NHS on the table

Despite a recent statement from the Health secretary, Jan Savage sees plenty of scope for further NHS sell-offs in trade deals

Most trade deals give extensive new powers to multinational corporations, many of which already have interests in the NHS. The privatisation of NHS clinical services has been growing, at least in the English NHS, since the notorious Health and Social Care Act (2012). One consequence, in trade terms, is that as NHS services are no longer entirely publicly provided, it’s questionable whether they are “supplied in the exercise of governmental authority”. This ambiguity makes them vulnerable to inclusion in trade deals, a vulnerability exacerbated by the trend for trade negotiations to use a ‘negative’ approach: anything not explicitly excluded from a deal will be part of it. On top of which, if NHS services become part of a trade deal including an investor protection measure, such as Investor-State Dispute Settlement, any privatisation is effectively locked in.

The government has given numerous assurances that the NHS is “not on the table” in new trade deal negotiations. What a surprise then, at least to the less cynical among us, to find that NHS services have been included in the recently signed Trade and Cooperation Agreement (TCA) between the UK and EU. It raises the question of quite what the government understands by ‘the NHS’.

The TCA excludes hospital services, ambulance services and residential health facilities, but many other sectors (for example, general medical, dental, specialist medical, nursing, physiotherapy and paramedical services) are now ‘liberalised’.

Besides ensuring that EU-based companies have market access to the NHS, the TCA contains a commitment to ‘national treatment’, meaning that investors and service suppliers, whether from the EU or UK, will be afforded the same treatment. The deal also includes provisions for ‘no local presence’. In other words, foreign-based service providers and investors will not need to maintain a subsidiary in the UK and so won’t be subject to domestic regulations, such as labour laws or tax regulations, and thus avoid paying taxes.

Trade deals can have additional, if less direct, effects on the NHS beyond opening up the market for its services. Although a trade agreement with the US seems less imminent now, negotiations under Trump indicated that the US’s powerful pharmaceutical lobby wants to end the UK’s national price control on medicines and extend patent protection on new drugs. This would lead to a massive rise in the costs of medicines in the UK, to the point that the NHS could become unsustainable. Biden’s attitude is unclear, but we know that his election campaign received considerable funding from Big Pharma.

The UK needs to negotiate a significant number of trade agreements to try to offset the economic damage of Brexit and this tends to position it as supplicant in trade negotiations. As such, there’s a risk that, in order to secure a deal, the UK will agree to reduce important standards that impact on the NHS (such as those governing food safety and workers’ rights).

There’s additionally a growing impetus for new agreements to include a chapter on digital trade. This impetus comes particularly from the big technology companies, many of which have their sights set on the NHS. This is not least because the NHS holds one of the world’s most valuable stores of data, an unprecedented resource for research and product development. This data also has huge potential value for insurance companies if, as some fear, the NHS is moving towards a healthcare system based on private health insurance. It’s recently become apparent that Big Tech is already gaining access to NHS data – for example, there have been unprecedented transfers of patients’ confidential health information (without consent) to companies such as Google and Amazon involved in the response to Covid-19.

The significance of digital trade is growing just as the NHS is undergoing a restructuring that’s heavily dependent on digital services. For example, the NHS is increasingly reliant on digitally provided consultations and digital support for decision making, risk stratification and service planning derived from vast population data sets. This digitalised NHS offers huge new opportunities for Big Tech, and already a large number of multinationals, such as McKinsey, IBM and Deloitte, are accredited to provide the NHS with an extensive range of digital support services.

If the NHS is included in trade agreements, the Big Tech companies will make use of digital trade rules to gain greater access to the NHS and more opportunities to exploit NHS data with fewer safeguards. For example, trade deal provisions are likely to include a ban on data being stored and processed in its country of origin (as is the case with the recently signed agreement with Japan). Significantly, if NHS data is transferred off shore, its treatment will be governed by the rules of the country where it is held.

It’s also fairly standard for deals to include provisions that ban the mandatory disclosure of source code (the instructions that control a computer program). Lack of access to source code can potentially have lethal consequences for patients.

There have been attempts by members of both parliamentary Houses to amend draft legislation (such as the Trade Bill) to provide legal protection for the NHS in future trade deals. So far, Conservatives – with their significant majority – have voted against all such efforts. The NHS really is “on the table”.

Jan Savage is a member of Keep Our NHS Public’s Working Group on Trade Deals

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