The only way to stop the US-EU trade deal (euphemistically called the Transatlantic Trade and Investment Partnership, TTIP) from interfering with the freedom of an incoming Labour government to reverse NHS privatisation is by demanding that the UK government vetoes TTIP unless health services are clearly and fully exempted. At present they are not, and the government minister Lord Livingston has confirmed that the NHS will be covered by TTIP. As a result a US investor such as Blackrock or Invesco) profiting from NHS privatisation could use TTIP to sue the UK government if it could prove to a panel of 3 trade lawyers sitting in secret, one of which would be chosen by the investor, that its rights under TTIP had been breached. That could occur if, in the words of the EU’s Chief Negotiator, there was a claim”for example by expropriation without compensation, a denial of justice or manifestly arbitrary treatment”. In such cases the tribunal would be able to award unlimited compensation and there is no right of appeal.
So what is the likelihood of an NHS investor taking such action. One can only judge in the light of what has already happened. The Slovakian government had 30 million of its foreign assets seized by Achmea because it renationalised its health insurance system. The German government were sued by the Swedish company Vattenfall using investor protection to demand €3.7bn in compensation for lost profits when Merkel decided to phase out nuclear energy aftedr the Fukushima nuclear disaster. The Spanish government was hit by several investor protection cases after it changed its solar energy policy. And the Australian government was attacked by Philip Morris to claim that its new laws on cigarette packaging were tantamount to expropriation.
It’s not as though TTIP protection is needed for NHS investors. The EU’s negotiator has himself admitted that “Member states are already required to respect applicable domestic and EU law regarding for example the conditions for early termination of contracts”. In that case, why is investor protection needed at all for trade involving the US and EU?
Vince Cable, Business Secretary, has sent round a letter to MPs which says: “When the EU reaches an agreement with the US in principle, the proposed text of the agreement will therefore be sent to the 28 EU national governments which must unanimously agree to the final deal. If it does not deliver the objectives we in the EU have demanded, or it it challenges the values, standards and principles we have developed, then the European Parliament or any single European country could withhold their consent, and the agreement would fall”. The problem for the UK is that if this TTIP trade deal is completed this year, as is intended, the Tories-LibDems still have a majority in Parliament to ram it through.