Zagorski & Baze, R (on the application of) v Secretary of State for Business, Innovation and Skills & Anor

Where a Member State decides whether to impose export restrictions in a field closely regulated by European Union law, it is implementing Union law and must act consistently with applicable fundamental rights. The Charter of Fundamental Rights applies only within its material field of application. Rights corresponding to Convention rights have the same personal scope under article 52(3) of the Charter as under the Convention, unless Union law provides more extensive protection. The common law may protect fundamental rights independently of the Human Rights Act 1998, but it does not create a general duty to protect an individual from third-party conduct or circumvent the Convention’s jurisdictional limits. Fundamental rights may nevertheless require anxious scrutiny and enhanced justification when an administrative decision is challenged.

The claimants, United States citizens sentenced to death in Tennessee and Kentucky, sought judicial review of the Secretary of State’s refusal to impose export controls on sodium thiopental under the Export Control Act 2002. They argued that the proposed use of the drug in executions engaged the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, common-law fundamental rights and the statutory purpose of the export-control regime.

The Secretary of State maintained that the claimants were outside the United Kingdom’s Convention jurisdiction, that the Charter did not confer rights on persons in their position, and that the statutory and European export-control regimes did not require a ban. The court gave a preliminary ruling on the Convention, Charter and common-law issues. Argument on rationality was deferred pending clarification of the legality of importing sodium thiopental into the United States.

1. Convention jurisdiction. The claimants were not within the United Kingdom’s jurisdiction for article 1 of the Convention. They were United States citizens convicted, detained and facing execution in the United States. The possible export of the drug from the United Kingdom and the Secretary of State’s decision in the United Kingdom did not alter that conclusion. The Soering v United Kingdom principle concerns a person within the territorial jurisdiction or effective control of the respondent State and did not assist the claimants.
2. Charter. In deciding whether to impose an export ban, the Secretary of State was acting within the material scope of European Union law. Export restrictions were closely regulated by Union law, while the applicable regime permitted a Member State derogation. The decision whether or not to exercise that derogation therefore constituted implementation of Union law for article 51(1) of the Charter.
3. Articles 2 and 4 of the Charter correspond to Convention rights. By article 52(3), their meaning and scope, including their personal scope, were co-extensive with the corresponding Convention rights unless Union law provided more extensive protection. The claimants therefore could not invoke those Charter rights.
4. Common law. The common law can protect fundamental rights independently of the Human Rights Act 1998. It does not, however, impose a general common-law duty on the Government to take positive steps to protect an individual’s life from third-party action, or circumvent the jurisdictional limits of the Convention and the Human Rights Act. The principle of legality did not provide an independent ground of challenge on these facts.
5. Fundamental rights remained highly material to rationality review. Where such rights are in play, the court applies anxious scrutiny. The greater the interference, the greater the justification required before a decision can be regarded as rational. This increases review intensity but does not create a free-standing common-law ground of challenge. The rationality issue was adjourned for further consideration.