(10Â years, 4Â months ago)
Lords ChamberMy Lords, I congratulate the noble Baroness, Lady Jowell, on an extremely moving maiden speech. I shall listen to her future contributions with great respect.
A Transatlantic Trade and Investment Partnership BillâTTIP, as it is commonly calledâis vital for this country as the Government have only to sign this treaty and we lose all chance of amendment. The problem with the treaty is not that it is a trade treatyâI have supported every trade treaty in my political lifeâbut it binds into a trade agreement a regulatory activity which could have very profound implications for many of us. It is this aspect to which I particularly wish to draw attention.
First, I pay tribute to the UNITE union, which put the money forward to ask Michael Bowsher QC to make a fully detailed analysis of the treaty. Without this, we would still not have the clarity that is needed. I will quote from what he has said. He is the ex-chairman of the EU Law Committee of the Bar Council and I am toldâI do not know whether it is trueâthat he wishes to remain. So, this is not an issue between remainers and leavers, it is a pretty important issue about how we use treaties to avoid parliamentary scrutiny in both Houses. It does not, therefore, surprise me that a similar Motion is being moved in the other place.
The conclusions of the Bowsher report are as follows:
âFor the reasons set out in this advice, our conclusion is that TTIP poses a real and serious risk to future UKG decision-making in respect of the NHSâ,
in England. We must remember that it is rather different these days in Scotland, Wales and Northern Ireland. He has seen the most recent statements of Commissioner Malmström and remains of the opinion that:
âThe content of the draft texts are such that they do not provide a bar to suit against UKG for substantial compensationâeither domestically or within the arbitral Tribunalâ,
itself a very new procedure,
âfor regulatory changes to the NHS. We do not consider that the new âright to regulateâ changes this positionâ.
The second conclusion is that:
âThe circumstances in which a viable claim for compensation will arise, and the extent and level of that compensation, is inherently uncertain under a multi-lateral treaty agreement such as TTIP. This is evidenced by the case-law in the Tribunal, as referred to below. Furthermore, remedies under TTIP may exceed those available under domestic contract law, human rights law and European Union lawâ.
Thirdly:
âIt is the uncertainty referred to in (ii) above which we consider will have a direct âchillingâ effect on future action by UKG with respect to the NHS.
We consider that the solution to the problems which TTIP poses to the NHSâand which is likely to provide the greatest protectionâis for the NHS to be excluded from the agreement, by way of a blanket exception contained within the main text of TTIPâ.
That cannot be done by a Bill, but it could be done by an instruction to the Commissioner, who at times has sounded as if she wants some stern guidance from the member states.
âIn the event that this cannot be achieved, we consider that the NHS should be the subject of a carefully worded reservation contained within Annexes II and III of TTIPâ.
Much reference has been made in dismissing the concerns that are now beginning to be expressed from all parties and all views. In particular, it reposes on evidence given to the House of Commons Select Committee on 16 October.
âThe issue here is whether the new right to regulate affords UKG greater protection were it to seek to make major structural changes, to the detriment of foreign investors, to the NHS ⊠However, despite the new right and the statements from the Commission, as set out above, our view is that the new right is very unlikely to afford UKG any greater protection. This is essentially for three key reasons: the âright to regulateâ is not new. Its substance has, in effect, already been recognised in arbitral case-law. The new right in Article 2 therefore adds very littleâ.
Bowsher traces this whole question:
âThe Article 2 right itself is vague. Recognition of the stateâs right to regulate and to make changes in fields affecting the welfare of persons, including healthcare, is subject to the inherent uncertainty in the interpretation of that right by the proposed Tribunalâ.
Bowsher goes through various international cases and concludes:
âIt follows, therefore, that the right to regulate provided for under Article 2 is unlikely to provide additional protection to UKG. Were the matter to proceed to a dispute in the future Tribunal the real issue would remain: is the effect of UKGâs measures such that the investor should be compensated? The right to regulate does not provide a bar to compensationâ.
He asks whether an incoming Government would be able to make changes to the Health and Social Care Act 2012, which brought into force the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013, or amend the regulations themselves. He concludes that it would not be possible, saying that,
âwe are of the view that the new right to regulate does not provide sufficient protection to UKG to ensure that no future government or Parliament will have its ability to increase the public sector provision of services limitedâ.
A lot of what we are going to debate, and the questions of whether or not the EU should be our partner and whether or not we should leave, relate to the way in which over successive years but particularly the past 10 years the EU has crept into the nooks and crannies of all aspects of our lives, including now the NHS. I am not going to make the arguments that are different between the political parties about what we should do with the NHS, but I will argue to my dying day the right of a new Parliament to change the legislation of a previous Parliament under a previous Government. Forfeit that right on an issue as important to us as the National Health Service and the tolerances of society start to break down. This is the great advantage of our system of government.
I will say no more about this and will now make a more partisan but short speech about what I think isâ
No, I am not going to give way to the noble Lord. I have taken seven minutes and I have two more.
I believe that the choice this country faces now has come about because of a grotesquely mistaken decision that you can introduce a common currency without a common country. It was opposed by the Bundesbank; it was opposed by the Conservative Government under John Major. We got an opt-out but once you get 19 or 20 countries in the eurozone in an EU of 28, it has effectively become an EU-eurozone grouping, and we should stop this belief that we are protected. We will be affected, as the former Governor of the Bank of England said, if the euro crisis continues and there is a euro collapse. The Prime Minister has accepted this. He gave away in his negotiation our treaty amendment rights to protect ourselves over euro changes. He said that we would not use those in order to get euro reform. It is understandable why he said that because it is of very great interest to this country that we get euro reform and an end to this stagnant euro crisis of the past six years.
It is important also to recognise that behind the wish for a single currency is the wish for a single country. It is quite a noble objective. It has been pursued for many decades. It is summed up by federalism or the âUnited States of Europeâ. But in the development of the European Unionâand I have watched it very closely since 1962âthere will come a point that is not possible to come back from. You will be faced with a decision that you have to join and people will argue why that is. It may be 10 or 20 years down the track. The answer to this is: this is a once in a generation, once in a lifetime choice, just as it was in Scotland. You cannot have referendums repeatedly and we have to make a choice.
Can we really say to ourselves as we vote on 23 June that we are protecting this country from being sucked into a United States of Europe? I believe we cannot say that and for that reason, as well as the changes in Europe that came after the treaty of Maastricht, it is the right moment to say: go and have whatever you can get agreement onâa single state with a single currency in Europeâand good luck to you. But we in this country should not kid ourselves. This is decision time. Failing to take it will find future generations ending up in whatever looks like a European Union. I beg to move.