.
• For non-prioritised students, colleges will be expected to make every effort to provide remote teaching on strike days.
• Rotas to ensure all students receive some in-person education during strikes lasting five or more days.

Weirdly, the proposals don’t list as a priority group “students in HE who have a paid for individual contract for educational services”.

Must try harder?

In terms of what DfE says it knows about HE, we have lectures being cancelled “with no attempt to make up this lost teaching for students”, particular concerns about how the delivery of courses with minimum contact hours “has been jeopardised by strike action”, and the impact of strike action by non-academic staff on “research-driven activity, as well as science and engineering subjects.”

If that’s all true, it does raise the question of how or why students haven’t been availing themselves of their contractual rights – something that in England the Office for Students (OfS) has been dragging its feet on since its inception. The “no attempt to make up for” conclusion also raises wider questions about OfS regulation and enforcement – an issue oddly missing from DfE’s “we have full confidence” response to the Lords’ Industry and Regulators Committee report on OfS.

The regulatory regime also has questions to answer in the rest of Great Britain if the allegation is (and everyone privately admits that it is) often true.

To buy – or perhaps fill – time, the consultation on the consultation asks a series of facile questions that you can’t imagine will give anything like clarity. As well as asking which types of staff took action, one question asks what the impact was in “your” university – no, minimal, moderate or high impact. Student newspapers will have a field day FOIing the responses to that.

There’s also questions on the nature of any impact, whether industrial action impacted suppliers, subcontractors or local businesses, whether the action impacted some students more than others, and whether strike action led to recruitment issues for local employers, particularly the recruitment of critical workers.

Probably my favourite question is back to that “make up for it” question – were there any attempts by striking staff to make up learning lost because of strike action? If providers say yes, at some stage ministers will be comparing the letters from MPs’ nephews with the assertion – and if the answer’s no, that’s a reportable event right there. The sector’s legal firms will doubtless find a form of words – and those words are likely to contradict those of plenty of students and staff.

It’ll be like the two press releases we always get on day one of a strike – when UCEA argues that the impact is imperceptible to the human eye, while UCU argues that its picket lines can be seen from space.

They’re all at it

Conveniently, the Commons Education Committee is also running a consultation on exactly the same issue with pretty much the same terms of reference – so not only will DfE get a confusing picture, it’ll have MPs making recommendations on their version of the confusion too.

There’s an interesting question for what we’d have to assume will be an incoming Labour government here too. Back in October UCU called the proposals a “spiteful attack on workers everywhere” from a party “that has run out of options and will soon be run out of office”.

That’s as maybe, and there’s similar views from the other education unions floating about today – but it’s hard to believe that a triangulating centrist in No.10 would step a trap that would allow a Tory opposition to accuse Starmer of choosing union barons over kids and so on. If the HE bit of this remains unresolved by the time of the election, this will very much be unfinished business – especially if UCU has a run at strike action again after Easter (and a year of getting nowhere on pay).

The final question in the consultation asks:

Other than an MSL, what other options could the government consider to mitigate the impact of strike action in higher education? Please provide details.

Oh I don’t know, fund it properly? Deliver on your 2017 promise to get OfS to consult on the system-wide introduction of student contracts that set out what students can expect from their providers in terms of resource commitments, contact time, assessments, support and other important aspects of their educational experience? Or just fiddle about.