Every British MP will tomorrow be emailed new legal guidance by a leading QC that says there is a a “real and serious risk” to the NHS from the Transatlantic Trade and Investment Partnership (TTIP), a scheme to cut tariffs and regulatory barriers between the EU and US.
BuzzFeed News has learned that the guidance, prepared for Unite the Union by Michael Bowsher QC, former chair of the Bar Council’s EU law committee, calls into question the worth of a pledge by Cecilia Malmström, the EU’s trade commissioner.
Malmström had promised to rework the deal so that US health corporations couldn’t avoid regulation to take advantage of the NHS by making legal challenges if contracts were cancelled.
But Bowsher’s analysis is that the new clauses could not be relied on to protect the UK government from cases brought under TTIP if it wanted to cancel or take back NHS contracts: “Our view is that the new right [to regulate] is very unlikely to afford [the UK government] any greater protection.”
The guidance also gives a stark warning that TTIP might even have a freezing effect on government policy, with lawmakers fearful of policy changes in case large corporations mount legal challenges.
It says this is because it could allow the corporations with links to NHS contracts to challenge the government in secretive arbitration courts, where they are eligible for higher levels of compensation than they would have under existing domestic and European law. It concludes that “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”.
In 2014, the contractor Fujitsu quietly won compensation believed to be worth around £700 million in one of these courts after being dropped from a scheme to create electronic patient records by the Department for Health.
The government claims TTIP could add £10 billion to the UK economy in the form of the removal of EU import tariffs and extra exports to the US due to reduced regulation and has dismissed the analysis as “irresponsible and false”. Trade negotiators on TTIP are set to meet in Brussels this week for the latest round of talks.
The existence of the legal guidance was first reported this morning. Unite toldThe Guardian that Cabinet Office minister Francis Maude had admitted to having legal advice regarding TTIP’s potential impact on the NHS but that a freedom of information request to see it had been blocked due to “legal professional privilege”.
The paper also reported that Bowsher had advised TTIP meant that “privatisation of elements of the NHS could be made irreversible for future governments”, and that Unite would reveal it had been holding talks with the government over the deal.
A Department for Business, Innovation and Skills spokesperson told BuzzFeed News: “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.
“It will remain up to the UK Government and devolved administrations to decide how to run publicly funded health services, including whether private companies should be involved. Where a service has previously been provided by a private provider, this is not irreversible.”