Image: Professor Martin McKee
There have been many surreal moments since the Prime Minister announced a referendum on the UK’s membership of the European Union.
One of the most memorable was Nigel Farage introducing the mystery guest at the Grassroots Out launch rally. An audience who had travelled long distances to hear bastions of the Conservative right like Peter Bone and Bill Cash were more than a little bit surprised to be introduced to George Galloway, Farage’s new best friend.
The Commons Treasury select committee was equally bemused when Boris Johnson appeared before it to explain his views on the EU, leading the committee chair Andrew Tyrie to interject “All very interesting Boris, except none of it is really true, is it?”
Most other leading Brexit supporters have never previously shown any great affection for, nor understanding of, health and publicly funded services, either.
Not the billionaires backing Brexit who stand to make a fortune if the UK votes to leave. Nor one of the most vocal Brexiteers, Daniel Hannan MEP, who famously described the NHS on Fox News as a 60 year “mistake”.
The Brexiteers are claiming that the NHS is collapsing under the weight of EU migrants coming to the UK to give birth. But most NHS supporters are well aware that if you meet someone from another EU country in a hospital they are more likely to be looking after you than standing in your way in the queue for treatment.
There is one issue, however, that has achieved traction among many who would never normally agree with the Brexit supporters on anything else.
This is the Transatlantic Trade and Investment Partnership, or TTIP. Many people including myself have been extremely worried about this agreement currently being negotiated to liberalise trade between the EU and the USA.
Firstly, because we have grave reservations about the introduction of market forces into core public services such as health and education. The problems were set out by the economics Nobel laureate Ken Arrow as far back as 1963. Experience since then has amply confirmed his then largely theoretical concerns, showing how easy it is for large corporations to abuse their dominant position. Andrew Lansley’s disastrous experiment in ‘reforming’ the NHS in 2012 has provided a wealth of evidence on the problems involved. The system is so confusing that few if any really understand it. The transaction costs are enormous. At a time when the NHS is facing unprecedented challenges, it has been nigh impossible to work out who is really in charge.
Another concern with TTIP was the Investor State Dispute Settlement (ISDS) process which allows powerful corporations to challenge national governments where they believe that their interests have been compromised.
The list of examples is long and exceedingly worrying. Where such arrangements are in force elsewhere, corporations have challenged environmental legislation, restrictions and dangerous products, and public health measures.
They’ve ended up with bizarre cases – such as Ukraine challenging Australia’s implementation of standardised tobacco packaging.
Crucially, these processes sidestep the normal judicial process. We showed how, when tobacco corporations challenge governments in national or international courts, they almost invariably lose. You can see why these corporations hate transparency and normal judicial processes, and want something rather different, like ISDS.
And thirdly, we have been concerned about the lack of transparency in this process. As is normal in international trade negotiations, each side has tried to keep its position secret, so as not to give the other side an undue advantage. However, given the potentially enormous importance of the TTIP, this is attracted widespread criticism.
Unsurprisingly, the wider health community has voiced great concern about these issues.
And the European Commission has listened.
“A key part of the mandate member states have given me is to protect public services and maintain consumer protection. The European Commission would have no interest in a deal that undermined those things. And it would be anathema to citizens and to governments across the political spectrum, meaning it would never pass.” Celia Malmström, EU Trade Commissioner
To some extent, it had to. Contrary to what those supporting Brexit continually claim, it is democratically accountable, both to the elected national governments through the Council of Ministers and to the directly elected members of the European Parliament.
The arguments for protecting health, education, social care and other public services are overwhelming and have attracted widespread support. The governments of the member states have made it clear, in their directives to the Commission, that these should be protected. The president of the European Parliament, Martin Schulz, has made it equally clear that any agreement which fails to provide this protection will not be approved. Given that both the Council of Ministers and the Parliament have to agree to any deal, it is now quite clear that, without sufficient protections, it isn’t going anywhere.
So what is the Commission calling for in its latest negotiations? Only a year ago, all we could have done was speculate. No more. Its negotiating position is now publicly available, on its website. Its twitter account gives a blow by blow account of the negotiations. It makes clear that the negotiating team has taken on board our criticisms. And if there is any doubt about how these applied to the NHS, this was set out in terms in a letter sent by the Commission to the Commons Health Select Committee.
Governments have an absolute right to maintain a monopoly in the provision of public services such as health. They can provide subsidies as required and implement a wide range of measures to ensure that services are provided equitably and effectively.
The letter confirmed the position of the Commission, as quoted by Simon Stevens, Chief Executive of the NHS in England, that “any ISDS provisions in TTIP could have no impact on the U.K.’s sovereign right to make changes to the NHS.” The Commission has also addressed the concern that opening the NHS to the marketplace could be a one-way street, clarifying that a future government could actually reverse any pro-market changes made.
As is apparent since the passage of the 2012 Health and Social Care Act, which was entirely a piece of domestic legislation, not even extending to Scotland, Wales or Northern Ireland, there is a serious risk to our NHS from the market – but it is one arising from domestic politics rather than any agreements being made in Brussels.
If governments choose to open up these services to the market, then they must play by the rules of the market. However there is no reason for them to do so. This is entirely a political choice.
The Commission has also thought hard about the ISDS process. It is clear that a completely new mechanism is involved. It will involve trained judges, selected at random, just as in a normal court. The process will be taken right out of the hands of arbitrators with links to corporations. The proceedings will be in public and all the documentation will be available on the Internet.
To repeat, I and many others have been extremely critical of TTIP. It did present a serious risk to the NHS. But the position now adopted by the European Commission does much to mitigate this risk, offering protection to the NHS, if a UK government wants to use them. And this isn’t the first time that arguments for public health services have won. In the mid-2000s it looked like publicly funded health care might be included in the Directive on Services in the Internal Market. There was widespread opposition, to which I and others contributed vocally, just as there has been now with the TTIP, and that proposal was dropped, with health care explicitly excluded from the Directive.
Yet I am not naive. There are still powerful forces seeking to privatise the NHS, a process made much easier by the 2012 Health and Social Care Act. Maybe I can take some reassurance from the observation that some of the largest corporations, often with the worst performance records, are withdrawing from the NHS, moving on to other areas where they can make greater profits and whether users are less likely to complain, such as prisons and Australian migrant detention centres. But the threat remains.
For now, the question is how best to address this threat. Should we listen to the siren voices of those calling for Brexit, casting our judgement aside to rely on them having made a Damascene conversion to public health services, having previously been among their strongest critics? Do we know whether UKIP MP William Legge, otherwise known as the 10th Earl of Dartmouth, has changed his mind on opening the health and education sectors to American corporations within TTIP?
Or do we rely on those, such as the almost 200 health professionals who signed a letter to the Times supporting continued EU membership, young and old, across all professions, and from all the main political parties and none, but united in their commitment to the NHS? Who highlighted how we need to stay in the EU to protect our shared progress on health services, public health and medical innovation?
Readers, on the 23rd of June, you must decide. I know what I believe.
Postscript: After this article was written Lord David Owen, who provided great support when we were all campaigning against the last government's NHS reforms, took a different view. He referred to a legal opinion commissioned by Unite that was written before the EU's negotiating position became available. As argued above, the EU's position now addresses the main criticisms of TTIP, which Lord Owen and I previously agreed about. I and many others see this as a major victory for those of us who had these concerns. Furthermore I note that Unite now supports continued EU membership.
Agree or disagree? Check out the other side of the debate, here.