By Sarah Walpole and Jan Savage, Keep Our NHS Public

Image credit: Sarah Walpole

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Universal healthcare (UHC) in the UK is dependent on Parliamentary scrutiny, and most pertinently right now, Parliamentary scrutiny of international trade deals. Drawing on a Parliamentary briefing from Keep Our NHS Public, this blog explains the link, and why it’s particularly important that we lobby MPs to vote for Parliamentary scrutiny in order to protect our NHS for the years to come.

Universal health care is healthcare that everyone can access without experiencing significant financial hardship. The principles on which the UK’s NHS is founded support the objective of UHC. The NHS, a publicly provided, publicly funded healthcare system, is an unparalleled model to enable provision of healthcare that is accessible to all and free at the point of access, with costs being shared through taxes. 

Ideally, Parliamentary scrutiny, in relation to trade agreements, is a process through which our elected representatives in Parliament are allowed to view the negotiating objectives for trade deals and be involved in development and review of trade deals. In particular, Parliament could be involved at the start of negotiations when objectives are being set, and before deals are signed, which would be the final chance to change the wording of deals and hence the commitments that the UK is entering into.

Image credit: Keep our NHS public

The NHS being included in international trade deals risks that international and foreign companies would be able to bid to provide NHS services. Such companies may not understand the local setting or adhere to the same standards as UK companies, and will be  primarily interested in profits for shareholders as opposed to patient need. Any privatisation that occurs by contracting out to international companies will be very hard to reverse, because companies can use the international corporate courts and international trade law to invoke mechanisms such as ISDS (the Investor state dispute settlement (unfortunately not the International Sheep Dog Society)) to sue a government for putting up barriers to trade. 

Despite the UK government repeatedly saying that the NHS is not on the table in trade deals, keeping the NHS and UK health services out of trade deals cannot be assured unless the text of trade deals explicitly excludes the NHS (because international trade law works on a system of negative listing – if it’s not in the list of things that are excluded, it’s included).  And the NHS these days is hard to define – for example, digital services are increasingly part and parcel of health care provision. Parliamentary scrutiny of trade deals could protect the UK health service, but the current Parliamentary process is deeply flawed.

Image credit: Sarah Walpole

There are two amendments to the Trade Bill that aim to improve matters: one is to introduce specific legislation to protect the NHS and the other is to improve Parliamentary scrutiny. MPs voted against these amendments when the Trade Bill was last debated in Parliament, so it is essential that this time, when the Trade Bill has its final reading in the Commons, that  MPs hear loud and clear calls for trade bills to be scrutinised and the NHS to be protected. See the link below for more information about writing to MPs.

The Minister for International Trade has recently announced new arrangements for the scrutiny and transparency of trade deals and described these as “a best in class approach”. But KONP’s analysis shows that this is not the case.

Comparing the UK process with those of other democracies and looking at a recent UK-Japan trade deal as a case study shows that, despite new arrangements, Parliament remains largely toothless.

Decisions concerning trade agreements fall under the royal prerogative: the government is under no obligation to inform Parliament about proposed deals or negotiations. Historically, MPs have had no right to approve negotiating objectives, read impact assessments or view the texts of agreements. Once a treaty is signed, no Parliamentary debate or vote is required before ratification. The Constitutional Reform and Governance Act (CRaG) (2010) allows Parliament to ratify a deal, but there isn’t a clear procedure for this and CRaG doesn’t ensure comprehensive scrutiny. Parliament can only request a debate prior to ratification, which may only be granted if parliamentary time can be found: even then, only 21 days are allowed for scrutiny or debate. Furthermore, Parliamentarians have been given scant information on which to base debate, and no way to conclusive vote against a controversial deal. In fact, there has been no debate prior to ratification of trade agreements and no vote since at least 2010.

Critics of the procedure are told that, instead of any role in shaping or approving trade deals, Parliament has the power to block a trade agreement by voting against any primary domestic legislation required to enact it. But, not all trade deals require such legislation and besides, international treaties like trade deals compel changes in domestic law, and not vice versa.

New arrangements have been announced by the Minister for International Trade but do not change things fundamentally. These arrangements require publication of objectives and a scoping assessment at the start of negotiations and refer to the need for widespread consultation. The nature of consultation, however, remains limited. For example, expert advisory groups including representatives from trades unions and civil society have been replaced by Trade Advisory Groups representing only business interests.

