8 March 2012 Last updated at 11:45 ET

Article written by Mark D'Arcy Parliamentary correspondent

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First aid

 

"Where were the Tories?" grumbled a Lib Dem peer, as he contemplated the two ferocious kickings administered to the government by peers this week, on the Legal Aid, Sentencing and Punishment of Offenders Bill.

An alliance of Labour and crossbench peers, plus a smattering of Lib Dem and Tory rebels, has inflicted two sets of stinging defeats; on Monday and then on Wednesday on the government. But looking at the figures it seems it was mostly a lowish turnout of Tories wot won it.

A combination of late night voting fatigue, after a couple of very heavy weeks of detailed legislating, plus some genuine disenchantment with some of the bill; plus, I suspect, a certain sly relish at the sight of the Lib Dems twisting in the wind, supporting the legal aid cuts, may account for the low turnout. But the result is a problem for ministers.

Last night, a rather tetchy Lord McNally, who multi-tasks as a justice minister and as deputy leader of the Lords, delivered a lecture on financial responsibility to peers, who then proceeded to defeat the government on three key issues and run them close on a fourth.

The first defeat was on a group of amendments which stopped legal aid being removed from appeals against decisions on social security benefits at a standard tribunal - the government lost by 39 votes.

The second was on continuing legal advice (not actual representation) for appeals to "upper tribunals" on points of law - the government lost by 28 votes.

Ken Clarke has criticised peers over the Legal Aid Bill

And the third - and narrowest - defeat was on keeping legal aid funding for medical reports in clinical negligence cases - an amendment proposed by the former law lord, Lord Lloyd, a crossbench peer. The government was defeated by six votes. A government concession covering cases of serious brain damage to babies in birth was not quite enough to defuse opposition and a group of amendments.

A wider amendment from another crossbencher, Lady Grey Thompson to keep all clinical negligence cases "in scope" was defeated by seven votes.

The government will doubtless seek to reverse the defeats by inviting the Commons to over-rule the Lords. Justice Secretary Ken Clarke has released a pungent comment about peers behaving as if they're in the Greek parliament. Ouch! (Labour sources argue that much more could have been saved by trimming budgets for criminal - as opposed to civil - legal aid).

But what is Mr Clarke's next move? On the Welfare Reform Act, the government forced through most of what it wanted by invoking the Commons' ancient right of financial privilege. Since medieval times, the Commons has claimed control over money matters - and once beheaded a king to make its point - and there is a stock formula by which MPs can reject Lords amendments on the basis that they trespass on that financial privilege.

But can they do so on this bill? On Welfare Reform, the sums involved ran into billions; on this bill we're talking tens of millions. In terms of public finance, that's small change - and if financial privilege is to be invoked for sums on that scale, practically any Lords amendment could be dismissed in that way, at which point the Upper House might wonder what the point of all their debates is.

Labour sources also claim that the changes they have made do not mandate extra spending in the way that some of the Lords amendments on welfare did so it may not be correct to apply financial privilege to them. That's a matter for the clerks of the Commons who will draw on centuries of precedent to rule on that issue.

There's also the Lib Dem Spring Conference this weekend. Not only are the Lib Dems debating the Health Bill (on Sunday, just before Nick Clegg's speech, natch) they're also debating legal aid. And that could provide another uncomfortable moment for Lord McNally.

The upshot of all this is that the government may end up having to make some concessions to its noble critics, if the big bazooka of financial privilege is not available, or if ministers decide it would only inflame relations with their lordships.

Or if the Lib Dem leadership wants to avoid fighting its own party on too many fronts.