NHS: Future UK Trade Deals

Lord Purvis of Tweed Excerpts

Thursday 4th July 2019 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, we are grateful to the noble Lord, Lord Brooke, for bringing this debate. I agree entirely with the final points made by the noble Baroness, Lady Pitkeathley. As the son of an NHS ambulance driver who worked for the NHS for 30 years, I know intimately how it touches so many people across the country, not just its patients but its very large workforce. This has not entirely been touched on in the debate, but part of the negotiating mandate of the US is looking for greater access to the labour market of the NHS, so those who work for the NHS also have a consideration when it comes to negotiation of the trade agreements.

In some respects, the noble Lord, Lord Desai, was right to say that we need not repeat that we all consider the NHS a cherished aspect. The point made by the noble Lord, Lord Brooke, which I share entirely, is that because it is cherished it is inevitably a greater part of the political process, and therefore threats or unrealistic promises to the NHS have been used repeatedly on constitutional aspects over recent years. Now that trade has become part of the constitutional process with Brexit, it is right that we debate it in Parliament, and I am grateful to the noble Lord for giving us the opportunity to do so.

I was very pleased to see the noble Baroness, Lady Fairhead, in this debate. I very much enjoyed our processes during the Trade Bill. She is missed as a Minister with that portfolio. I mean no disrespect to the noble Earl, Lord Courtown—perhaps Hansard might record that he is nodding in agreement that she is missed in the department. I wonder if he might be able to indicate when we will have a Trade Promotion Minister for the UK. That is a very important role, and we surely cannot just wait until the Conservative leadership election is resolved for it to be filled.

On the point about the NHS being used politically, I saw that in the Scottish referendum when the SNP and the yes campaign said there were 48 hours before the vote to save the NHS in Scotland, and we have seen unrealistic promises on the side of a bus. The fact that it is being used politically means that, as the noble Baroness, Lady Fairhead, said, we have to develop further our consideration when it comes to some of the trade negotiations.

In that regard, we live in a perilous world in terms of the rules-based system. I think we have sometimes taken for granted, when we enter into agreements and treaties, that we expect all parties to adhere to them. We have seen some blurring of the lines on the Brexit consideration, where commitments that we thought we had entered into in good faith, such as financial commitments to the EU, could well be seen to be put on a reduced status, while China and the USA are moving towards a much more transactional approach. If the UK fundamentally supports the rules-based system, then any trade commitment in a treaty that we enter into also has to be resolute, consistent and robust. That is why, during our consideration of the Trade Bill, this House made amendments to the Bill to strengthen the role of Parliament when it comes to these international obligations.

Why is that necessary? It is because our single biggest trading partner outside the EU, the US, is not resolute and consistent when it comes to seeking opportunities for greater access to the NHS. We saw on a regular basis how unreliable President Trump is. Even on his state visit, he said two diametrically opposed things on two consecutive days, which of course rendered both commitments useless. One was that the NHS would be on the table, and the other was that it would not be. That is his approach; he deliberately wishes there to be uncertainty. The real tragedy is that he directs this towards his allies as much as he does to his trade adversaries, such as making up excuses on threats to US defence to put tariffs on the UK and EU aluminium and steel industry. We cannot rely on the US being as consistent as we need to be to protect our health service.

The House did the country a service by amending the Trade Bill. Clause 7(1) now has new text saying that the text of any potential agreement of a mandate has to be ratified by a resolution of both Houses. That means that there is a parliamentary guarantee that the reassurances, which have been repeated in good faith by the noble Baroness, Lady Fairhead, and Ministers, will then be tested and approved by Parliament and will then be part of an irreversible mandate for trade negotiations. That is particularly important for America because, as I referred to during the passage of the Trade Bill, I looked at the questionnaire that the Department for International Trade had put together for a future trade agreement with the US. There were no accompanying documents nor any suggested restrictions as to its scope. The NHS was not mentioned; I went online and looked up the NHS, but there was no feedback or any necessary process. We have had some Ministerial Statements but no clear position from Parliament. So the parliamentary lock is necessary, and I would be grateful if the Minister could state the Government’s position with regard to the amendments to the Trade Bill. Will the Government seek to reverse them, if and when the Bill ever sees the light of day in the other place?

That is important also because we currently have these kinds of protections through the European Parliament. My noble friend Lady Brinton gave a crystal clear outline of the way that the UK is protected under the aegis of our membership of the EU. It is also important because Congress ultimately has the lock on the US Government. When I analysed the negotiating mandate, I counted seven areas—including the provision of health services, those who work for it, those who have data from it and those who sell to it—that the US wants to open up. In addition, it wants changes to dispute resolution, as the noble Lord, Lord Lansley, indicated in a very good and measured contribution to this debate, which raises concerns about limiting our ability to reduce existing private provision. The Americans also want the agreement to cover all the UK but to restrict themselves to federal provision rather than covering US states.

It is interesting to note that the mandate is identical to the one that has been published for any future trade agreement with the EU. So if we diminish our protections while the EU is strengthening those, we will be in the invidious position that there will be a triangulating negotiating position whereby the US will see us as the weak link to the EU. We cannot afford to put ourselves in that position, and I hope there is emerging cross-party consensus for this. We have heard references not to the mixed funding provision, as the noble Lord, Lord Lansley, referred to, but to mixed public/private commissioning and funding in England for the NHS of, according to the House of Lords Library, £8.8 billion or 7.3% of its budget.

