Trade Deals and the NHS

Martyn Day Excerpts

Monday 16th November 2020 Westminster Hall

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

I beg to move,

That this House has considered e-petition 307339, relating to trade deals and the NHS.

It is a pleasure to serve under your chairmanship, Mr Stringer. This e-petition raises

“concerns that a trade deal between the UK Government and the US deal might not exempt our NHS, leaving it vulnerable to privatisation and in direct contradiction to promises this would not happen.”

It was launched on 11 May and closed on Remembrance Day last week, attracting just under 112,000 signatures. The UK Government responded on 23 June, stating:

“The government has been clear that protecting the UK’s right to regulate in the public interest and protecting public services, including the NHS, is of the upmost importance.”

The petition also highlights that if a deal quietly went through during the coronavirus crisis, it would be unethical, lack transparency and, if US finances were involved in our medical system, potentially create a direct health risk to us. This latter point relates to the fact that US Government statements have suggested that they intend to negotiate for US pharmaceutical companies to charge higher prices for medicines sold to the NHS as part of any UK-US free trade agreement. The cost of drugs to the NHS is already growing much faster than inflation, driving deficits across the service. Allowing big business and pharmaceutical companies to behave as they see fit would drive costs for new drugs well beyond the NHS’s ability to afford them, threatening our health, safety and national security.

In their response to the petition, the Government went on to reiterate their overall objectives, which were stated in their UK-US freed trade agreement document. They said that, along with the NHS, the price the NHS pays for drugs and the services the NHS provides would not be on the table when negotiating trade deals. Their response also said that no changes would be made to the UK’s

“intellectual property regime that would lead to increased medicines prices for the NHS.”

However, the timing of the launch of this petition is significant because, as the Government response also pointed out, the negotiating objectives for a free trade agreement between the UK and the US were published on 2 March, more than two months before the petition’s launch. Therefore, it is a reasonable assumption that, as the petition was launched after the publication of the UK-US trade deal negotiation objectives, either the petitioners thought that the Government had not been clear in their response, or they were not convinced that the price the NHS pays for drugs or the services it provides would not be on the table when negotiating trade deals.

Indeed, who can question the petitioners’ doubts, when we have seen the UK Government’s repeated refusal to guarantee excluding the NHS and other public services from future trade deals? For example, most recently, on 28 August, the hon. Member for Warrington North (Charlotte Nichols) tabled a written parliamentary question to the Secretary of State for International Trade, asked if she will make it her policy to exclude the NHS from potential future trade deals. Unfortunately, although the question was direct, the answer the hon. Member received did not give a direct commitment.

Furthermore, the UK Government’s response said that their negotiating positions had been made clear to all their trade partners, including by the Secretary of State in her written ministerial statement to Parliament on 18 May. Although the Secretary of State’s statement on the future trading relationship with the US mentioned negotiations many times, not once did it confirm that the NHS was not a part of them. I therefore struggle to see what reassurance that statement gave.

The Secretary of State’s next statement on the matter, on 30 June, entitled “Negotiations on the UK’s Future Trading Relationship with the US: Update”, stated:

“the Government remains clear on protecting the NHS”.

Those eight words would have been welcomed across the House, of course, and we all wanted to take consolation from them. Yet our hopes were again dashed less than a month later when Conservative MPs voted overwhelmingly against an amendment to the Trade Bill that would have enshrined in law the protection of our NHS and other vital public services that this petition is calling for. That is a significant inconsistency and contradicts previous promises, which is a tenet of the petition. I hope that the Minister can throw some light on why only two Conservative MPs saw the perceived duplicity in saying one thing and then acting against it, not least because neither of the Secretary of State’s subsequent statements have repeated that assurance.

The people who have signed the petition just want that assurance. They want a cast-iron guarantee—not words that can easily be rescinded—that the vital services provided by our NHS will be protected. Those vital services have come to the fore in an unprecedented way throughout this terrible covid-19 pandemic. Quite simply, the petitioners do not want our NHS to be weakened and undermined by private companies being able to trade unhindered on the back of it, which, I think—I am sure others here agree—is a perfectly reasonable position, given what has already occurred with the Trade Bill.

It is important to note at an early stage in this debate that, because the Trade Bill was able to pass without the amendment that would have protected the NHS and publicly funded health and care services in other parts of the UK from any form of control from outside the UK, one independent MP joined 336 Conservative MPs to reject protecting the provision of a comprehensive, publicly funded health service, free at the point of delivery, from being undermined or restricted by any international trade agreement. It is also worth noting that the rejected amendment would have, among other things, recognised that an appropriate authority had the right to enact policies, legislation and regulation that protect and promote health, public health, social care and public safety in health or care services. Furthermore, it would have excluded provision for any investor-state dispute settlement, a clause that provides or is related to the delivery of public services, healthcare, care or public health. I will discuss the relevance of ISDS clauses shortly.

