UK: On TTIP and the NHS, they are trying to bamboozle us

By John Hilary 14 July 2014, for Open Democracy

The TTIP trade treaty talks re-open in Brussels this week. We should not be reassured by the convenient ‘leak’ of a private letter between key TTIP advocates claiming the treaty poses no threat to the NHS.

The NHS [National Helath Service]has become a key battleground for the Transatlantic Trade and Investment Partnership (TTIP), the controversial treaty currently being negotiated in secret between the European Commission and the US government.

Now that more and more people are becoming aware of the threat that TTIP poses to public services, the European Commission and its friends have found a new and inventive way of trying to bamboozle people into accepting it.

On the eve of the sixth round of talks, which begin in Brussels this week, a ‘private’ letter from the EU’s chief negotiator, Ignacio Garcia Bercero, to John Healey MP was conveniently leaked to the Guardian and Financial Times. The letter attempts to downplay the fact that public health services are included in TTIP, suggesting that there is no need to fear for the NHS as a result.

The media went further, suggesting that there was to be a ‘carve out’ for the NHS, or that US companies would not be allowed to run public health services in the future. Both claims are entirely false.

The first thing to note is that there is nothing new in the letter, nor any change in the EU’s position. The European Commission has used exactly the same arguments to defend the inclusion of health, education and other public services in all previous trade agreements, as those of us who have been engaged in these debates for the past 20 years know all too well. Yet trade experts point out that public services are still highly vulnerable when they are included in negotiations, particularly when private operators have been granted access to public sector contracts, as is the case with the NHS.

The second thing to note is that the letter came from the chief EU negotiator to one of the principal cheerleaders for TTIP in Britain. John Healey chairs the all-party parliamentary group on EU-US investment, and has been doing his best to prevent trade unions and campaign groups from joining opposition to TTIP over the past few months. Happily, all major trade unions in Britain are now part of the campaign to stop TTIP. So here are some basic truths on the NHS and TTIP, starting with the most important and getting more technical as they go on:

1. Health services, medical services (including midwifery and physiotherapy) and dental services are all included in the TTIP negotiations. We already knew this because we saw it with our own eyes in the EU’s draft offer to the USA that was uncovered last month. Indeed, Garcia Bercero’s letter acknowledges that health services are on the table. The only sector that has been excluded from the TTIP talks is audio-visual services, as a result of dogged insistence by the French. All other public services are in, and can be traded away for further liberalisation if the US negotiators so demand.

If David Cameron wished to exclude the NHS or any other public service from the negotiations, he could do as the French government has done. All that is needed for this to happen, as the British Medical Association (BMA) has demanded, is for no mention of health services to appear in TTIP at all. In reality, of course, it is Cameron’s government that has already opened up the NHS to private providers by means of the 2012 Health and Social Care Act. Why would he raise a finger to get it excluded from TTIP?

2. Garcia Bercero’s letter also confirms another key charge from opponents of TTIP: that the NHS is open to attack under the new investor-state dispute settlement (ISDS) rules that TTIP would introduce between the EU and USA. For the first time, US corporations would be able to bypass our domestic courts and challenge our national health policy decisions before ad hoc arbitration tribunals, and to sue us for hundreds of millions of dollars in ‘damages’ as a result of future policy changes that might affect their bottom line. This is one clear mechanism that would prevent any future government from bringing the NHS back into public sector hands, as the cost of compensating private providers would render such a move instantly unattractive.

Garcia Bercero would like us to believe that future challenges to the NHS would be ‘unlikely’. Yet the Slovak Republic has already lost a multi-million dollar case under similar rules to Dutch insurance company Achmea for reversing the country’s earlier (and deeply unpopular) privatisation of health insurance. Tobacco giant Philip Morris is currently using ISDS provisions to sue the Australian government for billions of dollars over its new public health law that all cigarettes must be sold in plain paper packaging. Ken Clarke MP, the minister with responsibility for TTIP, has admitted that the UK could face exactly such challenges from US health corporations if the treaty goes through.

3. Garcia Bercero’s next argument invokes the safeguard on services supplied ‘in the exercise of governmental authority’ that was first introduced in the 1994 General Agreement on Trade in Services (GATS) and has become standard in other trade agreements since. Yet this safeguard is worthless in protecting public services in the modern era, as the definition of services supplied ‘in the exercise of governmental authority’ requires them to be supplied (a) not on a commercial basis, and (b) not in competition with any other service supplier. As trade experts have confirmed over many years now, the NHS does not qualify for this protection on either of the two counts.

4. This brings us to the final reason given by Garcia Bercero as to why we should not worry about the inclusion of public services in TTIP. Individual EU member states are still allowed to register their own special reservations for particular services in the liberalisation tables drawn up by the negotiators and submitted to the other side in the talks. Yet the UK government has entered such a reservation in TTIP for ambulance services only. Under TTIP, US health care companies would have the right to supply hospital services or social services.

International trade negotiations are deliberately complex, and this has long allowed officials to bamboozle the general public with impunity. Releasing Garcia Bercero’s letter into the public domain (it is available here) has allowed TTIP’s supporters to claim that the treaty poses no threat to the NHS. The opposite is true, and our struggle against TTIP continues as before.