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The coalition will need to take the change to parliament either in primary legislation or using a statutory instrument, which can still go to a vote.
Former minister Ben Bradshaw, Labour MP for Exeter, said that ministers had shown "contempt for Parliament" by using a statutory instrument to pass the regulations.
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The government wanted to use a statutory instrument, an order which does not require a parliamentary vote, to reduce lawyers' fees in the event of a successful libel prosection from 100%to10%0%.
Ministers were last month accused of a "legislative sleight of hand" after they used a statutory instrument to scrap maintenance grants, which had helped half a million of the poorest students pay for university life.
Other experts, such as Dr Hannah White of the Institute for Government, believe that the Lords were within their rights because the Government tried to use a statutory instrument instead of passing an Act of Parliament.
The government will be able to avoid introducing lengthy legislation, which would be subject to months of intense scrutiny in the media and in both Houses of Parliament, and instead usher in significant changes to existing legislation by using a much quicker parliamentary procedure - a statutory instrument - to reform the ban.
"We'll see what differences there are [vs existing UK data retention legislation] when the Secretary of State uses her powers to bring in secondary legislation — so a statutory instrument or something — or gives direction to communication providers to retain data," he added.
By writing to Harman, the business secretary is seeking to get the change made through a "statutory instrument" – in effect, an update to the existing bill that the government can push through using its parliamentary majority.
A | The Lords defeat the government often enough, but blocking a statutory instrument is very rare.
The Home Office has now laid a statutory instrument before parliament that will bring the ban into force in three weeks.
A | The Lords were presented with what is called a Statutory Instrument, which is much quicker to implement than an Act of Parliament.
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