My Lords, Amendments 19, 20 and 21 are probing amendments tabled by my noble and learned friend Lord Falconer of Thoroton. I welcome the amendments, as we have a chance to debate these important issues again.
As a general rule, I do not like Governments taking Henry VIII powers. It is much better that primary legislation is made or changed, and that both Houses debate and decide on the issue, rather than procedures such as these, which are not a proper substitute, whether they use the affirmative or super-affirmative procedure.
That brings me on to Amendment 19, moved by my noble and learned friend. This is a particularly important amendment as, without it, criminal offences could be extended or amended, and the penalties for offences could be changed. That is unacceptable. I hope all noble Lords will agree that it is a matter for Parliament to decide, and that there is no justification for doing otherwise. I would therefore like to hear from the noble and learned Lord, Lord Keen of Elie, the justification for not accepting the intent of this amendment, if that is the Government’s position this afternoon.
The noble Lord, Lord Thomas of Gresford, made the point that this is no way to make new law and new offences. I very much agree with that. There should be no cases of new offences having penalties agreed without the consent of Parliament, where that would normally be the case. But these powers could be used to circumvent that.
My noble friend Lady Kennedy of Cradley made the point that we have seen very few of these types of agreements in the last 60 years, and that the powers and procedures proposed here do not seem justified in that case. My noble friend also made reference to reports that statutory instruments in this area risk being struck down by the courts. It would be good if the noble and learned Lord, Lord Keen of Elie, could address that point when he responds to this debate shortly.