The
Committee consisted of the following
Members:
Chair:
†Mr
Charles Walker
†
Birtwistle,
Gordon (Burnley)
(LD)
†
Blackwood,
Nicola (Oxford West and Abingdon)
(Con)
†
Bruce,
Fiona (Congleton)
(Con)
†
Burt,
Lorely (Solihull)
(LD)
†
Campbell,
Mr Alan (Tynemouth)
(Lab)
†
Chapman,
Mrs Jenny (Darlington)
(Lab)
Cooper,
Rosie (West Lancashire)
(Lab)
†
Jackson,
Glenda (Hampstead and Kilburn)
(Lab)
†
Jones,
Andrew (Harrogate and Knaresborough)
(Con)
†
Lucas,
Ian (Wrexham) (Lab)
†
McGovern,
Alison (Wirral South)
(Lab)
†
Newmark,
Mr Brooks (Lord Commissioner of Her Majesty's
Treasury)
†
Prisk,
Mr Mark (Minister of State, Department for Business, Innovation and
Skills)
†
Raab,
Mr Dominic (Esher and Walton)
(Con)
Simpson,
David (Upper Bann)
(DUP)
Turner,
Karl (Kingston upon Hull East)
(Lab)
†
Uppal,
Paul (Wolverhampton South West)
(Con)
†
Vickers,
Martin (Cleethorpes)
(Con)
Sarah Davies, Committee
Clerk
† attended the
Committee
Third
Delegated Legislation
Committee
Monday
10 January
2011
[Mr
Charles Walker
in the
Chair]
Export
Control (Amendment) (No. 3) Order
2010
4.30
pm
The
Minister of State, Department for Business, Innovation and Skills (Mr
Mark Prisk):
I beg to move,
That the
Committee has considered the Export Control (Amendment) (No. 3) Order
2010 (S.I., 2010, No.
2843).
This
is the first time I have been under your guidance, Mr Walker, and I
look forward to your firm but fair leadership. The effect of the order
is to control the export of the drug sodium thiopental to the United
States of America. It prohibits the export of the drug to the US unless
the exporter has first obtained a licence from my right hon. Friend the
Secretary of State for Business, Innovation and Skills. I shall briefly
explain the medical and legal background.
Sodium
thiopental is an anaesthetic widely used in this country and Europe,
but it is also used in several states in America to anaesthetise
prisoners prior to execution. For several months there has been a
shortage of the drug in the US, 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
last year, Leigh Day & Co, solicitors acting on behalf of Mr Edmund
Zagorski—a prisoner on death row in Tennessee—wrote to my
right hon. Friend the Secretary of State inviting him to place controls
on the export of the drug. While affirming our opposition to the death
penalty, my right hon. Friend declined to impose export controls on the
drug. His primary concern was that he should not take action
that might cause delays to the export of a medicine that some patients
may need. The High Court granted permission to Leigh Day & Co to
conduct a judicial review of the decision. In light of that, on 12
November my right hon. Friend reaffirmed his decision not to impose a
control order. He reiterated that there remained a possibility of
legitimate trade in this important medicine and questioned whether an
order to control its export would be effective in preventing any
execution.
On
17 November, the first hearing of the case took place, and on 22
November the Court indicated that it would dismiss the
claimant’s arguments that my right hon. Friend was under a duty
under the EU charter of fundamental rights or common law to make an
export control order. The Court refused to grant interim relief, which
would, in effect, have required my right hon. Friend to make a control
order. The Court adjourned the claimant’s public law challenge,
which was due to be heard on 29 November.
In the
meantime, all parties sought to clarify the extent of any possible
lawful trade in the drug. Having consulted US lawyers, they all agreed
that, under applicable federal law, it is not currently lawful to
import sodium
thiopental into the US for medical purposes. Moreover, in the course of
the legal action, it was established that sodium thiopental is, at
present, hardly ever used for medical purposes in the US, although, as
I indicated, it is used widely elsewhere as an anaesthetic. Those two
discoveries mean that an order controlling the export of sodium
thiopental to the US should not have any adverse impacts on patients in
the US or on UK
exporters.
The
measure before us reflects the particular circumstances of the US and
applies only to that country. The US is unique in that sodium
thiopental is not currently used there in medicine, but is used for
capital punishment. An order that controlled the export of sodium
thiopental more widely would have affected legitimate medical trade in
a way that this order will not. On 29 November, my right hon. Friend
decided that the fresh evidence significantly strengthened the
arguments in favour of a control order; therefore he announced that he
would make an order under section 6 of the Export Control
Act 2002 controlling the export of the drug from the UK to
the
US.
The
order came into force on 30 November, and, from that date, any person
seeking to export sodium thiopental from the UK to the US 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 instance, it will assess the risks on a
case-by-case basis in light of all relevant factors. A breach of the
order is a criminal offence.
I am sure
that the Committee will wish to note that the control order covers both
the direct and indirect export of sodium thiopental from this country
to the United States. The indirect control applies when the destination
on the invoice is not stated as the United States, 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. Again for the information of the
Committee, orders such as this, which are made under section 6, last
for a maximum of 12 months.
