Some subjects cry out for sexing up. The question of statutory instruments is one. The very phrase is a turn-off, and the issue is not what a government is actually doing, only the way it sets about it. But to grasp the potential importance of the way laws are made, simply recall that Hitler started out with an enabling bill, which allowed him to dictate policies without troubling the Reichstag.

Lord Strathclyde is reviewing the House of Lords veto on statutory instruments. Photograph: Dan Kitwood/Getty Images

Nothing like that is going on in Britain, but there has been a creep, over many decades, for ever more rules to be made by ministerial order, rather than by primary legislation. Some of this reflects the technical demands on the modern state: it wouldn’t be practical to specify every last detail of, say, pensions regulation or the national curriculum in an act of parliament. On the other hand, every minister will have a faith in their own benignity, which it is as well to regard with suspicion. They are bound to value the flexibility to rewrite rules at their convenience, but any parliamentarian worth their salt should want serious checks on their diktats. As it is, some statutory instruments glide through the Commons after a single vote; others are made effective with no vote at all. Such scrutiny as there is depends upon the Lords, which keeps a sharp eye on what powers are being grabbed, and then – through a dedicated committee – examines significant instances on which these powers are used.

In this context, Tom Strathclyde’s quickie, pre-Christmas review of the upper chamber’s role in relation to secondary legislation assumes considerable significance. The Conservative peer was set off on this task after David Cameron’s ermine-trimmed defeat on tax credits. The chancellor has since abandoned his cuts, conceding that they were neither necessary nor desirable, but the embarrassment convinced No 10 that Something Must Be Done. It is hard to feel too much sympathy for Mr Cameron, since he blew his best chance to reform the House of Lords under the coalition, but in one sense his resentment is understandable. He recently won an election, and yet his Tory troops are so heavily outgunned in the unelected Lords that he has been losing two out of three divisions. The Lords has not enjoyed a final veto on primary legislation in a century, and if statutory instruments had been common in 1911, the Parliament Act would surely also have scotched the secondary legislation veto.

The backstop of a veto gives bite to the committees that do the scrutiny

But if the veto is something of an anomaly, it is also one of the only checks on ministers writing regulations on a whim. The backstop of a veto gives bite to the committees that do the scrutiny. If the government knew it could guarantee getting its own way in the end, it could ride roughshod over revisions, and sneak even more policy through in secondary legislation. Widely drawn powers already make that temptation strong – which is, of course, why those tax credits cuts were not put into a bill and cranked through all the parliamentary stages that go with that.

It is important, therefore, that the Lords at least hangs on to a power to delay. And their lordships are within their rights to dig in against any diminution of their powers at all, until the PM accepts some fetters on his ability to pick peers. The upper house is bursting at the seams with peers picked on such an arbitrary basis that there are no rules even about the party mix. If the composition question and the veto power were both put on the table at once, then there just might be the makings of a sensible deal to be done.