Tag Archives: Investor-state dispute settlement (ISDS)

What do those leaked documents actually say about our NHS?

The following article was produced and published on Tues 3rd by the campaign group We Own It, which is committed to the renationalisation of public services in the UK.

On 27th November 2019, Jeremy Corbyn revealed unredacted documents from secret talks about a US-UK trade deal following Brexit.

If you’re confused or uncertain about what the 451 pages of leaked US-UK trade documents mean, and whether it actually shows that our NHS is ‘on the table’, this summary from the Keep Our NHS Public sub-group on trade deals, with the help of a briefing from Global Justice Now* should help.

Whose papers have been leaked?

The papers report on a series of meetings held by the UK-US Trade and Investment Working Group (TIWG).  These talks, essentially scoping exercises, appear to represent the first stage of ‘conversations’ about a deal. They took place between July 2017 and November 2018.

Participants included staff from the UK’s Department for International Trade, the British Embassy in Washington, and the United States Trade Representative (USTR) (the body responsible for developing international trade and overseeing trade negotiations).

What progress has been made?

The talks are described as well advanced in some areas (such as services, intellectual property and agriculture). In some sectors, such as pharmaceuticals, they have reached a point that might usually be expected after one year of formal negations.

What do the leaked papers show?

  1. The United States expects a trade deal very much on its own terms.
  1. The US dominates the talks at every level, dictating what is discussed, what they want included and how the deal should be done.
  2. The US sees there is “all to play for in a No Deal situation” and is using the talks to push the UK government towards as hard a Brexit as possible.
  3. Preliminary economic modelling suggests the trade deal may offer little value to UK consumers, or to UK businesses in terms of market access. Gains are greater for the US.
  4. A UK-US deal of this nature would be good for Trump’s re-election.
  1. The US wants a ‘total market access’ approach, which puts the NHS and other public services at risk

There are two ways of defining what is included in a trade deal. In a positive list approach, the types of goods and services for inclusion must be specifically listed (or ‘put on the table’). In a negative list approach, everything is on the table, unless explicitly named and excluded.

The US wants a form of negative listing, making total access to UK markets the baseline for trade negotiations. The UK appears open to this approach.

As the NHS has already been turned into a market, NHS services are vulnerable to being included in the deal, unless they are clearly and comprehensively excluded. In previous EU trade negotiations using a negative list approach, the UK government chose not to adopt this option. In the US-UK discussions, there is no evidence so far that the UK wants to ring-fence the NHS and keep it out of trade discussions.

The US wants to lock in both existing market access plus any future opening up of markets, so that access cannot be reversed. This would prevent the re-nationalisation of the NHS.

Documents from meetings in March/April 2018 show that the US side has been asking about the NHS in talks specifically focusing on ‘state owned enterprises’. In comments for the eyes of the UK side only, there is reference to a query by the US team about health insurance. This query was seen by the UK side as ‘likely a fishing expedition to check the tone of our response”, but it was also noted that the UK team will in future need to go into more detail about the functioning of the NHS and, for example, whether it is engaged in commercial activities (p.53).

  1. Medicine prices for the NHS are already ‘on the table’  

The reports show that discussions on medicine prices are relatively advanced. There have also been meetings with lobbyists for the pharmaceutical industry. Preliminary negotiations have reached a point at which the two sides are now ready to begin agreeing the text for the final deal.

Proposals include the strengthening of intellectual property over new drugs and extending monopoly protection for big pharmaceutical companies (particularly for new ‘biologic’ medicines used to treat cancers and autoimmune diseases). This could mean massive increases in the cost of medicines for the NHS, delays in patients’ access to cheaper alternatives, and bigger profits for drug companies.

  1. The papers point to the inclusion of Investor-State Dispute Settlement (ISDS)

ISDS is an investment protection measure that allows foreign corporations to sue governments in corporate courts, rather than through a state’s legal system. The US wants to include a form of ISDS in a US/UK trade deal that is particularly pro-business and has a high success rate for claimants.

ISDS would allow US corporations to sue the UK government on a wide range of issues if they consider government actions have reduced company profits (or the profits companies had anticipated receiving). The compensation awarded by these ad hoc tribunals can be massive and even the threat of such a case can cast a chill on policy making, including on policies aimed at improving the public’s health.

  1. Reduction in standards and regulations

The US wants the UK to adopt US standards and regulations to enable US corporations to move easily into the UK market: this requires the UK to break with the EU’s (higher) standards.

In addition, the US wants the UK to stop using the ‘precautionary approach’ (where products need to be proved safe before released on the market) and to adopt the US system (where products are assumed to be safe until proved otherwise).

The US has a preference for voluntary standards, created by corporations rather than government regulation.  In the US this has allowed practices such as industrial–scale farming where conditions are atrocious and animals are pumped with steroids, other hormones and antibiotics. The US is against warning labels on tobacco and alcohol and wants less nutritional labelling on food.

A shift to less rigorous assessments of safety, voluntary regulation, and a lack of public information are bound to have an impact on the public’s health.

