There is a very real risk that third-party multinationals will seek to sue states who try to make privatised services public again
In the run up to the General Election, every few weeks Left Foot Forward will take a look back at the coalition’s record on a specific policy area. This week we focus on the NHS, and each day we will feature a piece that looks back at the impact of coalition policies on the health service over the past five years. The following is from Nick Crook, UNISON’s head of international relations
Negotiators from the European Union and the United States met this week in Brussels for the eighth round of negotiations on TTIP, the Transatlantic Trade and Investment Partnership.
Eighteen months ago very few people had heard of TTIP, and even fewer understood the huge implications of what is potentially the biggest ever trade agreement between two of the world’s largest trading blocs. Of course that was largely down to the secrecy behind the negotiations; it took the European Commission nearly two years to make their negotiating mandate from the Council public, and only as a result of constant criticism from civil society and politicians in the European and national parliaments.
The Commission only has itself to blame therefore, for losing the battle for public opinion on TTIP so far. Although the Commission and many national governments are seeking to reverse the tide of negative stories about TTIP, they will struggle to do so until they really come clean about the scope of what is up for negotiation.
In recent months the Commission and the UK government have sought to reassure us that TTIP does not pose a threat to the NHS or other public services. Indeed they tell us health is not even up for discussion; and yet it is.
In previous trade agreements the EU has excluded public services from trade liberalisation at the outset by using the so-called ‘positive list’. This time they have only used that mechanism for cultural services. Everything else is potentially open to market liberalisation, including health, unless a specific exclusion is included in an annex.
As with all EU negotiations, nothing is agreed until everything is agreed and we will have to wait until the final and, by that stage, non-amendable agreement is published to see the scope of any exclusion for the NHS or other public services. The Commission and Council could have avoided this from the outset by explicitly excluding all public services. They chose not to do so and cannot therefore complain when European citizens raise genuine concerns.
We do know from the EU-Canada agreement, CETA, which is public, that there are exclusions for health and public services when it comes to market access. However, there is no exclusion from the investment chapter, which like TTIP includes the highly controversial Investor State Dispute Settlement mechanism (ISDS). Given the already very high levels of direct investment on either side of the Atlantic there is no case for the inclusion of ISDS in either agreement.
The Commission has completely failed to make a case for ISDS apart from arguing that investors want it. Well of course they do! ISDS allows them to bypass established domestic courts and laws, and challenge state actions in private arbitration tribunals that operate with no established system of jurisprudence or right of appeal.
And that is where the real threat to the NHS and public services in both CETA and TTIP lies. The combination of ISDS and the definitions of direct and indirect expropriation in the CETA investment chapter mean that there is a very real risk that third-country multinationals will seek to sue states who decide to bring liberalised services back in-house as Labour has said it will do with NHS services privatised under the Health and Social Care Act, and as has already happened when Slovakia replaced a system of private health insurance with public insurance.
That is why UNISON will continue to campaign against TTIP and call on MPs and MEPs to reject CETA when it comes up for ratification later this year. The only way we can really ensure there is no threat to the NHS from these agreements is to exclude public services from the agreements as a whole and to remove ISDS.
Nick Crook is head of international relations at UNISON. Follow him on Twitter
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