The Daily Telegraph’s Gordon Rayner included a real howler in his article about the DUP’s rebellion in the Commons last week:
“Because the motions have been tabled by the Opposition they are not legally binding…”
Rayner was referring to the fact that the motions were part of an Opposition Day, which meant Jeremy Corbyn got to set the agenda for the debate. While it’s true that Corbyn’s motions weren’t legally binding, it’s not because he tabled them. Most motions are like greeting cards—they express sentiment without actually doing anything.
Corbyn’s pay cap motion “call[ed] on the Government to end the public sector pay cap in the NHS and give NHS workers a fair pay rise.” Ultimately, this is simply advice, and ministers are free to ignore it. The tuition-fees motion, on the other hand, looked like something that would bind the Government since it purported to revoke the Higher Education (Higher Amount) (England) Regulations 2016 and the Higher Education (Basic Amount) (England) Regulations 2016.
Statutory instruments made under the Higher Education Act 2004 are indeed subject to ‘negative procedure,’ which means MPs can strike them down. But section 5 of the Statutory Instruments Act 1946 states that these votes must take place within 40 days of the instrument being laid before Parliament, and the instruments Corbyn wants to revoke were both laid before Parliament in December of last year. That’s not all: a negative procedure motion must take the form of an address to the Queen asking her to annul the instrument(s) in question, but Corbyn’s motion simply declared that the instruments were revoked. Since it didn’t comply with the provisions of the Statutory Instruments Act, the tuition-fee motion is also nothing more than a statement of opinion. Labour has threatened to sue the Government if they don’t revoke the statutory instruments increasing tuition fees, but it’s hard to see how they could possibly prevail in court, so they’d be better off saving their money.
While these motions aren’t legally binding, they still represent a headache for the Government. Ministers allowed them to pass on a voice vote in order to avoid a potentially embarrassing rebellion by the DUP. This stratagem may have allowed them to save face in the short-term, but it also highlights the inherent weakness of the Government’s position and lends credence to the notion that Theresa May is in office but not in power. And in the long run, that is far more dangerous than a defeat on policy.