My Lords, in Committee, I argued that we are too keen on debating affirmative orders; I am not convinced it is necessary. With the negative procedure, if we have adverse briefing from industry and lobby groups, we can flag a negative order up for debate and debate it just as thoroughly as an affirmative order. I welcome the government amendment to provide for the affirmative procedure for the first such order as a sensible compromise. There is a danger with going for the affirmative procedure for subsequent orders. Suppose a small problem with secondary legislation is detected but you need an affirmative order to correct it. Officials’ advice will be that it is not worth going for an affirmative order just to correct this small problem, whereas if we were using the negative procedure, it could be corrected and there would be no controversy with outside bodies. I suggest, therefore, that we are cautious about the use of affirmative orders.
As for the noble Baroness’s sunset clause, noble Lords will recall that I have been very active on Section 40 of the Crime and Courts Act, where we have a sunset problem because the Government chose not to commence a piece of legislation, so I have sympathy for sunset clauses. I think there is a slight defect in the noble Baroness’s amendment and in Committee I suggested considering my alternative amendment. The defect is that the Secretary of State can go for an affirmative order to extend the period but that just extends it once for 15 years, whereas my amendment would have given only a small extension each time. I will share my amendment with the noble Baroness.
I am also in discussion with the Cabinet Office and had a meeting with Cabinet Office officials, attended by my noble friend Lord Young of Cookham, to explore this very issue, because I am at one with the noble Baroness that we should not have legislation hanging around that has not been commenced. Perhaps the noble Baroness will agree with the Minister on the amendment.