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NHS: Future UK Trade Deals - Motion to Take Note

Part of the debate – in the House of Lords at 12:15 pm on 4th July 2019.

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Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats 12:15 pm, 4th July 2019

I too congratulate the noble Lord, Lord Brooke, on securing this important debate, which follows hot on the heels of the progress of what started as the Healthcare (International Arrangements) Bill, which I will refer to later.

I thought that it might be worth going back to look at the very beginning of the NHS—its embryo stage rather than its birth. One hundred years ago, Lloyd George created the Ministry of Health, following on from a decade of Liberal reforms, including the National Insurance Act, setting up the contributions for the old age pension, and the Housing Act to build homes fit for heroes, with sanitary conditions to improve public health. The embryo of the NHS developed very fast. In 1942, William Beveridge, another notable Liberal, published his famous report. He was very clear that it was about more than just providing a health service. He said:

“Now, when the war is abolishing landmarks of every kind, is the opportunity for using experience in a clear field. A revolutionary moment in the world’s history is a time for revolutions, not for patching ... Social insurance fully developed may provide income security; it is an attack upon Want. But Want is one only of five giants on the road of reconstruction and in some ways the easiest to attack. The others are Disease, Ignorance, Squalor and Idleness”.

The NHS sits as the absolute foundation stone in tackling those five things.

The noble Baroness, Lady Fairhead, said that the NHS today is free at the point of need or the point of use. That phrase was used very much as the NHS was born immediately after the Second World War, but what does it actually mean? Unfortunately, I think that as this debate progresses, we will see that it means different things to different people.

I am aware, as many others are, of many services that are currently contracted out from what would have been seen as the original NHS contract between government and hospitals. GPs’ surgeries are, after all, privately run, but they operate to a very clear mandate from the NHS. One can have specialist medication delivered directly to one’s home, and many of the non-clinical services are now contracted out and are all part of the NHS that we are proud of.

However, Brexit has demonstrated that one of the lesser-known pillars of protecting our NHS is also at risk. Not many people know that we are protected by the EU directive on public health procurement. This is an issue that I have raised repeatedly in your Lordships’ House. I just want to note that it directly governs the way in which all public bodies, not just the NHS, can purchase goods, services and works, and it seeks to guarantee equal access to and fair competition in public contracts in EU markets. There is no need to publish procurement advertisements cross-border, which, as Ministers have repeatedly said in Parliament, is a key tool in preventing mass privatisation of the NHS.

If we proceed with Brexit—noble Lords will know that I hope we do not, but we must prepare for the event that we do—and should we leave with no deal, leaving the single market and the customs union, the NHS will lose its biggest but most invisible protector: this directive, which governs all public sector procurements in all member states. It defines those processes and standards and ensures fair competition for contracts; frankly, it also gives us protection against creeping privatisation.

To protect NHS institutions particularly, but not only, from American corporations looking to buy in after Brexit, we must write this EU directive into UK law. The NHS, as we all know, is completely dependent on this. It is in danger. If we do not transfer the directive into UK law, there is nothing to stop the lowest bid for any service always winning wherever it might originate from and without any standard of care.

While there was understandable concern about the TTIP discussions, this EU directive provided a guarantee that US companies could not come in and cherry pick our NHS. On 18 November 2014, the noble Lord, Lord Livingston of Parkhead, answered my Question in your Lordship’s House by quoting an EU Commissioner, saying that,

“Commissioner de Gucht has been very clear:

‘Public services are always exempted... The argument is abused in your country for political reasons’

That is pretty clear. The US has also made it entirely clear. Its chief negotiator said that it was not seeking for public services to be incorporated. No one on either side is seeking to have the NHS treated in a different way ... trade agreements to date have always protected public services”.—[Official Report, 18/11/14; col. 374.]

During a debate in March 2018 in which the noble Lord, Lord Brooke, and myself spoke, the noble Lord, Lord O’Shaughnessy, responded to our questions on procurement. He said:

“I can tell them that we have implemented out obligations under the EU directive. The Government are absolutely committed that the NHS is, and always will be, a public service, free at the point of need. It is not for sale to the private sector, whether overseas or here. That will be in our gift”— that is, the Government’s—

“and we will not put that on the table for trade partners, whatever they say they want”.—[Official Report, 29/3/18; col. 947.]

In contrast to the confidence of the noble Baroness, Lady Fairhead, over protection of the NHS, alarm bells have been ringing for me ever since then, not least after President Trump and the US ambassador to the UK both commented that the NHS should be “on the table”, despite the fact that President Trump was asked to modify his words.

I am grateful that the BMA has repeatedly called for the NHS to be excluded from any future trade agreements. Its unequivocal message for the next Conservative Party leader and future Prime Minister is very simple: profit should never take priority over the protection of the health service and the health of citizens. It is a shame that neither candidate has chosen to respond.

Clinicians, managers and directors across the health and social care sector know that remaining in the European single market and maintaining open-border arrangements with free movement of healthcare and medical staff is vital. But if we leave, the most important things we must do are to re-enact in full the EU directive on public procurement and insist that the NHS and social care bodies which tender for contracts use it very clearly and carefully. It is vital that the NHS should be exempt from rules on competition that could lock in competitive procurement of publicly funded healthcare services across the UK—the devolved nations and England.

I agree with the BMA, which is calling for investor protection and dispute resolution mechanisms to be excluded from any future agreement with the United States or other trading partners. This will protect the ability of all four nations of the UK to regulate in the interests of public health.

So why am I so concerned? When we read the first published draft of the Healthcare (International Arrangements) Bill, alarm bells started ringing for some of us. I will quote from it:

“The Secretary of State may by regulations make provision … to give effect to a healthcare agreement”— and,

“make provision about set-off arrangements between countries or territories”.

It said that a “healthcare agreement”,

“means an agreement made between the government of the United Kingdom and either the government of a country or territory outside the United Kingdom or an international organisation, concerning either or both of the following”— which would include,

“healthcare provided in the United Kingdom”.

Because of an alliance between the noble Baronesses, Lady Thornton and Lady Jolly, the noble Lord, Lord Marks, and others in both our teams and, increasingly during the progress of the Bill, the support of learned judges and learned counsel, we were able to show that the Bill was not re-enacting the reciprocal healthcare arrangements between the EU and the UK but providing the basic foundation for completely free trade agreements. We managed to persuade the Government not to proceed in that way, so I am pleased to say that the Act’s final title is Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, but I think we saw the true colour of the Government.

I am particularly concerned that Liam Fox stated that,

“the government of the day of whatever party … would determine exactly what the regulations were around the NHS”.

That answer is just not good enough. It is really important that we provide protection for our NHS. It cannot and must not be put up for sale, in part or in whole. Parts of it cannot be sacrificed. We have a duty to ensure that we put in all the protections that we need for any trade agreements that are negotiated.

I ask the Minister, as I have asked before, and I would be grateful for a clear answer: will the Government re-enact the EU directive on public procurement in full in UK law? Everybody, including previous government Ministers, agrees that this is the fundamental protection for the NHS under any future trade agreement.