Export Control (Amendment) (No. 3) Order 2010

Lord Young of Norwood Green Excerpts

Monday 20th December 2010 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)]

My Lords, the proposal before us is for an order under Section 6 of the Export Control Act 2002. The effect of this order would be to control the export of the drug sodium thiopental to the United States of America. It prohibits the export of sodium thiopental to the United States unless the exporter has first obtained a licence from my right honourable friend, the Secretary of State for Business, Innovation and Skills.

Sodium thiopental is an anaesthetic widely used in the United Kingdom and Europe, but it is also used in several states in the United States of America to anaesthetise prisoners prior to execution. For several months there has been a shortage of sodium thiopental in the United States, which has caused at least some individual states to seek supplies of the medicine elsewhere. There is evidence that the state of Arizona obtained the sodium thiopental used in a recent execution from the United Kingdom. On 28 October 2010, Leigh Day & Co, solicitors acting for Mr Edmund Zagorski, a prisoner on death row in Tennessee, wrote to my right honourable friend in another place inviting him to place controls on the export of sodium thiopental. While affirming the United Kingdom’s opposition to the death penalty in all circumstances, my right honourable friend declined to impose export controls on the drug. His primary concern was that he should not take action which might cause delays in the export of a medicine which some patients may need.

The High Court granted permission to Leigh Day & Co to conduct a judicial review of my right honourable friend’s decision. In light of this, he reaffirmed on 12 November his decision not to impose a control. He reiterated that there remained a possibility of significant legitimate trade in this important medicine and that it was unlikely that an order to control its export would be effective in preventing any execution. The first hearing of the case took place on Wednesday 17 November. On 22 November, the court indicated that it would dismiss the claimants’ arguments that my right honourable friend was under a duty by the European Union Charter of Fundamental Rights or the common law to make an export control order. The court refused to grant interim relief, which would have required him to make a control order. The court adjourned the claimants’ public law challenge, which was due to be heard on Monday 29 November. In the mean time, however, all parties sought to clarify the extent of any possible lawful trade in sodium thiopental. Having consulted United States lawyers, they all agreed that, under applicable federal law, it is not currently lawful to import sodium thiopental into the United States for medical purposes. Moreover, in the course of the legal action, it was established that sodium thiopental is at present hardly ever used for legitimate medical purposes in the United States of America—although, as I have indicated, it is used widely as an anaesthetic around the world. These two discoveries mean that an order controlling the export of sodium thiopental to the United States of America should not, in fact, have any adverse impact on patients in the United States of America or on UK exporters.

The order before us reflects the particular circumstances of the United States of America and applies only to that country. The United States of America is unique in that sodium thiopental is not currently used there in medicine but is used for capital punishment. An order which controlled the export of sodium thiopental more widely would have affected legitimate medical trade in a way that this order would not. On 29 November, my right honourable friend decided that these new developments significantly strengthened the arguments in favour of a control order. Such an order would serve to underline the United Kingdom’s moral opposition to the death penalty in all circumstances without affecting legitimate trade. My right honourable friend therefore announced that he would make an order under Section 6 of the Export Control Act 2002, controlling the export of sodium thiopental from the United Kingdom to the United States. The order came into force on Tuesday 30 November. From that date, any person seeking to export sodium thiopental from the United Kingdom to the United States of America requires a licence issued by the Export Control Organisation, which will refuse a licence if the stated end use is execution, or if it considers there to be an unacceptable risk that the drug will be diverted for use in execution. In the latter case, it would assess the risks case by case in the light of all relevant factors. A breach of the order is a criminal offence.

Noble Lords may wish to note that the control order covers both the direct and indirect export of sodium thiopental from the United Kingdom to the United States of America. The indirect control applies when the destination is not the US, but the exporter knows that the goods will be re-exported and that the ultimate destination is indeed the United States.

The order was laid before Parliament pursuant to the procedure in Section 13 of the 2002 Act and, unless approved by a resolution of each House within 40 days, it will cease to have effect. Orders made under Section 6 last for a maximum of 12 months. On the basis of the facts that I have outlined, I conclude by commending this order to the Committee. The operation and effect of the order will be kept under review in the light of factual developments.

[Lord Young of Norwood Green]

My Lords, I do not think that we will detain noble Lords for long on this order. I welcome the Government’s full explanation and clarification that the order will require a Secretary of State licence, whether it is direct or indirect control, which is important. I also welcome the assurance that there will be a monitoring and review process. I cannot help but ask one question, as a result of the O-level chemistry that I never got. Like the Minister and the Explanatory Memorandum, I always refer to the drug as sodium thiopental, but I notice that the order reverses that and refers to thiopental sodium. From mere curiosity, I am wondering why that is the case. I hope that those behind the Minister who know the answer to everything will tell us why the words have been reversed. That aside, I welcome the Government’s decision.

[Lord Razzall]

My Lords, I, too, support this somewhat bizarre order, which I am sure noble Lords from all sides will welcome. I have three questions resulting from the Explanatory Memorandum. As someone who spent an early part of my life working as a lawyer campaigning against capital punishment in the United States, I would be interested to know which two states have used this drug to effect execution rather than simply to anaesthetise the condemned person before execution.

Secondly, it is obviously clear from the action taken by the lawyer for one of the people on death row that he or she believes that if this supply can be stopped there would be an advantage, presumably, to either postponing or stopping the execution of his or her client. If export of this drug from the United Kingdom does not take place, are we aware as to from where the relevant execution chambers will obtain the drug? Will this have a major effect on executions in the United States or is there a simple alternative source of supply?

Thirdly, the fact that this order is being brought indicates that presumably there has been export of sodium thiopental in the past from the United Kingdom to the United States. Do we have any idea what the volume of that has been? Will this have a direct effect on drug companies which have been exporting it or is this simply a theoretical order that will have no practical effect? I obviously overwhelmingly support the order.