  1. The US has banned any mention of climate change in a US-UK trade deal. 

The UK inquired about including reference to climate change in a future agreement but was told that Congress has banned the USTR from mentioning greenhouse gas emissions. This is despite the way trade deals can increase trade in dirty fossil fuels or block climate action.

What does this mean for the NHS?

  1. Because of the requirement for ‘negative listing’ (as in 2 above), NHS services are at risk of being included by default in a US-UK trade deal.
  2. If the NHS were unambiguously a publicly provided service it might be safe. However,  the legal complexity around how a public service is currently defined, and how it might be redefined in a deal with the US, makes it vulnerable to inclusion in a US-UK trade deal.
  3. If the US succeeds in its aim to ‘lock in’ existing market access and have guaranteed access to future services (as in 2 above), any attempt to return the NHS to real public ownership would appear to be impossible.
  4. Returning the NHS to public ownership would be challenged via the ISDS’s corporate courts (as in 4 above), because re-nationalising the NHS would interfere with health corporations’ profits.
  5. The price we pay for medicine is already on the table, and talks are at an advanced stage (as described in 3 above). The NHS can’t afford to pay US prices for drugs.
  6. If the US deal means lower UK standards and deregulation (as in 5 above), this will affect the NHS, its users and staff in a range of ways. It could mean, for example, poorer environmental, food and safety standards impacting on wider public health; reduced employment rights for staff; and loss of patient privacy due to a US right of access to personal medical information and research data.

* “Leaked papers from the US-UK trade talks: A guide to the revelations.” Global Justice Now, November 2019

https://www.globaljustice.org.uk/sites/default/files/files/news_article/gjn_leakedusuktradedocsbriefing_nov2019.pdf

Additional:

The notes below are taken from an email received today from We Own It.

Will your next MP be committed to defending our NHS?

With less than a week to go, and the polls tightening, it’s more important than ever to find out which election candidates are on the side of the NHS. We want the new Parliament to be full of MPs who are willing to stand up for our NHS against Trump’s trade deal.

Check here to see if the candidate you’re voting for has signed the pledge to protect the NHS from trade deals by ending privatisation.

If they haven’t:

Ask them to sign it now.

In this election, candidates can choose to stand up for our NHS, or bow down to Donald Trump. Which side are your candidates on? If they haven’t signed this pledge, they’re not on the side of the NHS.

Over 500 candidates have signed so far, from all over the country.

  • Labour candidates are currently in the lead, closely followed by Greens.
  • The SNP and Plaid are backing the pledge, and a fair few of their candidates have signed.
  • The Lib Dem leadership has not endorse our pledge, but despite this, a few Lib Dem candidates have signed up.
  • Conservatives have been instructed not to sign at all – but two have broken ranks!

Are you voting for someone who has signed the pledge?

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this is the EU — so take it or leave it… #2. TTIP and other “free trade” deals

Irish MEP Luke “Ming” Flanagan visits the TTIP reading room where he can read texts that have already been agreed on – in the language of the EU this constitutes “democratic oversight”. He is not allowed a camera or tape recorder:

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The agreement we have secured means that the EU Member States will fully support the European Commission’s recent trade strategy. Central to this strategy are ambitious and comprehensive trade deals that will substantially boost the UK’s growth and economic security. […]

Concluding all the trade deals already underway could ultimately be worth in total more than £20 billion a year to UK GDP. These include the UK’s top trade priority: an agreement between the EU and the US (the Transatlantic Trade and Investment Partnership), which alone could add £10 billion to UK GDP. 1

Taken from “The Best Of Both Worlds”; the government policy document that explains Cameron’s negotiated deal with the EU. The Transatlantic Trade and Investment Partnership (TTIP) features centrally in the new arrangements.

The first point to note in the extract reprinted above is that a claim that TTIP “will substantially boost the UK’s growth and economic security” is certainly bogus. Long-term economic projections of any kind are notoriously unreliable under the best of circumstances, but here we have a far from impartial assessment. Indeed, as its title “The Best of Both Worlds” makes blatant, this is a sales pitch.

Embedded below is an excellent short film produced by wikileaks about the American-led “free trade agreements” collectively known as the 3Ts: namely Trans-Pacific Partnership (TPP), Transatlantic Trade and Investment Partnership (TTIP) and the lesser known Trade in Services Agreement (TISA). Quite literally everyone should watch this film:

In reality, these treaties have little to nothing to do with facilitating trade in any ordinary sense, but enable a greater transfer of power away from democratic government and into the hands of the unelected corporatocracy. Operating at their heart is a parallel judicial system known as the Investor-state dispute settlement (ISDS), which is conducted on the basis of secret tribunals open solely to the transnational corporations (our governments do not have access).

This legal arrangement permits companies to sue states for anything that adversely affects their profits. Thus, under the rules of TTIP (the precise details of which remain as a closely guarded secret), national governments will lose jurisdiction to a kangaroo court that sits in judgement of all impediments to profit-making. Paring back regulations under the guise of “free trade” will thereby rig the market still more in the favour of a few special interests.

