The idea was to starve public services of the funding to pay staff, and then to starve their staff of the right to strike over it.

Put more accurately, the idea was to be able to set minimum service levels within key sectors, and ban staff from going on strike in some contexts to secure those minimum levels – in important stuff like emergency services, border security, passenger rail and the nuclear sector.

And higher education. Across the UK.

The Secretary of State Gillian Keegan reached for the Strikes Act last autumn to pad out her speech to Conservative Party Conference.

But perhaps clocking that agreeing what a “minimum service level” is hard enough within a university yet alone across the sector, a Department for Education (DfE) consultation ensued that had all the hallmarks of civil servants running out the clock.

Now the government has announced that its forthcoming Employment Rights Bill – to be introduced within the first 100 days of the new government – will repeal the Strikes (Minimum Service Levels) Act 2023 to “get public services back on track” and “strengthen the rights of working people”.

UCU’s Jo Grady is pleased:

The Tory plan to restrict the right of workers to strike and force them to cross their own picket lines was pernicious, unworkable and counterproductive and we are glad that the legislation will be repealed.

It was, in truth, hard to envisage universities deploying the powers in the act over a strike or marking boycott.

They’ve been a huge pain in the backside in recent years for managers, but ultimately universities have been able to claim in student contracts that industrial action represents something neither predictable nor controllable – so-called “force majeure” events outside of the control of the university that in most contracts allow a university to escape (or at least reduce) liability.

As a result – outside of the odd “goodwill payment” – there’s not been much legal risk from large chunks of the “service” not being delivered. It’s pretty much been possible to ride strikes and marking boycotts out, and to use them as proof that the sector needs more money.

But is that changing too? The inclusion of industrial action in a list including floods, pandemics and terrorist attacks has long looked incongruous – partly because in recent years industrial action in higher education has looked increasingly predictable, and partly because it was always the case that collective bargaining is a choice.

In May 2023 the Competition and Markets Authority (CMA) revised its guidance to universities on the application of the law to reflect some of its wider guidance on unfair terms – making clear that industrial action “with a university’s own employees” would usually be considered to be within a university’s control.

Almost all universities have pretended not to notice, or have quietly resolved a “bring it on” approach to protect its position. But last week the Office for Students (OfS) finally got around to telling us about some of its referrals to National Trading Standards (NTS) – one of which was asking the University of Manchester to rewrite its terms:

The wording which limited liability for industrial action was narrowed to apply only to industrial action by non-university staff.

Astonishingly, in one of the other two case studies that OfS quoted at Icon College, it appears that nobody in Westward House or National Trading Standards noticed that it seems to have the same problem:

We shall not be liable to you in any manner whatsoever for any failure or delay, or for the consequences of any failure or delay, in performance of our obligations under the Contract, if such failure or delay is due to any event beyond our reasonable control (including, but not limited to strikes, lockouts or other industrial action…

God forbid that OfS would publish case studies where the issues it raises are consistently addressed. But I digress.

Universities can now amend their terms, or risk that thing that always happens – OfS gives the sector ages and ages to do something reasonable, eventually regulates on it, and then the sector says it’s being draconian and disregarding autonomy.

The tactically smart thing to do would be to act before that, but I suspect much of the sector will walk lemming-like into yet another confrontation.

Will the change result in a swathe of students making expensive claims? Probably not. But it will tip the balance a bit – and may well influence the outcome of that UCL iteration of the Student Group Claim we’re due to hear more about in the new year, not least because its contract says:

UCL will not be liable to you for loss and/or damage arising from circumstances or events that are outside UCL’s reasonable control. Such circumstances or events include, without limiting what is intended, strikes and other industrial action (of UCL staff or staff of third parties)…

Oh and last time I looked, both Scotland and Wales’ universities universally included industrial action in their student contracts too.

In the latter, Medr may or may not have a run at a similar “pay due regard to CMA advice”. In the former, before Scottish correspondents start flooding the comments with “yeah but they don’t pay fees Jim so what refund would they get”, it’s worth remembering that a hell of a lot of students do pay fees in Scotland – and even without them, one of the other OfS case studies reminded us that universities shouldn’t be limiting potential compensation for breach of contract to the fees paid.

Of course if students could enforce their rights with ease, universities would need to fold on pay and conditions claims faster. And if that was the case, we would almost certainly have a resolution to the sector’s funding woes, one way or the other – because it would bring it all to a head faster.

Without that, the implosions of internal cuts will just keep coming. So whether it’s optional modules (and the staff teaching them) disappearing, library hours being cut or the inter-campus bus being cancelled, students will keep (via the loans scheme) paying more while getting less.

On repeal, Business Secretary Jonathan Reynolds says:

By removing minimum service levels, we will reset industrial relations, so they are based on good faith negotiation and bargaining, ending the chaos and restoring trust in public services. This is about restoring politics as public service ensuring government acts to fix problems not cause them.

UCEA and UUK will be hoping that the “good faith negotiation and bargaining” extends to the sector’s funding settlements discussions with government too.