I want to highlight another amendment proposed to the Trade Bill that would have required the UK Government to secure the approval of both Houses of Parliament and the devolved Parliaments of Scotland and Wales and the Northern Ireland Assembly before a trade agreement could be approved. Notably, 323 Conservative MPs voted down the proposal. The reality of those two amendments being rejected, which has been reported by the BBC’s Reality Check, is that Parliament does not have a statutory role in either scrutinising or voting on any future trade deals because the Government have the power to pass some aspects of trade deals without there even needing to be a vote in Parliament.

Apart from the worrying lack of scrutiny that situation presents in protecting our NHS and other public services, I believe it to be fundamentally undemocratic. Indeed, the bottom line is that, despite the UK Government’s response to the petition stating that they

“will continue to ensure that decisions on how to run public services”

will include “Devolved Administrations”, the devolved Administrations—like Parliament—will not play a statutory role in the UK Government’s international trade policy. That is undemocratic and highlights the wider implication that a trade deal could undermine the constitutional powers that devolution delivered.

It is plain for everyone to see that the NHS is a prime example of that, because health is a devolved matter. Therefore, given that the UK Government are in a position to influence devolved powers without a statutory requirement to seek consent from, or even to consult, the devolved Administrations, will the Minister today also explain the Government’s position that it is constitutionally inappropriate for devolved Administrations to have a statutory role in a reserved area, while it is not deemed constitutionally inappropriate for the UK Government to legislate in areas of devolved competence?

If the UK Government want us to believe that they will keep their promises that the NHS is not on the table in trade negotiations, they should commit to legislation that will ensure it is taken off the table. I am certain that I am not alone in finding it hard to understand why an amendment that would have ensured market access to healthcare services was restricted was roundly rejected by all but two Conservative MPs. Having discussed how trade deals could negatively impact on health services, what possible reason did the Government have for not seizing the opportunity to commit legally to ensuring that trade agreements could not be concluded if they risked altering the way our NHS services are provided?

That brings me to investor-state dispute settlements, which are a threat to public services, particularly when they are permitted speculatively or retrospectively. That was a red line when the EU negotiated TTIP—the transatlantic trade and investment partnership—with the US. The EU would never accept a trade deal with the US in which such principles were compromised, because the trade agreements that include investor-state dispute settlement clauses have the potential to undermine the procurement process and regulations within public procurement, especially within the NHS, if not restrained properly and fairly.

Indeed, the creator of the petition, Joanne Barlow, saw investor-state dispute settlements as one of the major problems of a trade deal with the US, pointing out that they could include legal challenges by any US markets deprived of access to the market or if their profits were threatened. Joanne explained that that would make it difficult to return the NHS to a fully publicly owned and run institution. In addition, Ms Barlow noted that she could not find evidence of a specific clause exempting the NHS from American investment. It would therefore be of some comfort to the petitioners if the Minister could today confirm that there will be no investor-state dispute settlement clauses in any trade deal signed by the UK.

To summarise, if this Government’s insistence that the NHS is not on the table in a trade deal with the US is indeed the case, why did they not accept the amendments that were put forward and commit their pledges in law? The petitioners want that insistence to be in legislation, to ensure that our NHS is not left vulnerable to privatisation or becomes a victim of broken promises that it will not be sold off to the highest bidder. No one needs reminding that we are still in the depths of the covid-19 pandemic, which has caused physical, mental and financial hardship to people across the UK. Given the lack of scrutiny and democracy that the Trade Bill has delivered, I urge the UK Government to respect the request of the petitioners in their negotiations with the US and not to progress a trade deal that will risk our NHS in any way.

[Graham Stringer (in the Chair)]

Within the Chamber now are five Members on the call list, with two Members not in the Chamber, so it is difficult for me to calculate a time limit. I intend to call the Front-Bench spokespeople from 5.30 pm, so we have about 45 minutes for Back-Bench speeches. If Members keep an eye on the clock and make short speeches, I will not have to impose a time limit.

--- Later in debate ---

[Martyn Day]

On behalf of the Petitions Committee, may I put on the record my gratitude to the Members from all parts of the House who took part in today’s debate? If we have learned one thing from the debate and the petition, it is that there remains a degree of public uncertainty. What the public are looking for is more than words, so I will say again: what we need is a cast-iron guarantee protecting the NHS. It is not too much to ask. If we are all in agreement, as appears to be the case from what has been said, that the NHS is not on the table, the public will be left wondering why we are not putting that into law.

Question put and agreed to.

Resolved,

That this House has considered e-petition 307339, relating to trade deals and the NHS.