EU fundamental rights do not extend to US death row, says High Court

2 December 2010 by

R (on the application of Zagorski and Baze) v Secretary of State for Business, Innovation and Skills and Archimedes Pharma UK Ltd – read judgment

The Administrative Court has put down a marker on the potential applicability of the EU Charter of Fundamental Rights about the morality of certain trade with the United States. The case concerned the export of Sodium Thiopental, an anaesthetic drug that is used as a preliminary to the lethal injection for prisoners on death row. This is the first time a domestic court has made a definitive ruling on the potential role of the EU Charter in domestic law. Earlier this year the Court of Appeal referred a question on the Charter to the ECJ for determination on its relevance to asylum proceedings: see R (S) v Home Secretary & (1) Amnesty International & AIRE Centre (2) UNHCR and our post on the subject.

ST is an old style anaesthetic whose normal surgical use in the UK has now become somewhat attenuated due to the advent of lighter, shorter term anaesthetic medications. It is however still an authorised anaesthesia, in this country and the States and indeed is listed as a core medicine in the World Health Organisation’s list of “essential drugs”. Reprieve, the pressure group backing the case, advanced evidence that the drug was being exported to the US solely for the purpose of execution by lethal injection of prisoners on death row, including two British nationals. The government’s refusal to ban or control the export was, it was argued, in breach of Articles 2 and 4 of the EU Charter (which are equivalent to the right to life under Article 2 and the prohibition on inhuman treatment under Article 3 of the ECHR). They also submitted that the export was unlawful in the sense that it offended against common law principles of legality and the right to life, and was contrary to the purposes of the Export Control Act 2002 and irrational, given what the defendant knew about the ultimate use of the product.

The case was due to be heard on 22 November but had to be adjourned as a result of new information about the drug’s ultimate destination. At the resumed hearing the Secretary of State conceded to the pressure to impose controls, although what these controls will amount to remains to be seen; suffice to note at this point that there is no outright ban on the export.

In any event, the political victory must not obscure the somewhat stark message at the core of the judgment, which is that there is nothing in the common law or human rights law to prevent a government from distributing products irrespective of the perceived wickedness of their ultimate use. This question stands at the centre of a long-standing legal, political and economic debate about trade, and we can see from this judgment that this debate is furthered not a jot by the invocation of human rights jurisprudence.

Although Lloyd Jones J postponed the decision on the rationality point until further evidence becomes available on FDA policy, his judgment on the two preliminary issues of the EU Charter and common law legality deserve close attention.

The Export Control Act

The 2002 Act seeks to balance the demands of free trade with those of the United Kingdom’s international obligations. So controls on exports may be imposed in relation to any goods the exportation or use of which is capable of having a “relevant consequence”, and one of these “relevant consequences” listed in the table annexed to the Act is “the carrying out anywhere in the world of (or of acts which facilitate) …breaches of human rights.”

Although the destination country in this case was the United States, the close and detailed regulation by the EU represented the claimants’ best hope. That is because EU rules on export to third countries are based on the same principles of free movement that form the core of legislation governing trade within the European Community itself. Therefore the same derogations apply – Member States may impose quantitative restrictions on exports on grounds of “public morality”, “the protection of health and life of humans” and so on.

However, the permitted derogations are governed by EC Regulation 1236/2005 “the Torture Regulation”, and the UK Export Control Order 2008 which implements it. Although the regulation deals specifically with trade in certain goods that could be used for capital punishment, it does not include “medical-technical goods” in its schedule, and 2008 Order does not expand the list of controlled goods beyond those specified in Annex II to the Torture Regulation. So this was ultimately of no avail to the claimants.
ECHR Rights

It was conceded early on that these Claimants were not entitled to the protection of the Convention. Despite constant citation, the effect of the “death row” case of Soering v United Kingdom (1989) 11 EHRR 439 has been profoundly diluted by a more recent line of authorities on the jurisdictional limits of the Convention under Article 1, notably, Bankovic v Belgium and others (2007) 44 EHRR 1 and R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26:

The Claimants are US citizens convicted and sentenced by US Courts in respect of offences committed in the United States. They are being held in the United States. They face a penalty imposed in accordance of the laws of the United States which will be implemented there. They are not and never have been at any material times within the territorial jurisdiction of the United Kingdom. The fact that the drug may be exported from the United Kingdom and the fact that the decision of the Defendant was taken in the United Kingdom do not serve to bring this matter within the jurisdiction of the United Kingdom for the purposes of Article 1. Furthermore, none of the exceptional extensions of the concept of jurisdiction has any application on the facts of this case.

The EU Charter of Fundamental Rights

Because the judge accepted the claimants’ argument that EU law was engaged by the government considering whether or not to exercise its powers under the Export Control Act, the claimants maintained that they were entitled to invoke the corresponding rights under the EU Charter. However the judge found that the rights recognised by Articles 2 and 4 of the Charter are co-extensive with the rights in the Convention with which they correspond, not only in terms of their content but also in terms of the scope ratione personae of their application:

If the Claimants were correct in their submission that the Charter recognises Convention Rights without the limitation imposed by Article 1 ECHR, the result would be very radical indeed. Whereas States party to the Convention undertake to secure Convention rights to persons within their jurisdiction (in the sense explained in Bankovic) the Charter would confer such rights on anyone, anywhere in the world, regardless of whether they have any connection with the EU. That such a result should be brought about without any express reference to the massive extension which was being effected would be most surprising.

Rights protected by the Common Law and the Principle of Legality

The problem with this argument is that the common law, replete with principle though it may be, cannot be pressed into service to make good the jurisdictional limits of the Human Rights Act, nor cannot it be suborned to create new duties of care beyond those established categories of case such as negligence where a duty is concerned. Even Article 2 of the ECHR, still less the common law, has not been extended to impose a duty on the government to take positive steps to protect an individual’s life from the actions of a third party – the ECtHR recognised this in Osman v United Kingdom ; at para 112, considering the duties imposed by the state’s obligation to respect the right to life under Article 2, it observed:

For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.

So, however satisfying the spectacle may have been of the government performing a U-turn on this issue, it should be looked at in the wider context. The first point to make is that the product at the centre of all this soul searching product itself is not manufactured in the UK; it is produced in Austria as part of the Novartis pharmaceutical group. Products with actual lethal effect are manufactured aplenty by British defence companies, whose exports have generated, in one case, an annual turnover of over £22 billion. These exports are subject to a myriad of controls, but this has not prevented in any way the increasing sales to the US, or the supply of fighter aircraft and other military equipment to Saudi Arabia, Israel, India and Pakistan.

The Secretary of State declared, in a letter responding to the claimants’ solicitors, that “the United Kingdom firmly opposes the death penalty in all circumstances as a matter of principle” , and the best possible interpretation to apply to the government’s response to this case is that it is a principled one. But in terms of ensuring that the end use of our exports does not offend fundamental principles of humanity, we are by no means out of the woods.

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