"We've signed trade deal after trade deal and it's never been a problem in the past. [...] Some people argue in some way [that TTIP] could damage the NHS. I think that is nonsense. [...] There's no threat, I believe, from TTIP to the National Health Service and we should just knock that on the head as an empty threat."
This is how David Cameron was responding, back in November 2014, to widespread public concern over the fate of the NHS in the trade negotiations between the EU and the US. Since then, the Tories have managed to keep a constant stance on the problem: that is, there is simply no problem at all. This display of unity from a party more accustomed to feuding over European issues would be remarkable if it was not profoundly ill-founded and disturbingly careless.
The Comprehensive Economic Trade Agreement (CETA) between the EU and Canada and the Transatlantic Trade and Investment Partnership (TTIP) would become, if ratified by the European Parliament and the 28 EU Member States, the first EU trade deals based on a 'negative list' approach for services. This approach, whereby every service not explicitly excluded from the deal is automatically included in its scope, marks a departure from the previous EU model of the 'positive list', in which what is not explicitly in is automatically out.
This new approach is defended by its own promoters as having a greater liberalising effect. It is therefore not unreasonable to wonder whether this change - which has been denounced by the Socialists and Democrats Group in the European Parliament, to which the Labour Party belongs - could have any unforeseen consequences. And according to trade unions, NGOs, lawyers and even governments across Europe, it would.
The legal language that has been used to exempt public services such as the NHS, notably in CETA, is far from being watertight. Only core functions of states, such as justice and the military, are completely carved out from the agreement with Canada. Public education and the NHS are nominally in, but are exempted through "reservations" listed in annexes. Yet these reservations paint a patchy picture, and it is not clear how conflicting interpretations over what they imply for the NHS would fare in a tribunal. The notion of "public service" is not defined. Some reservations apply only to sub-sectors, while others do not cover all modes of supply (in particular online services). In addition, most of these clauses exempt the listed services from some of the clauses of the treaty, but not all.
These important loopholes are made potentially lethal by the inclusion of an Investor-State Dispute Settlement. In effect, the combination of this blurry legal language together with ISDS provisions in TTIP would mean that a private arbitral tribunal could be entrusted with the responsibility to define whether TTIP applies or not to the NHS. But even short of such a distressing outcome, the mere fear of ISDS litigation may hinder the ability of any future UK government to renationalise the NHS.
While the outgoing Conservative-Lib Dem coalition claims that it is committed to ensure that TTIP has no impact on the NHS, they have nonetheless been resorting to untested methods and are not yet prepared to give up on ISDS. This contrasts sharply with what other governments have been doing over this matter. For instance, the German government requested a specific reservation in TTIP to explicitly mention that it reserves the right to nationalise private hospitals. The German government also requested that the Commission reopen the negotiations with Canada to drastically reform ISDS. If there was no threat in TTIP on the ability of government to organise health services as they see fit, then why would the German government feel that it needs to request such additional safeguards?
This debate has come to the fore in the European Parliament, as the International Trade Committee is currently discussing a motion in which it will lay out Parliament's conditions for supporting any TTIP deal. The motion is due for adoption in the second week of June. It will undoubtedly have a major influence on the negotiations, as the European Parliament has the power to veto every EU trade deal.
While a senior conservative German MEP, Mr Markus Ferber, tabled an amendment to this motion requesting a broader, explicit carve-out "which should apply irrespective of the nature, provider and funding of the service", British Conservative MEPs have remained inflexible in their belief that the new negative list approach does not requires a new approach to public service exemption: according to their amendment, TTIP should simply include reservations "in line with existing and recently concluded EU trade agreements".
Labour MEPs went for another approach. We have heard the public's concerns on the NHS in TTIP and acted upon it. To draft our own amendment, tabled on behalf of the 191 Members-strong Socialists and Democrats group, we held extensive consultations with public services users, providers and employees. Together we have defined a language that would guarantee a full and unambiguous exemption of all public services across Europe.
We are asking to introduce an explicit carve-out in the core text of the agreement, and not just in the annex, so that it applies to all clauses of the treaty. We are asking for this carve-out to cover all public services, regardless of how the services are organised or funded and whether they are public monopolies or operate in competition with private providers. Our amendment covers existing public services, as well as future public services. To be completely on the safe side, we have also tabled an amendment specifically on health services, reiterating that health should remain a competence of the Member States rather than the EU. And we oppose unambiguously the inclusion of any ISDS in TTIP.
Our amendment to exclude public services from TTIP has been numbered 397; the Tories' is 406. Ahead of this seminal vote in the European Parliament, we need all the public support we can muster to ensure that 397 trumps 406. Only in this way can we guarantee that we are able to rescue our NHS from Tory privatisation, invest in its future and join up services from home to hospital for a service with the time to care.
Jude Kirton-Darling is Labour MEP for North East England