The CMA publishes guidance on higher education collaborations

The guidance sets out what is permissible as things stand – collating and signposting existing guidance and clarifying the general principles that guide the CMA’s views of whether any given HE collaboration poses a risk to consumers or the general public.

Generally speaking, the message is, it’s probably fine to jointly procure services, to share infrastructure, and even to work in partnership on course provision, assuming doing so isn’t done with the intent of, or doesn’t inadvertently end up, disadvantaging consumers.

For things to change they must stay the same

It’s not that the law has changed or the CMA has updated its views of what constitutes legitimate and reasonable collaboration. I can’t help speculating whether there may have been some head scratching among officials as to why such sector-specific guidance is seen as desirable. Yet in the past few years, as the HE sector has started to explore the potential for the kind of structural collaboration at scale that could help to deliver more efficient HE operations, the belief that even discussing possibilities could raise a regulatory flag has caused some to shy away from exploring the possibilities.

It is not surprising, given the focus on competition in HE from policymakers in the last decade, that some have internalised the message that collaboration is discouraged – even in what remains a highly collaborative sector. So this guidance from the CMA stands as much more of a cultural intervention than a regulatory one, signalling an understanding that HE institutions may be pursuing collaboration at a different scale than hitherto, and removing any lingering perception that this shift could be venturing into risky legal territory.

It has always been possible to commission specialist advice and put legal cover in place to navigate competition law, but to do so project by project or institution by institution is itself deeply inefficient. So the sector is likely to find this intervention helpful, if only for giving reassurance to anxious boards of governors that their executive teams are operating well within the regulatory Overton window of acceptable behaviours.

It’s still a market

The flipside is, of course, that competition law still applies. It remains illegal to collude with another business entity with the express purpose of reducing competition. Any collaboration must give due regard to competition law and CMA guidance – particularly its guidance on horizontal agreements. Any institutions considering merger will likely want to notify the CMA about the merger and at a minimum explain why it doesn’t meet the criteria for investigation under competition law. For large and complex collaborations specialist legal advice is likely to be required.

None of this changes the funding landscape, the strategic bandwidth or risk appetite within individual institutions, or the geographies that shape collaborative opportunities. Major strategic collaboration remains a Big Job for any HE institution, and not something that anyone would take lightly. But with this relatively modest intervention from the CMA it’s likely we’ll see a bit more exploratory discussion taking place, and a bit more flesh on some hypothetical bones in the months and years ahead.