KONP Position Paper

POSITION PAPER ON THE TRANSATLANTIC TRADE AND INVESTMENT PARTERSHIP (TTIP)

Keep Our NHS Public (KONP) was founded to preserve the National Health Service (NHS) as a universal, publicly provided, publicly funded service free at the point of need. KONP has serious concerns about the Transatlantic Trade and Investment Partnership and its potential to destroy the NHS through extending recent governments’ policies of privatisation and marketisation.

Summary

A. Keep Our NHS Public (KONP) is seriously concerned that the EU-US negotiations of the Transatlantic Trade and Investment Partnership (TTIP) will lead to a permanent legal entrenchment of the provision of health and care services on a market basis, across the EU Member States, including the UK.

B. Additionally, the envisaged TTIP Treaty will mean that any future UK government wishing to reverse the marketisation of the NHS (extended by the Health and Social Care Act, 2012) will be prevented from doing so by the inclusion of the NHS in the Treaty and by its Investor-State Dispute Settlement (ISDS).

C. Moreover, the ISDS procedure and other indirect aspects of TTIP (e.g. investor protection and the remit of the Regulatory Co-operation Council) will adversely affect the ability of the UK and other EU Member States to set standards and to regulate health and social services and associated services and products, without fear of being sued for compensation for loss of future profits by private companies using commercial law.

D. KONP is concerned that harmonisation of regulations will undermine labour rights and, for example, entrench low pay and zero hours contracts. In addition, the envisaged TTIP Treaty may adversely affect medical and professional training and qualifications.

Demands

1. To ensure the ability of future UK governments to regulate, contain costs, enhance co-operation within the NHS and return it to public provision, KONP calls for health and social services to be broadly exempted from the TTIP Treaty.

2. KONP also calls for the ISDS to be removed from the TTIP Treaty.

3. EU labour and medical and professional training and qualifications standards must be specifically protected under the TTIP Treaty.

4. KONP calls on the UK Government, the European Commission, and the European Parliament to reject any Treaty which does not conform to these demands.

KONP’s case

KONP was founded to preserve the public character of the National Health Service in response to UK government policy and measures to subvert the NHS by further marketisation, privatisation, and fragmentation. The latest, and most far reaching, challenge facing the NHS comes as part of the negotiations on the Transatlantic Trade and Investment Partnership (TTIP), which is designed to promote further market liberalisation and access to health and social care service contracts by transnational conglomerates.

These essentially confidential negotiations are taking place between the European Commission, on behalf of the 28 EU Member States, and the US Administration. These negotiations, strongly supported by the current British government, are aimed at securing a new trade and investment treaty, between the EU and the USA.

It is suggested (on scant evidence) that there will be substantial trade, income, and jobs benefits for the UK, arising from the TTIP. This may be so for some industrial and commercial sectors. However, there will be damaging effects on health and social care provision in the UK. Regulatory harmonisation is likely to undermine conditions for health workers and standards of public health. The current UK movement towards extensive marketisation, privatisation, and fragmentation of health and social care services will be accelerated. Thus KONP demands that health and social care services should be broadly exempted from the TTIP in order to maintain the freedom of future UK governments to choose to maintain these services as public provision based on the principles of solidarity and universality, and not as marketable services.

Also disputes over investments raised by companies will be settled by an undemocratic private commercial mechanism (ISDS). With ISDS, contrary to traditional business practice, disputes are heard before a panel of international corporate lawyers in secret and are judged on commercial values alone. Hence, ISDS will prevent the UK government and parliament from overturning any settlements that damage the interests of the UK health and social care services. Any such disputes should be dealt with between states, without any direct legal intervention by corporations.

KONP wants to draw as wide a public attention as possible to these damaging implications for health and for social services and to the challenge to democratic procedures in the UK. Our position is that health and social services must be broadly exempted from the TTIP and the current ISDS procedure withdrawn.

Recommendations

1. Health and social care services should be completely exempted from the TTIP Treaty in a clear and watertight manner.

2. The current ISDS should be removed from the TTIP Treaty and replaced by a state-to-state disputes resolution procedure, which prevents direct legal challenges by investors on commercial grounds.

3. EU labour and medical and professional training and qualifications standards must be specifically protected under the TTIP Treaty.

Conclusions

The issues raised by KONP in relation to the UK provision of health and social care services under the TTIP are fundamental to the protection of the UK provision of health and social care services and to the preservation of the democratic freedom of action of future British governments to maintain the public provision of these services.

KONP calls on the UK Government; the European Commission and the European Parliament to fully support our position on the TTIP and reject any Treaty that does not allow the broad exemption of health and social care services from the Treaty and the removal of the current ISDS procedure.

Date: 19th March 2014

Contacts: Adeline O’Keeffe and Camilla Giambonini campaignmanager@keepournhspublic.com officepa@keepournhspublic.com

Keep Our NHS Public, c/o Volunteer Centre Hackney (VCH), Unit 12/13,Springfield House, 5 Tyssen Street, London E8 2LY

Appendix: Additional details

I. In previous trade treaties, such as the General Agreement on Trade in Services, EU directly provided public services, including health and social care services, have been specifically exempted from the scope of such agreements. Moreover, the EU legal definition of health and social care services is that they are generally regarded as being provided on the basis of “solidarity and universality”. However, a number of EU Member States, including the UK, have moved to the provision of these services on a market basis and the European Commission appears supportive of this move towards the ‘liberalisation’ of health and social care services. Without the clear exemption of health and social care services from the TTIP this new extension of liberalization and marketisation would threaten the legal underpinning of the non-commercial provision of the health and social care services. This could lead, via the European Court of Justice, to a ruling which alters the current legal position and would then lead to challenges by national and transnational companies wanting competition law to be applied fully to these services. Such a situation would damage any potential for integration and innovation in health services, and the integration of public health and social care services.

II. The inclusion of the ISDS in the TTIP would give corporations whose future markets were affected by a change in government policy the right to sue for loss of profits. It is a relatively common feature of trade treaties between developed nations and less developed ones, where the rule of law might not be reliably entrenched. An ISDS would undemocratically cement the ability of private transnational companies to challenge and override, on the basis of commercial law, governments and national courts operating on public law. It would remove the right of a future UK government to reverse the marketisation of the NHS (entrenched by the Health and Social Care Act, 2012) as a result of a future democratic mandate. Other EU Member States would be placed in the same fundamentally weakened position. It is important to recognise that, apart from the ISDS itself, rules on investment protection and other indirect aspects of TTIP may adversely affect the NHS.

III. Without appropriate exemptions from the treaty, a government’s ability to regulate professional standards and qualifications for health care staff could be restricted, with worrying implications for patient care.

IV. Harmonisation of regulations between the EU and US will undercut current standards of regulation on health promotion or protection in the UK (e.g. regulations concerning food labeling, pesticides and chemicals). The assessment of new health technologies and drugs, and the regulation of pharmaceuticals and health products would also be similarly threatened.

V. The TTIP may also mean a general leveling down of labour standards, especially as the USA has not implemented some of the most fundamental labour rights set out by the International Labour Organisation, such as the rights to freedom of association and collective bargaining.