Ruling on the regulations

Government defeats in the House of Lords are now becoming pretty routine, (seven and counting in this Parliamentary year) but last night's kicking, which saw the defeat of a set of regulations on civil legal aid, should worry ministers.

It was only the third such defeat since 1968, apparently, and shows that the increasingly obstreperous Upper House has found a new way of making ministerial life difficult.

Look at the backstory. Back in April, as Parliament was completing its consideration of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO), the end of the session and the possible loss of the bill was looming, the Lords and Commons were still at odds over whether legal aid should continue to be paid for legal advice for preliminary reviews and hearings to challenge decisions about benefit entitlements.

The government was in some danger of losing, because rebel Lib Dems were siding with Labour in both Houses. Defeat was forestalled when the then Lord Chancellor, Ken Clarke, appeared to concede that appeals on points of law should attract legal aid.

But when the regulations which were supposed to cement that concession appeared, Labour peers and others thought they fell rather short of what had been promised. Hence the mobilisation of the alliance which defeated them last night. (The defeat was by 10 votes and, interestingly, 23 Lib Dems appear to have abstained…)

Parliament will have to deal with an avalanche of regulations under several bills passed in recent months - the Health and Social Care Act, the Welfare Reform Act and, of course, LASPO, will all give rise to near orgies of regulation-making.

And a little further down the road is the Financial Services Bill which, in its present form, gives ministers sweeping powers to make regulations on the operations of banks and other financial institutions. They will get to specify, for example, how the much-vaunted "ring fence" between investment backing and utility banking will work - a huge issue for the City and the wider public.

And further still over the horizon is the Care and Support Bill, which will produce oodles more regulation. All these will put a huge strain on Westminster's arrangements for processing so-called Secondary Legislation. And if the Opposition - rightly or wrongly - comes to believe that it cannot rely on promises from ministers about what regulations will do, the strain will be even greater.

Perhaps the trust issues in this particular case will turn out to be a one-off, who knows? But there is still a problem for the government. It's a safe bet that we won't have to wait for another 44 years to see another regulation overturned in the Lords.

Incidentally, the invaluable Constitution Unit has provided its usual voting breakdown for a government defeat in the Lords.

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