On the basis
of those facts, I commend the order. Its operation and effect will be
kept closely under review in light of future developments. I look
forward to hearing the comments, questions and concerns of the
Committee.
4.36
pm
Ian
Lucas (Wrexham) (Lab):
It is a pleasure to appear before
you for the first time, Mr Walker. I wish the Minister a happy new year
and thank him for his full and detailed exposition of the particular
circumstances relating to this order. Her Majesty’s Opposition
fully support the position of the Government in connection with this
matter. We have long opposed the death penalty and were very concerned
to hear about this matter and the facts that have led to the possible
use of a UK-manufactured drug in connection with executions in the
United States. Let me make it clear from the outset that we fully
support the application that is being made. I only have a couple of
brief questions that arise from the Minster’s
explanation.
First, the
Minister referred to a previous case when sodium thiopental had been
exported. He then went on to say that import of the drug into the
United States was unlawful. Will he confirm that such an event did take
place and that there was not unlawful import of the drug to the United
States? If there was, has any action been taken in connection with that
particular incident, and is any action
contemplated?
Secondly,
we appear to have a common position on the death penalty on this
matter, but, as the Minister pointed out, this issue relates solely to
the United States. Is sodium thiopental used in any other country in
connection with execution? If so, are any steps being contemplated to
make unlawful the export from this country and import into that
country? Will the Minister clarify those two points? Subject to those
matters, the Opposition are very happy to support the new
order.
4.39
pm
Fiona
Bruce (Congleton) (Con):
I have a few questions for my
hon. Friend. First, what research was done to ascertain that this drug
is not to be used for medical purposes in the US? Secondly, what
constitutes an unreasonable risk that the drug is likely to be used for
executions? What is the test for that unreasonableness?
Thirdly—this is perhaps my greatest concern—the Minister
says that if an exporter knows that the goods will be re-exported to
the US and the destination is ultimately the USA, there could be
culpability on the part of that exporter. I am concerned to ensure that
the required threshold of knowledge is clearly determined, so that we
do not have a repeat of historic cases, in which companies have
manufactured components unaware that they would be used for the arms
industry
abroad.
4.40
pm
Glenda
Jackson (Hampstead and Kilburn) (Lab):
My question has to
do with recent reports of an individual exporting the substance. The
Minister spoke about exports to the United States, but in the reports
that I have read the export has been to one of the states of the United
States, to which another state, which has required usage of the drug,
has applied. Is there any conflict between federal and state law that
could impact upon the order, which, I too strongly
support?
4.41
pm
Mr
Prisk:
I thank all hon. Members for their contributions,
and I welcome the support of the hon. Member for Wrexham on this
difficult issue. We have to balance certain matters, but it is
nevertheless crucial to get it
right.
We
have no evidence of previous unlawful importation. It might be the
case, but the relevant law is that of the United States federal
authorities. Nor do we have evidence
of sodium thiopental being used elsewhere, but we will monitor matters
as events, and indeed regimes,
change.
My
hon. Friend the Member for Congleton asked about research. A careful
examination of the evidence of trade was undertaken by our authorities
here, working with the parties involved in the case. On unreasonable
risk, in the case of this drug the question of reasonableness comes
down to whether the exporter could reasonably be expected to know. The
hon. Member for Hampstead and Kilburn mentioned another case, to which
I shall come in a moment. A range of information is available to
authorities, some of which is obvious and some of which—I am
sure hon. Members will appreciate—I cannot refer to directly. We
examine all the information carefully so that we can decide whether it
is reasonable to assume that the individual is in a position to know
that the material is used for that
purpose.
On
the third issue raised by my hon. Friend the Member for Congleton, she
gave an example, but I wish to clarify the issue because there are two
possible answers regarding how this particular rule might work, and I
could explore that further. We have looked at the evidence, and as far
as we can see the control order should cover all the eventualities that
she has
mentioned.
On
the question asked by the hon. Member for Hampstead and Kilburn, there
is another case, albeit involving other, similar drugs, that is not
party to the order and I should therefore probably be careful in what I
say. We are monitoring carefully cases in which substances might have
more than one use, some legitimate and others medical but nevertheless
party to execution, to ensure that we can be confident that a similar
situation does not arise in the future. A live case has been brought to
the Government’s attention and we are considering it carefully,
but we always have to do so on a case-by-case
basis.
With
sodium thiopental, it appears that on careful examination the
legitimate trade in the United States is non-existent and therefore the
balance of interests is clearer. There will be other instances,
however, in which drugs have a beneficial effect in a marketplace and
are good for patients, for example muscle relaxants, but which can be
used in executions. We need, therefore, to be careful to strike the
right balance between legitimate trade and wanting to ensure that the
substance is not used for such purposes as we are discussing
today.
This
is a difficult issue. The Government will look reasonably at the
balance of each case as it comes forward and are aware of the concerns
that have been raised both in the public domain and among the business
community. I hope that in my answers I have dealt with the key points
raised in the debate, and I commend the order to the
Committee.
Question
put and agreed
to.
4.45
pm
Committee
rose.
