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Export Control (Amendment) (No. 3) Order 2011

Volume 728: debated on Tuesday 7 June 2011

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Export Control (Amendment) (No. 3) Order 2011.

Relevant document: 21st Report from the Joint Committee on Statutory Instruments.

My Lords, the order is being introduced under Section 6 of the Export Control Act 2002. Its effect is to control the export to the United States of America of the drugs sodium thiopental, potassium chloride, pancuronium bromide and sodium pentobarbital, when in a form suitable for injection. It prohibits the export of these drugs to the US unless the exporter has first obtained a licence from my right honourable friend the Secretary of State for Business, Innovation and Skills. To ensure consistency, this new order revokes the Export Control (Amendment) (No.3) Order 2010, which controlled the export of sodium thiopental to the US and which was approved by this Committee on 20 December 2010. I would like to start by reiterating some of the background to the 2010 order, as this provides the key context for the extension of export controls to these other drugs.

On 28 October 2010, Leigh Day & Co, the solicitors acting on behalf of a prisoner on death row in Tennessee, wrote to my right honourable friend the Secretary of State requesting that he place controls on the export to the United States of the drug sodium thiopental. Sodium thiopental—also known as thiopental sodium, as the noble Lord, Lord Young, noted previously—is an anaesthetic which is widely used in medicine throughout the world, but it is also used by some states in the US to anaesthetise prisoners prior to execution. There has been a shortage of this drug in the US for some months, which has led at least some states to seek supplies of sodium thiopental elsewhere.

While affirming the Government’s opposition to the death penalty, my right honourable friend declined to impose export controls on the drug immediately. His primary concern was that he should not take action which might cause delays in the export of a medicine which could be needed by patients. Leigh Day & Co was granted permission by the High Court to judicially review his decision and the first hearing of the case took place on 17 November 2010. The court adjourned the claimants’ public law challenge, which was due to be heard on 29 November. In the course of the legal proceedings, it emerged that, under applicable federal law, it was not currently lawful to import sodium thiopental into the United States for medical purposes. Moreover, it was established that at present sodium thiopental is virtually unused for legitimate medical purposes in the US.

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 UK’s moral opposition to the death penalty without impacting on legitimate trade and without adversely affecting the health of patients in the US. He therefore decided to make an order under Section 6 of the Export Control Act 2002, controlling the export of sodium thiopental from the UK to the US. The order came into force on 30 November 2010. Since that date, any person seeking to export sodium thiopental from the United Kingdom to the United States has required a licence issued by the Export Control Organisation within BIS.

Following that decision, the charity Reprieve formally asked the Government to extend the controls to cover the other drugs that are currently legally defined in the execution protocols of relevant US states. Most states use three drugs—sodium thiopental as an anaesthetic, pancuronium bromide as a muscle relaxant, and potassium chloride to stop the heart. At least one state, Oklahoma, has substituted the anaesthetic sodium pentobarbital because of the shortage of sodium thiopental.

While these drugs are currently used by some US states for the purposes of lethal injection in this way, potassium chloride and pancuronium bromide are both ordinarily used in human medicine, whereas sodium pentobarbital primarily applies to veterinary medicine. Officials within BIS consulted relevant UK marketing authorisation holders, trade associations and wholesalers to determine the potential impacts of extending controls on the export to the United States of these drugs. This suggested that currently there are no exports of these substances from the United Kingdom to the United States for medical or veterinary purposes, nor did there appear to be any prospect of such exports. In addition, unlike sodium thiopental, there has not been a comparable suggestion of a shortage of these drugs in the US. It follows that export controls on these drugs would be unlikely to impact either on medical exports by UK companies or on medical or veterinary practice in the US.

The Government’s conclusion, therefore, is that an extended control is justified. It will guard against future exports from the United Kingdom of drugs for the purpose of executions, and it will do so without harming legitimate trade. I should stress that the order reflects the particular circumstances of the United States and applies only to that country. An order that controlled the export of these drugs more widely might have affected legitimate medical trade in a way that this proposed order would not.

The order came into force on 16 April. From that date, any person seeking to export from the United Kingdom to the United States any of these drugs that are in a form suitable for injection 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, the organisation would assess the risks case by case in the light of all relevant factors. A breach of the order is a criminal offence. The control order covers both the direct and indirect export of sodium thiopental from the United Kingdom to the United States. The indirect control applies when the destination is not 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, 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 commend this order to the Committee. The operation and effect of the order will be kept under review in the light of future developments. I beg to move.

My Lords, nothing can be quite as stomach-churning as hearing one’s client being sentenced to death—as I have—and to know that the system of appeals will then follow. I was discussing only at lunchtime today one case where my client was condemned to death in Hong Kong. He won his appeal. There was a second trial and he was acquitted, but he ended up being executed in China by having a bullet put in the back of his neck. It is something which—old Liberal or new Liberal Democrat—I and my party have opposed for a very long time and I am delighted that this order has been brought forward.

I hope that I shall not again have the experience that happened not so very long ago when I received a phone call from someone on death row in a Caribbean country telling me that they were building gallows outside his cell and that he was due to be executed on the following Monday—this being a Friday afternoon. Fortunately, on that occasion we were able to save him.

The death penalty is a disgusting punishment. It is contrary to Article 2 of the European convention and contrary to all human rights conventions throughout the world, and I am pleased that this order takes it further.

My Lords, we have been round this statutory instrument track before but I congratulate the Minister on a comprehensive report. I am now a lot more knowledgeable about sodium thiopental and pancuronium bromide—clearly a word with which the Minister had trouble. It was a comprehensive report. I was not aware of the precise usage of these particular drugs and we welcome the fact that there is both a direct and indirect control. That is important.

I have one question before I conclude. In paragraph 8—the consultation outcome—it rather strangely says:

“Following a short general industry consultation, the trade between the UK and the US on these products appears to be negligible”.

Does “appears to be negligible” mean that they were not satisfied with the process of validation? If the Minister cannot answer today, I would welcome a response in writing.

We on this side share the abhorrence of the noble Lord, Lord Thomas, of the death penalty. He reminded us in graphic terms what it is like for individuals facing that fate, which is unfortunately still too common in many countries around the world. The fact that we can play a small but important role in ensuring that we do not contribute towards a practice that all of us in the House abhor is important. Apart from my one minor question, we, too, welcome this statutory instrument.

My Lords, I am grateful to my noble friend Lord Thomas of Gresford for recounting his personal experiences as a distinguished lawyer on the subject of execution and I thank him for his support for the order. Yes, the noble Lord, Lord Young, and I have been round these statutory instruments before, but I am grateful to have his immediate support for this one. I apologise for my pronunciation of some of the drugs. I am not up on it—and I am very happy not to have been up on the names of those particular drugs.

As to the question of the noble Lord, Lord Young, about the words “appears to be negligible”, I have it here that there should be minimal if not zero legitimate trade in these drugs. Our consultation has shown that there is no trade. I am sorry, but my official could not understand what was written and I cannot read the reply, which is very embarrassing. I shall try again. It should be “minimal if not zero”; there is no trade.

I am sorry that I made such a fist of that when all I had to do was say that I hope I have dealt with the key points made by the noble Lord and that I commend the order to the Committee.

Motion agreed.