Scrutiny rests largely with the International Trade Committee (ITC) and the International Agreements Sub-Committee (IASC), which so far have held consultations on prospective deals with Japan and the US. Notably, there is no requirement that these committees produce independent reports on an agreement following consultations, and it is unclear whether or how their findings can influence government thinking, or trade negotiations.

The ratification process for the UK-Japan deal has highlighted a range of issues. It was only after the agreement was fully legally scrubbed and signed that it was sent to the ITC on a confidential basis so that the Committee could “fully analyse it”. As the UK-Japan deal was immediately laid before Parliament after signing (starting CRaG’s ratification process), both the ITC and IASC were placed in the invidious position of announcing consultations within the 21 sitting day period allowed for Parliamentary debate. As the ITC’s Chair admitted, the Committee was unable to conduct a comprehensive analysis of the text within this time frame and would rely on the evidence of stakeholders instead. This does not suggest a rigorous approach to scrutiny or the collection of evidence for Parliament’s consideration.

In summary

Trade deals still fall under the royal prerogative, denying the UK Parliament a meaningful role and a decisive vote. The current process remains pitiful compared with the role of parliaments in other democracies. As a member of the EU, the UK depended on the other EU member states to scrutinise and if necessary vote against a controversial deal. The UK’s departure from the European Union (EU) means that there is now a greater need than ever for Parliament to have the power to scrutinise and decisively vote on trade deals. Apart from other considerations, the future of our NHS could depend on it.

The Trade Bill will complete its journey through the House of Lords on 7th December. It will then go back to MPs, who will have chance to vote on whether the Trade Bill is amended to ensure Parliamentary scrutiny of future trade deals and to keep the NHS and UK health services out of trade deals. Whether these amendments are passed will depend on whether we, health professionals and members of the public who care about UHC in the UK, hold MPs to account. 

Please write to your MP and ask a friend or family member with a Conservative MP (Conservative MPs are the ones who have been blocking these amendments) to write to their MP. You could include KONP’s recommendations, which you see below.

Useful resources

List of MPs who may particularly influence the outcome of Trade Deal debate – please write to one of these if you can, or encourage a friend or family member to: https://docs.google.com/spreadsheets/d/1MHUvWIBdMiDC15zJWvhpxdYymXZsS8oFXyt_Y57NSDM/edit

Easy link to write to your MP: https://weownit.org.uk/act-now/tell-your-mp-stop-trade-deals-being-signed-secret

Trade Bill petition: https://weownit.org.uk/lords-NHS-trade-bill-petition

Nick Deardon’s insightful and at times shocking book about international trade deals – download the pdf or donate to receive a physical copy by post (mine is full of highlights of some of the key statistics): https://tradesecrets.globaljustice.org.uk/

Hansard society blog on why Parliamentary scrutiny of Trade deals is key: https://www.hansardsociety.org.uk/blog/why-mps-should-back-the-djanogly-amendments-to-the-trade-bill-on 

Keep Our NHS Public (KONP) commentary on Trade deals: https://keepournhspublic.com/campaigns/trade-agreements/trade-deals-post-brexit-nhs/

Full parliamentary briefings on data and scrutiny in relation to trade deals by Keep Our NHS Public’s Jan Savage: available by email from KONP or email me.

Keep Our NHS Public’s Recommendations

  • Members of Parliament should have a meaningful role, including a vote, in the creation of the original mandate for a trade deal.
  • Parliament should be given stronger powers to scrutinise, debate and shape a trade agreement, both during negotiations and pre-ratification. Reform should include
    • giving MPs the right to see negotiating papers, initial impact assessments and consultation reports at the earliest opportunity,
    • the right to see and vote on the agreed text of a deal before signature, and
    • the right for Parliament to have a decisive vote on ratification.
  • MPs should support amendments to relevant draft legislation that aim to prevent adverse consequences of trade deals for public health and public services like the NHS.
  • Information and analysis of a proposed deal, whether from committees charged with scrutiny or other sources (such as civil society groups), should be available to MPs well in advance of any debate.
  • The explanatory memorandum provided prior to any final Parliamentary debate should be appropriately detailed, and incorporate analysis from a range of experts, not just from commerce.
  • The Constitutional Reform and Governance Act (2010) should be reformed to ensure, prior to any decision on ratification, that there is a debate – and greater time for debate – once a treaty has been formally laid before Parliament.
  • Ultimately, there needs to be constitutional reform that ends the UK government’s ability to negotiate trade deals under the royal prerogative with adequate Parliamentary scrutiny.

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