TTIP, Europe, Procurement and our NHS

Both the SHA and the Labour Party have always been clear that our healthcare should not be the subject of a market; our NHS should not be based on markets and competition.

It has always been the case that EU members had considerable freedom over how they organised their care systems.  EU Public Procurement Rules were brought into domestic law by the Public Contracts Regulations in 2006 but only a “light touch” regime was necessary for clinical services (Part B in the current framework) and this did not require every service to be subject to compulsory competitive tendering.

This exemption sat alongside the case law which basically held that transactions between two parts of a public body were outside the scope of the regulations.  Within the NHS arrangements between PCTs (NHS Commissioners) and NHS Trusts (Providers) were not legally enforceable and were outside the scope.  There were legal contracts between Primary Care Trusts and Foundation Trusts (which had a degree of autonomy) but what that actually implied in terms of the procurement regime was never tested.  To supplement the legal framework the Department produced its guidance in terms of the Principles and Rules for Cooperation and Competition which NHS bodies were supposed to follow; and this had some teeth as the Secretary of State had powers of direction over PCTs.

In 2009 some attempts were made to increase the use of private providers and increase competition – mostly emanating from the heavily pro market East of England SHA.  The then Secretary of State, one Andy Burnham, spiked these attempts by announcing the Preferred Provider approach which amended the Guidance.  This lasted only a few months as Labour lost the 2010 election.

In 2012 the hated Health & Social Care Act became law and changed everything.  The regulations which were made under S75 of the Act effectively gave away any exemption for clinical services.  In a compete reversal of the established position clinical services had to be put out to competitive tender unless there was a good reason not to – as opposed to only being put out to tender if there is a need to.  This made the EU position irrelevant.

Whilst the coalition moved to intensify competition the EU actually moved the opposite way.  In 2013 a new EU Directive on public procurement was agreed which extended the scope for member states to exempt services in health and social care (and education) from any requirement for competitive tendering – it widened the scope of the old Part B and left member states free to create their own rules.  This goes with the general position of the EU that for these services the “market” does not apply. It is not yet clear how the coalition will implement this new directive into domestic law, which has to be done by 2015.

So a Labour government elected in 2015 can make use of this widened exemption and make its own rules.  It can repeal the relevant parts of the H&SC Act and return to a system where arrangements between different parts of the NHS are outside the scope of procurement (and competition) law.  To do so will require bringing Foundation Trusts back into the family of NHS Bodies but in reality the claimed autonomy of FTs is marginal at best – and many FTs have gladly accepted bungs and bailouts!

So no problem with having a policy that makes clear commissioners can to use competition when they choose to, and when the NHS regulations around preferred provider permit. But crucially they are not compelled to do so.  This also clears the way for commissioner/provider integration and many other sensible things.  It also ensures that when existing contracts with private providers come to an end they do not have to be re-tendered; services can be brought back into the public sector.

Now we have the Transatlantic Trade and Investment Partnership with (possibly) an Investor Sate Dispute Settlement – known for short as TTIP.

It is being claimed that the TTIP will make it impossible for a future government to resist the complete privatisation of public services (like the NHS) and impossible even to bring services back into public provision once the contract period has expired.  Whilst this claim is made specific in terms of our NHS it must equally apply to all member states and all public services.

We start from the position that EU member states should be free to organise their care systems however they see fit and that the EU cannot insist that healthcare is subject to the market – as is clear from the 2013 EU Directive. The Labour party should be clear that the NHS must be explicitly exempt (why not social care and education too?) and might even go a bit further by saying the current exemptions applied to public services through case law ought to be codified more clearly before we sign up to any partnership.

If Labour campaigned to ensure any TTIP enshrined the long established recognition of the special place for public services, especially clinical services, it would have major support from across the EU as many members have even greater stakes in their public sector providers.

So TTIP has some threat associated with it.  But to do real damage all member states would have to agree to something which would change fundamentally the nature of the EU.

So the TTIP threat is real.

But as we know from the H&SC Act the election of a Tory majority government is a much bigger and more credible risk.  The LaLa experiment was always to get to a regulated market for healthcare over two terms.  Now that would definitely end the NHS as we know it.