Such a thoroughgoing dismantlement of regulations has tremendous ramifications both for individuals and for our communities. It threatens the environment, our education system, healthcare (the NHS is especially endangered) and even privacy. In short, if ratified the 3Ts will impact the lives of all of those who live in signatory nations (and that includes nearly all developed countries). The EU is committed to signing two of these treaties – TTIP and also TISA.

Here are a few extracts from a detailed analysis of TTIP published by Der Spiegel International and entitled “Corporation Carte Blanche: Will US-EU Trade Become Too Free?”:

Lori Wallach had but 10 minutes to speak when she stepped up to podium inside Room 405 at George Washington University, located not too far away from the White House. Her audience was made up of delegates currently negotiating the trans-Atlantic free trade agreement between the United States and the European Union.

They had already spent hours listening to presentations by every possible lobbying group — duty bound to hear myriad opinions. But when Wallach, a trade expert for the consumer protection group Public Citizen, took the stage, people suddenly started paying attention. The 49-year-old Harvard lawyer, after all, is a key figure in international trade debates.

“The planned deal will transfer power from elected governments and civil society to private corporations,” she said, warning that the project presents a threat of entirely new dimensions. [bold emphasis added]

The same article, which was published more than two years ago, then outlines how TTIP will impact our societies:

After the third round of negotiations, an unusually broad alliance of anti-globalization groups, NGOs, environmental and consumer protection groups, civil rights groups and organized labor is joining forces to campaign against TTIP.

These critics have numerous concerns about the treaty – including their collective fear that the convergence of standards will destroy important gains made over the years in health and nutrition policy, environmental protection and employee rights. They argue the treaty will make it easier for corporations to turn profits at the public’s expense in areas like water supply, health or education. It would also clear the path for controversial technologies like fracking or for undesired food products like growth hormone-treated meat to make their way to Europe. Broadly worded copyrights would also restrict access to culture, education and science. They also believe it could open the door to comprehensive surveillance. 2

Click here to read the full article in Der Spiegel.

More recently [Feb 22nd], the Guardian published an article exposing how “TTIP deal poses ‘real and serious risk’ to NHS, says leading QC”:

The controversial transatlantic trade deal set to be agreed this year would mean that privatisation of elements of the NHS could be made irreversible for future governments wanting to restore services to public hands, according to a new legal analysis.

The legal advice was prepared by one of the UK’s leading QCs on European law for the Unite trade union, which will reveal on Monday that it has been holding talks with the government about the Transatlantic Trade and Investment Partnership (TTIP) deal between Europe and the US.

Unite believes the government has been keeping Britain in the dark over the impact of the deal and argues the NHS should be excluded from the trade deal. The government dismissed the idea that TTIP poses a threat as “irresponsible and false”.

TTIP would give investors new legal rights, which extend beyond both UK and EU law as well as NHS contracts, according to Michael Bowsher QC, a former chair of the Bar Council’s EU law committee who was tasked by Unite to prepare the advice.

Bowsher said he had concluded that the deal poses “a real and serious risk” to future UK government decision making regarding the NHS.

“We consider that the solution to the problems TTIP poses to the NHS – and which is likely to provide the greatest protection – is for the NHS to be excluded from the agreement by way of a blanket exception contained within the main text of TTIP,” Bowsher said. 3

Click here to read the full article published in the Guardian.

I disagree, however. Ad hoc exclusions are entirely insufficient. TTIP is so dreadful that we should fight to stop it clean in its tracks.

Voting to remain, gives assent to Cameron’s negotiated EU agreement as summarised in the “The Best Of Both Worlds” policy document and everything contained within it. Since TTIP is central to the agreement, a vote to remain will then be reinterpreted as a signal of our tacit approval to go ahead with TTIP.

If, on the other hand, we vote to leave the EU, then this automatically keeps Britain out of TTIP and potentially nips TTIP in the bud altogether. There are, of course, other “trade deals” in the pipeline, and we need to be committed to blocking them all. First and foremost though, the target must be TTIP.

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Additional:

On May 3rd, Press TV invited Paul Craig Roberts, the former Assistant Secretary of US Treasury, to debate with Sean O’Grady, the Finance Editor of The Independent over TTIP and the other “free trade agreements”:

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1 From paragraph 2.62–3 on p. 23–24 of “The Best Of Both Worlds: the United Kingdom’s special status in a reformed European Union”, published by UK government in February 2016 to “satisf[y] the duty to provide information set out in section 6 of the European Union Referendum Act 2015”.

2 From an article entitled “Corporation Carte Blanche: Will US-EU Trade Become Too Free?” written by Michaela Schiessi, published in Der Spiegel on January 23, 2014. http://www.spiegel.de/international/business/criticism-grows-over-investor-protections-in-transatlantic-trade-deal-a-945107.html

3 From an article entitled “TTIP deal poses ‘real and serious risk’ to NHS, says leading QC” written by Ben Quinn, published in the Guardian on February 22, 2016. http://www.theguardian.com/business/2016/feb/22/ttip-deal-real-serious-risk-nhs-leading-qc

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