Public services, like the NHS, are generally thought to be protected from FTAs. For example, the World Trade Organisation’s General Agreement on Trade and Services (GATS) requires that public services are safeguarded from the terms of FTAs, provided that they are not supplied on a commercial basis or in competition. But over recent years it has become unclear whether the NHS meets these conditions. It may still be publicly funded, but it has nonetheless been turned into a competitive market, with private providers involved in delivering NHS services and able to make profits. The NHS has been opened up to private companies for many years now, but any remaining doubt about whether it’s is protected from FTAs was largely removed in 2012, when Section 75 of the Health and Social Care Act (HSCA) ensured competition between private and NHS service providers.
The prospect of being unable to intervene and regulate healthcare in the interests of public health, or to ensure quality services, has led some governments (e.g. Canada) to seek the exemption of health services from FTAs. Not so our current government.
This is despite members of the EC and of our own government repeatedly issuing assurances suggesting that the NHS is protected from treaties like TTIP – usually on the grounds of the commitment made in GATS (mentioned above). These sources have also said that TTIP would not compel a UK government to privatise NHS services. This is a smoke screen as the NHS is already largely privatised.
They have also issued assurances that there is nothing in TTIP that prevents member states of the EU managing their own health services (or public services) as they see fit. This is true – up to a point. TTIP, for example, could not force a government to privatise a health service that is entirely publicly-provided. But once health services have been opened up to the market – as the NHS has been as a result of the Health and Social Care Act (2012) – TTIP will make it almost impossible for a future government to reverse this: services that have already been privatised become permanently open to US-based investors. This is a treaty that gives irreversible commitments to provide such investors with ‘market access’ (i.e. the right to enter the UK market and operate without limit on their activities) and ‘national treatment’ (i.e. the right to equal treatment with domestic companies with, for example, the same right to government subsidies). Attempts to bring NHS services back into the public sector – along with other reversals (e.g. if charges for NHS treatments were introduced and a future government wished to reverse this) – would also trigger massive claims for compensation under ISDS of ICS.
In January 2016, a Freedom of Information request to the Department of Business, Innovation and Skills sought details of any evidence that the Department or the UK Government held that proved the NHS will not be subject to TTIP. This request was rejected, apparently on the grounds that disclosure could make the Department’s officials more cautious in future about about obtaining legal advice on TTIP, and because disclosure could prejudice the position of the EC’s negotiators. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/494166/foi-2015-28993-TTIP-transatlantic-trade-and-investment-partnership-impact-on-the-NHS.pdf
There is no convincing evidence in the public realm to support assurances that, under TTIP, the NHS is protected. In contrast, there is every indication of the NHS being at risk. For a start, the services that are to be included in TTIP are decided on a ‘negative listing’ approach: those services to be exempted are explicitly listed, while those not listed are subject to TTIP. We know that in the case of TTIP, the NHS is not listed, nor are any other public services in the UK. In keeping with this, the Department of Health has stated that excluding health services from TTIP would not be in the UK’s interests (this was in a letter written to Keep Our NHS Public in 2014). It’s also worth remembering that while working in the USA, the current Chief Executive for NHS England was a founder member of The Alliance for Healthcare Competitiveness – a US lobby group pushing for the inclusion of health in TTIP (see https://www.opendemocracy.net/ournhs/caroline-molloy/nhs-boss-stevens-and-ttip-lobbyists).
At the moment, it’s unclear whether the NHS remains at risk from TTIP, following the UK vote to leave the EU. Before the referendum, it was clear that the NHS would be included in TTIP unless there was an explicit exemption. And because the NHS is dependent on a number of concerns – it is, for example, closely linked to public health, social care, new technologies and drugs – to make it exempt meant exempting these other concerns as well. For a more detailed discussion of this issue, and whether or how the NHS could have been exempted pre-Brexit, see
- the briefing paper “Can the NHS be made exempt from the NHS?” in the TTIP section of Keep Our NHS Public’s page on background material: http://keepournhspublic.com/support-konp/background-material/
- the report commissioned by Unite on the legal implications of TTIP for the NHS: http://www.unitetheunion.org/uploaded/documents/FINAL%20Legal%20implications%20of%20TTIP%20for%20the%20NHS%2012%20Feb%20201511-21864.pdf.
- videos of talks by MEPs with insight into whether the NHS can be exempted from TTIP, plus ‘stakeholders’ (the British Medical Association’s EU Policy Manager and the Secretary General of the European Public Health Alliance) on the impact of TTIP on the delivery of health services and on public health in general: http://www.rcn.org.uk/newsevents/news/article/uk/transatlantic-trade-and-investment-partnership-ttip.
- a 15 minute video explanation of why public services are at risk from FTAs like TTIP and TISA, see http://www.waronwant.org/media/ttip-ceta-tisa-and-public-services.
- Legal advice that TTIP represents a serious threat to the NHS: http://www.buzzfeed.com/alanwhite/legal-advice-that-ttip-is-real-and-serious-risk-to-nhs-to-be#.brxBjBDEW
See also our web page for actions you can take to stop TTIP