Cameron has the power to exclude the NHS from the trade deal – he must act

A report commissioned by Unite, the UK’s biggest union, from Michael Bowsher QC of Monckton Chambers, a specialist in procurement law and an expert in EU legislation, concludes that TTIP (the Transatlantic Trade and Investment Partnership) currently being negotiated in secret between the US and the EU could “pose a real and serious risk to the future ability of [the British government] to regulate the NHS”. Unite submitted the report to the British government today, 23 February. Copies have also been sent to all UK MPs, MEPs, Scottish MSPs and Assembly Members from Wales and Northern Ireland.

The precise details of the TTIP negotiations have not been made public, but we do know that one of the main demands by the US is that secret tribunals should be used to bypass domestic courts in resolving disputes involving privatised provision of services. According to Unite, TTIP “threatens to make the sell-off of the NHS irreversible”.

The UK Minister responsible for TTIP, Francis Maude MP, has admitted that he has legal advice concerning the impact of TTIP on the NHS but has blocked a freedom of information request to obtain the advice citing “legal professional privilege”. Unite is attempting to break through the wall of secrecy around TTIP which has enabled the British government to make statements such as this, from the Department for Business, Innovation & Skills (BIS): “The NHS is under no threat whatsoever from the TTIP deal or any other trade and investment agreement. It cannot force the UK to privatise public services or prevent it from regulating in the public interest and any suggestion to the contrary is both irresponsible and false.”

But Unite’s assistant general secretary, Gail Cartmail, says the report refutes BIS’s claims. “For too long politicians have done too little to protect the NHS from the threat of irreversible privatisation,” Cartmail says. “Now there is no excuse. The legal advice is clear, TTIP is a real and serious risk to the NHS. Unless the UK gets robust protection, the US private health industry can override the will of Parliament on matters relating to our health.”

The report, titled TTIP and its potential impact on the NHS, concludes that:

  • TTIP gives investors in existing NHS service providers new legal rights which go beyond UK and EU law and can bypass existing NHS contracts;
  • TTIP’s procurement rules could force the NHS to contract out services it wants to keep in house or spin off as “mutuals”;
  • TTIP currently poses a threat to future governments wishing to take privatised services back into public hands;
  • A new right, known as the “right to regulate”, been incorporated into the trade deal by the European Commission in order to counterbalance TTIP’s threat to domestic regulatory authorities, could not be relied on to protect a British government from legal action if it sought to cancel privatised NHS contracts;
  • Private companies with some investment in NHS contracts could get higher levels of compensation under TTIP than under domestic or European law if such contracts were cancelled, which could have the effect of suppressing future healthcare legislation through the phenomenon of “regulatory chilling”.

Following prime minister Cameron’s claims that he has negotiated a special status for Britain within the EU, it is difficult to understand how he has remained complicit in letting a deal proceed which threatens to sell off what remains of the UK’s public health service to private healthcare companies from outside Britain.

“The UK government has no right to allow EU bureaucrats to negotiate away our ability to control the future of our NHS,” says Cartmail. “David Cameron has the power to exclude the NHS from the trade deal – he must act and prevent the irreversible sale of our NHS.”

Download Michael Bowsher’s report here [PDF].


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Gary Herman

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