TTIP: ‘Real and serious threat’

The government has repeatedly dismissed fears that an EU-US trade deal, currently being negotiated in secret, would threaten the National Health Service.

Critics have long warned that clauses contained within the Transatlantic Trade and Investment Partnership (TTIP) could render privatisation of the NHS irreversible by empowering companies to sue governments in secret courts for loss of profits if governments try to take privatised services back into public hands.

But today (February 23) one of the UK’s foremost QCs on European law has lent his expertise to the debate – and he argues that our worst fears are entirely justified.

In a legal analysis prepared for Unite, Michael Bowsher QC, a former chair of the Bar Council’s EU law committee, has said that TTIP poses a “real and serious threat” to the NHS because the protections that are supposed to shield public services from rampant privatisation in such trade deals are vague and can easily be manipulated in courts.

Bowsher argued that TTIP gives investors new legal rights that would mean that they could seek even more compensation from governments than are now available to them under UK or EU law.

Proponents of TTIP have time and again pointed to sovereign governments’ “right to regulate”, which European trade commissioner Cecilia Malmström has assured would be protected and enshrined in TTIP.

But Bowsher highlighted that the “right to regulate” already exists – and it hasn’t stopped companies from successfully suing governments for compensation for loss of profits when governments have attempted to regulate in the public interest.

If a future government wanted to, for example, repeal the Health and Social Care Act of 2012 – legislation that ushered in NHS privatisation – foreign investors who may have bid on private contracts for NHS services could very easily sue the UK government for damages to their profits and future business prospects.

Even if the claim were not successful, Bowsher noted, the threat of such a claim could have a “chilling effect” on any future policymaking that seeks to protect public services from private hands.

‘Chilling effect’

In fact, this ‘chilling effect’ is already taking its toll on the NHS, as Unite revealed earlier this month.

Unite found that some Clinical Commissioning Groups (CCGs) have previously tried to block companies from bidding for work if they use convoluted tax structures. But Bristol CCG is now in the process of scrapping the rules for fear of legal action by global corporations that use tax avoidance structures.

Unite national officer Colenzo Jarret-Thorpe noted that this demonstrated how much more at risk the NHS would be under TTIP.

“Allowing Google style tax arrangements in the NHS is a genuine national scandal,” he explained. “The health secretary, Jeremy Hunt has left the door open for  tax avoiders to scoop up NHS contracts. They can even threaten the NHS with legal action if commissioners put preventative measures in place to ensure companies pay their fair share of tax.”

‘Irreversible privatisation’

“Worse still the government is doing nothing to stop US investors getting even more rights to litigate against the UK through the trade deal TTIP,” he added. “The Conservative government holds legal advice on the impact of TTIP on the NHS but has blocked a number of requests to make the advice public. Without action the NHS is on the road to irreversible privatisation.”

Indeed, the minister responsible for TTIP, Francis Maude, recently admitted that he already holds legal advice about the trade deal and its impact on the health service, but when campaigners asked for this advice to be publicised through freedom of information requests, Maude denied the requests, citing ‘legal professional privilege’.

While it may be unlikely that TTIP will be stopped in its entirety, Bowsher advised that the only way to protect the NHS from privatisation if the deal goes through would be to explicitly exclude it from any of the provisions in the trade agreement.

“Given the substantial risks involved we do not see why a well-advised negotiator would not seek to ensure that the position of the NHS was protected,” he noted. “The safest course would be for the NHS to be the subject of a specific exclusion contained within the main body of the TTIP text.”

 

So far the UK government has refused to seek any such an exclusion to protect the health service, saying that suggesting the NHS was in danger under TTIP would be “both irresponsible and false.”

But Bowsher’s legal advice, which Unite is set to present to the government at a meeting with the department for business, innovation and skills today (February 23), will finally put to rest any doubts about TTIP’s threat to the NHS.

Unite has also sent the legal advice to all UK MPs, MEPs, Scotland’s MSPs and Assembly Members from Wales and Northern Ireland.

Unite assistant general secretary Gail Cartmail lambasted the UK government’s inaction on TTIP that could threaten the NHS as we know it, especially considering the mounting evidence against the dangers of TTIP.

 

“For too long politicians have done too little to protect the NHS from the threat of irreversible privatisation. Now there is no excuse,” she said. “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.

“David Cameron has the powers to prevent EU bureaucrats from handing rights over our NHS to America,” Cartmail added. “The European Commissioner for Trade, Cecilia Malmström has even offered to change the wording of the TTIP agreement as far back as February last year. If David Cameron does not use the power to exempt the NHS, they will not be able to plead ignorance when TTIP is used to attack the NHS.”

Read the full legal advice here.