Trade Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 1st October 2020 Grand Committee

[Baroness Thornton (Lab) [V]]

My Lords, I will speak in support of Amendment 51. I thank my noble friend Lord Bassam for setting the scene for this debate. The amendment inserts a new clause into the Trade Bill which protects the NHS and publicly funded health and care services from any form of control from outside the United Kingdom. Like my noble friend, I thank the BMA and the Trade Justice Movement for their briefings and the Library for an excellent brief. I also thank the noble Lords, Lord Patel and Lord Fox, and the noble Baroness, Lady Bennett, for their support.

The Government are pressing ahead with trade negotiations with the United States, the EU and elsewhere, despite there being no system of transparency or scrutiny of trade deals. Your Lordships’ House passed an amendment to the previous Trade Bill on parliamentary scrutiny. Since then, the Government have not made good on promises to give Parliament a say in new trade deals. Noble Lords should support a similar amendment to this Bill. The Trade Bill should be amended to protect the UK’s high food and animal welfare standards, and to protect the NHS and public health from provisions in trade deals.

The Covid crisis has hit global trade. It is essential that the UK’s trade policy maintains the right to regulate, protects the NHS and supports countries in the global south. We are concerned that, at present, Parliament does not have adequate powers to guide and scrutinise trade negotiations. My noble friends Lord Stevenson and Lord Lennie explained this to the Committee on Tuesday and the current process provides no legal mechanism to directly influence or permanently block trade agreements. This could mean the UK entering into trade deals that have a significant impact on public health and the domestic healthcare sector without Parliament having a meaningful role in scrutiny. As the Trade Bill is currently the only legislative vehicle for Parliament’s oversight of trade negotiations, we believe that additional scrutiny mechanisms are vital to protect the NHS and public health as the UK begins to negotiate independent free trade agreements in earnest.

As my noble friend said, this amendment seeks to ensure that our NHS is protected. It is necessary because this Government, and the one before them, have form in this area. Last year, noble Lords discussed the Healthcare (International Arrangements) Bill. It gave the Secretary of State powers, as the Constitution Committee put it, to make any healthcare deal with anyone, anywhere in the world. I am pleased to say that your Lordships’ House successfully refocused that Bill on to the issue of 27 million European health insurance card holders and their interests at the time, instead of laying the groundwork for trade deals involving our NHS. On 5 February last year, I said that

“it seems to open the door to healthcare negotiations across the rest of the world. In other words, it also lays the basis for trade and foreign affairs discussion concerning healthcare. One must ask: which countries do the Government have in mind, and for what purpose and why is the Bill addressing world issues and not limited to the European Union?”—[Official Report, 5/2/19; col. 1484.]

That was remedied by your Lordships’ House. However, it is clear that if that Bill had been agreed as originally drafted, it would have opened the way for this Government already to be in negotiations with the USA and others, and to give them open access to our NHS.

While the Government have repeatedly pledged that the NHS is “not on the table” in trade negotiations, leaked documents reveal that that is not the case, as my noble friend Lord Bassam outlined. Let us be quite safe. The Trade Bill should be amended to protect the NHS; we should have these safeguards in place, in statute. It is vital that the Bill protects the health and social care sectors by safeguarding future options for rolling back either privatisation or restructuring. We need to protect our right to restructure our health and social care services into a more collaborative model. Trade agreements must not be permitted to lock in current or higher levels of privatisation within the NHS in England, nor lead to privatisation in the devolved nations without their say so.

To do this, the Bill must ensure that the health and social care sectors are excluded from the scope of all future trade agreements. The Bill must rule out investor protection and dispute resolution mechanisms in UK trade deals to ensure that private foreign companies cannot sue the UK Government for legitimate public procurement and regulatory decisions that we decide to take with regard to our public services, including the NHS. If a future Government want to change the structure of the NHS, they must not be prevented from doing so by trade deals.

It is worth noting that an EU investment treaty recently resulted in the Slovakian Government being ordered to pay €22 million in damages to a foreign private health insurance firm after it decided to reverse the privatisation of its national sickness insurance market. Investor protection mechanisms have also been used extensively to challenge public health initiatives like tobacco plain packaging. There is a great deal at stake here. We need to include protections to ensure that NHS price control mechanisms and the UK’s current intellectual property regime are maintained.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I begin by addressing Amendment 13 in the name of the noble Lord, Lord Bassam of Brighton—ably introduced by him—to which I was pleased to attach my name. Looking at this, I cannot but think of the many wearying social media debates I engaged in about how our membership of the European Union did not stop the bringing of disastrously outsourced public services back into public hands. But that is now all history. I think all sides of the House can agree about what won the 2016 referendum. The result was a clear direction from the public on this, if not much else: take back control. That must surely apply, as a matter of priority, to public services. I look back to the 2012 Olympics, an age ago now, but it is hard to forget the G4S security fiasco, when the Army had to step in. That is what has now happened with our railways: the control that the public has long been asking for. I recall that, even in 2015, a majority of Conservative voters wanted to see our railways run for public good, not private profit. It is what should happen with the disastrously underperforming, privatised, national Covid test and trace system. The private sector can always walk away. It makes a mess and leaves the public sector to pick up the pieces. The service users suffer, the providers are loaded with debt, the public pay more and a few walk away with the profits, usually stashed in a handy tax haven.

