My Lords, if the noble and learned Lord, Lord Judge, thought that his thinking was inadequate compared to that of Lord Steyn, it is the only inadequate thing that he just said. I rise briefly to encourage him in his arguments and to encourage the Government to understand that it is not only on the Cross Benches and on the Liberal Democrat Benches that the concerns that he has expressed can be found.
I want to look at Clause 2 through the lens of Amendment 3A, because it gives both United Kingdom Ministers and devolved Administration Ministers the power to make regulations that make provision among other things to modify primary legislation and impose penalties, as the noble and learned Lord, Lord Judge, pointed out.
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There is another problem that concerns me, although perhaps I am misreading the legislation. According to Clause 2(5)(b), the regulations are permitted to make provision,
“conferring functions on the Secretary of State or any other person, including conferring a discretion but not including a power to make subordinate legislation”.
As I said, I might completely misunderstand the legislation, but it has always struck me that regulations are brought into force through secondary or subordinate legislation, so there seems to be a confusion. It might be a confusion only in my own mind, but I invite the Minister to untangle it or tell me that I have got it wrong.
Returning to the remarks of the noble and learned Lord, I could not agree more with him that it is not appropriate for Ministers to create or extend criminal offences. It might in some circumstances be appropriate for them to regulate in relation to the imposition of fees. I can see that there is an argument for some amendments to primary legislation to be made by regulation: for example, if they simply remove the letters “EU” and replace them with the words “United Kingdom”. However, we need to be cautious before permitting a Minister to amend primary legislation without knowing more about what is intended. As regards the creation of new public bodies, again it very much depends on what is implied by that power.
It is often said that repetition never made a good argument better. The noble and learned Lord, Lord Judge, has made a series of very powerful arguments which I hope the Government will have listened to, but I also hope that they will understand that his concerns are not confined only to those who have supported his amendment.