By Heidi Chow, Global Justice Now

In a year like no other, there has been a renewed sense of appreciation for the NHS. It’s a much-needed reminder of how treasured our public healthcare system is. But for all of us that value our NHS, we need to keep fighting against the threats against it from the government’s  desperate attempts to sign trade deals across the world to justify its hard and aggressive break from the EU.

Modern trade deals are no longer just about two countries selling more goods to each other. Trade deals now cover a range of policy areas including food standards, the environment and public health. In other words, trade deals affect the type of society we live in and they are driven by an ideology that allows corporations the rights and freedom to extract and to profit – at the expense of the things we value. Crucially for the NHS, trade deals include measures that affect the prices the NHS pays for drugs as well as rules that affect the ability of private companies to operate within the NHS.

The government has repeatedly said that the NHS and the medicine prices that the NHS pays are not on the table for a trade deal with the US but I would be really wary about trusting this government’s promises. The Conservative manifesto promised to commit 0.7% of GDP to overseas aid and yet less than a year later it has broken this manifesto pledge in spectacular fashion.

And even if we could take the government’s words at face value, we know from papers leaked last year from early trade talks, that the rules which affect the NHS and drug prices have already been discussed in early negotiations. In other words, the NHS is already on the table. And then add to that, the UK’s published negotiating objectives show that there is still plenty that has been left on the table that poses serious risks to our NHS.

The government says: “The NHS is not, and never will be, for sale to the private sector” but this is blatantly not true as private companies including US healthcare firms already operate in the NHS. Following the Health and Social Care Act 2012, market-based approaches were significantly extended with a large number of contracts being awarded to private providers. In 2018/19 alone, the NHS spent £9.2billion on health services delivered by the private sector. This level of privatisation within the NHS and any expansion of this, could all be locked-in through a trade deal.

Image credit: Global Justice Now

In spite of the government’s rhetoric in its negotiating objectives, the NHS is not protected from a trade deal with the US. Here are three reasons why:

1) The government’s objectives for a US-UK trade deal do not include any commitments to properly exclude the NHS

Trade deals do often include a standard, general purpose exemption that is presented as a protection for public services. However this would only apply to the NHS if there was no other competition with other health providers. But, the NHS competes externally with private healthcare and also has private providers operating within it and so would not be exempt under these rules (nor would many other public services in the UK).

The NHS could be excluded if trade negotiators agreed to use an approach known as positive listing for services which means that only the named services would be included in a trade deal and everything else is off the table. However, the leaked trade papers showed that the US is demanding a negative listing system which works the opposite way – all services are on the table unless specifically exempted. This is a much more aggressive system as its starting point is that all services are included in the trade deal. It also relies heavily on trade negotiators being able to identify every single health service that the NHS represents to exempt it, line by line. This is a complex process, subject to mistakes and would not exclude future services that have not been developed at the time of negotiations.

A more secure way to exclude the NHS would be to apply a broad watertight carveout for public services based on the definition by the European Public Services Union which would be able to effectively exclude the NHS (and other public services) from the trade deal.

The UK negotiation objectives do not rule out negative listing, do not commit to excluding all services in the NHS and do not commit to a broad watertight carveout. Without these commitments, the NHS is effectively on the table – regardless of government rhetoric.

2) The government’s objectives for a US-UK trade deal do not provide robust protection to regulate drug prices

The US pharmaceutical lobby has long-complained about not getting high enough prices for its medicines in the UK – even though the UK drugs bill has risen 22% in the last five years and the NHS is increasingly having to reject or ration drugs because of high prices. The industry wants more and has been lobbying the US government to use US-UK trade negotiations as a way to force up drug prices.

Their demands are reflected in the US negotiation objectives with demands to tackle “government regulatory reimbursement regimes“. This means that the UK regulatory body NICE (National Institute for Health and Care Excellence) which assesses new drugs based on their cost-effectiveness for the NHS in England and other schemes that regulate drug prices – are all under threat.

These schemes are seen by the US as “discriminating” against high priced US drugs and therefore prevent full market access for US drugs. Attempts to weaken NICE, for example by watering down its pricing thresholds, could potentially lead to higher prices for all drugs and not just US drugs as NICE rules are applied to all new drugs.

The UK negotiating objectives make no commitments to reject all demands to weaken or undermine NICE. Without this commitment, the prices that the NHS pays for drugs is on the table.

3) The government’s objectives for a US-UK trade deal do not rule out discussions on all forms of monopoly protections given to new drugs

Patents provide a minimum of 20-year monopoly for new drugs where no other company can make or sell that drug during that time. The government has committed to “secure patents…that do not lead to increased medicines prices for the NHS” but this does not seem to extend to discussions on another form of monopoly which could mean increased prices for new drugs.

Data exclusivity is where a new drug’s clinical test data cannot be used by anyone else to develop a cheaper alternative for a certain period. Without access to this clinical data, it would be very difficult for another manufacturer to produce the same drug to drive down prices – even if the drug is off-patent.

In the leaked trade papers, data exclusivity was extensively discussed. With no commitment on data exclusivity, the NHS could still be facing increased drug prices which means drug pricing is effectively still on the table.

What can be done?

None of these threats have been explicitly ruled out by the government so far which means the NHS stays on the table. Government rhetoric is not enough to protect the NHS. At this point, to protect the NHS, we need to continue to oppose this trade deal.

Enshrining protections in domestic legislation would also keep the NHS safe from these types of provisions in any trade deal and we need to call for parliamentary powers of scrutiny and democratic oversight over trade negotiations. The Trade Bill is currently in the House of Lords and being debated this week. As it stands, our Parliament has no powers to scrutinise or vote on any future trade deals. This means that the government is free to offer up our NHS to US pharmaceutical and healthcare corporations on a plate – without parliamentary scrutiny. 

The real winners of a US trade deal would ultimately be the corporations that would profit from dismantling the protections over drug pricing and entrenching further privatisation in the NHS. And so the message that we need to keep repeating over and over again is that no trade deal is worth trading in our NHS for.

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