Given the rigid ideology of the Government, I will not even ask the Minister to agree with me, but I will ask him to agree with the idea of democracy, of keeping options open, including the option to take back control of public services. It is a legal principle that one Parliament cannot bind future ones, but locking us into trade deals where a country has given its word does, presumably, have that effect under the rule of law. The amendment does not force the Government to do anything, despite the obvious public good of bringing public services back into public hands. It does prevent the closing down of democratic decision making: it keeps control. I invite the Minister to tell me why keeping our options open is a bad idea and to support Amendment 13.

The noble Baroness, Lady Thornton, has ably laid out the detail of Amendment 51, to which I was pleased to attach my name alongside those of the noble Lords, Lord Patel and Lord Fox. There is little doubt that, of all the elements of the Trade Bill, protection of the NHS has attracted the greatest attention. As many Peers have already reflected in the Committee, this is a reminder that trade Bills are of far greater public interest and concern now than they were when this House and the other place last considered them. It is a powerful path for the argument for new systems of oversight equal to those our MEPs enjoyed and the US Congress regularly utilises.

I recall taking part in a march in 2014 with the group called 999 Call for the NHS. It started in Jarrow, following in famous footsteps, although I only walked the Luton to Bedford leg. We stopped for a comfort break at an establishment along the route. A young man behind the bar asked: “Why are we suddenly so busy?” We told him: “We are marching against the privatisation of the NHS.” He said: “What? It still says NHS above the door of my doctor’s surgery.”

Of course we know that that is not true: there is significant privatisation already. To cite just one statistic, 13% of in-patient mental healthcare beds in England are privately run. In Manchester, patients have a 50:50 chance of being admitted to a privately owned hospital and a one in four chance of the bed being provided by an American-owned company. We have lost control in significant areas of the NHS. This amendment makes sure that we can take it back and not lose further control.

Finally, I will refer briefly to Amendment 75. We have yet to hear from the noble Baroness, Lady Sheehan, and I look forward to her explanation, but my eye notes with approval the amendment’s provision against the use of investor-state dispute settlement procedures—another great threat to public democratic control and decision-making and something that the Green Party has long campaigned against. Protection of access to generic affordable drugs and preventing excess windfall profits for pharmaceutical companies: I cannot see anything not to like in this amendment.

[Baroness Sheehan (LD) [V]]

My Lords, I will speak to Amendment 75 in my name. Intellectual property rights, if governed badly, can result in monopolies and unethical practices, particularly when it comes to pharmaceutical companies and medicines. In recent years, these practices have become more commonplace. Indeed, the NHS’s spiralling drugs bill led even the Health Secretary, Matt Hancock, to recognise that pharmaceutical companies are trying to, in his words, “rip off taxpayers”, and that big business must be more socially responsible. Something must be terribly wrong. In an interview in the Times, he condemns profiteering on products that rely on government-funded research and NHS patient data.

In the UK, high prices have put pressure on national health budgets and led to the rationing of treatments—for example, on breakthrough medicines for hepatitis C and cancer. There are also significant delays for cystic fibrosis patients to get access to the drug Orkambi given the unaffordable price that the pharmaceutical company Vertex was demanding. It took years of stalled negotiations between NICE and Vertex and the threat of a compulsory licence to push Vertex to lower the price. In the meantime, 200 people died. The breast cancer drug trastuzumab—I hope I said that correctly—is unavailable to the vast majority of women across the developing world because Roche holds multiple patents on the drug in South Africa, blocking biosimilars from being sold in the country until 2033. This is despite the fact that trastuzumab is included in the WHO’s essential medicines list.

These and other examples of unethical pricing regimes by pharmaceutical companies prompted me to put forward my Amendment 75. It aims to ensure that a Government’s right to use internationally agreed safeguards—such as they are in medicines—to protect public health, with a particular focus on securing access to less costly generic medicines, is not undermined or restricted by international trade agreements to which we are a party.

The amendment is rooted in the UN’s International Covenant on Economic, Social and Cultural Rights 1966, which is a binding international human rights treaty that we in the UK ratified in 1976. The ICESCR ensures the enjoyment of economic, social and cultural rights, including—and this is the part that is pertinent to the amendment—the right to the highest attainable standard of health. What Government would not aspire to the best available healthcare for their citizens? But whether they would want that or not is immaterial; if they are a party to the ICESCR then this is a statutory duty that they owe their citizens. That is the point of the amendment. It puts on the face of the Bill something that is not just nice to have but that the Government are already committed to and should be proud of: to proclaim their commitment to the highest standard of health for all their citizens.