I stress in my last couple of minutes that we have had a debate almost entirely about the NHS in England, but there are major differences with the NHS in Scotland. Scotland has never had an NHS statutorily combined with that in England. It has separate founding legislation and separate processes altogether, but a trade agreement is a UK treaty. The issue of how a UK treaty will then cover health provisions reflecting a health service that has been founded and continues to be distinct from England’s means that the other element of the Trade Bill amendments—consultation of the devolved Administrations on the negotiating mandate—is of critical importance.

During the Liberal-Labour coalition in Scotland, Scotland did not develop the Labour reforms to expand the NHS internal market and remove trusts. The 2012 Act clearly does not apply to Scotland and, when it comes to data, as the noble Lord, Lord Freyberg, has said, we have a far more robust situation for the protection of NHS data in Scotland. Scottish data is a matter of pride, because it is unique in the world—consistent for 70 years and combining patient data and public health information. All these things are of critical importance: that the amendments to the Trade Bill are not reversed and that we continue to have these debates to ensure that we do not sleepwalk into a situation where we are undermining our NHS.

Ultimately, as the noble Baroness, Lady Brinton, has indicated, it comes back to the EU. There is a simple solution to all of this which is fairly straightforward: that we do not leave the European Union. We can now utilise the extremely large number of Liberal Democrat MEPs in the European Parliament to make sure that any future trade agreements with the EU also protect British interests.

--- Later in debate ---

[The Earl of Courtown]

My Lords, the noble Lord, Lord Desai, is quite right. I speak in relation to any future trade deal and how we protect the NHS. Of course, the NHS is open to private companies in various ways and they serve it in many useful matters. I was looking at where we are and the future protection that we need for the NHS in any trade deals we enter into.

As I said to the noble Lord, Lord Desai, under existing competition rules, the NHS in England does not discriminate against foreign firms wishing to bid for clinical contracts—I know that I am repeating myself but this is important—provided that they meet UK requirements and standards and are approved by UK regulators. In practice, this means that foreign companies are already eligible to bid for NHS clinical contracts in England, regardless of whether the UK has a trade deal in place with a given country. However, few do so as they cannot readily meet our requirements. Only a small amount of NHS work is carried out in the private sector. Trade deals will not force the NHS to provide preferential access to foreign companies.

The noble Lord, Lord Freyberg, mentioned data, as did the noble Lords, Lord Purvis and Lord Brooke of Alverthorpe, the noble Baroness, Lady Thornton, and my noble friend Lady Fairhead. The UK has committed to maintaining a high level of data protection standards, which are set out in the Data Protection Act 2018. The UK recognises the importance of data protection to ensure that data continues to flow uninterrupted and to enable trading partners to build trust through the transparent treatment of personal data. Patient information will never be sold for marketing or insurance purposes unless the patient has explicitly consented. The Government’s principles governing data-sharing agreements entered into by the NHS, published in draft in December 2018, require that data may be assessed by third parties only where there is an explicit aim to improve the health and care of patients in the UK and a fair share of benefits from any agreement flow back to the NHS.

The noble Baroness, Lady Thornton, also mentioned data protection. The Government take seriously the use and sharing of NHS data. I reiterate what my right honourable friend the Secretary of State for Health and Social Care stated recently:

“NHS data must always be held securely, with the appropriate and proper strong privacy and cyber-security protections”.—[Official Report, Commons, 18/6/19; col. 114.]


Both the Department for Health and Social Care and the Department for Digital, Culture, Media and Sport are aware of the sensitivity of patient data; I can confirm that both departments will work closely together to ensure that trade negotiations will not undermine the safeguards we have in place around healthcare data that enable the public to trust in what it is used for, while realising its value and ensuring the fair distribution of associated benefits.

The noble Lord, Lord Brooke, the noble Baroness, Lady Thornton, and my noble friends Lady Fairhead and Lord Lansley mentioned ISDSs, which do not and cannot force the privatisation of public services. To be absolutely clear: ISDSs will not oblige the Government to open the NHS up to further competition and overseas companies will not be able to take legal action to force us to do so. The NHS will continue to be free at the point of delivery and of use for everyone who needs it. The protections here are in law.

The noble Lord, Lord Brooke, looked at the preparations for a UK-US trade deal and asked when we will publish our objectives. We are well prepared for those negotiations; there have already been four or five initial meetings. As for domestic preparation, we held a 14-week consultation on our approach to a US trade deal, to which we had nearly 160,000 responses, which we have carefully considered; we will publish a summary of them shortly. We will publish our negotiation objectives before negotiations begin and ensure that Parliament has a chance to consider them. We are laying the groundwork for an FTA through our UK-US Trade and Investment Working Group. As I said, it has met five times and will meet again before the Summer Recess.

[Lord Purvis of Tweed]

The Minister said that he would present the conclusions of the consultation plus the objectives to inform Parliament. This House amended the Trade Bill to state that that is not sufficient. If he could address that point in his last few minutes, I would be grateful.