Session 2010-11
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General Committee Debates
Delegated Legislation Committee Debates

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

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

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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

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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. 

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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

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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.