Background
The Trade and Cooperation Agreement (TCA) between the UK and the EU was announced on 24th December, with the aim of provisionally applying the deal before the end of the Brexit transition period on 31st December. The European (Future Relationship) Bill, published by our government on 29th December, allowed the UK to apply and ratify the Agreement. The Bill’s purpose was
- to create significant ‘Henry VIII’ powers for government Ministers to make regulations without parliamentary scrutiny in order to implement the TCA in UK domestic law;
- to amend existing UK law to ensure it complies with the as necessary obligations created by the Agreement, and
- allow ratification of the Agreement by exempting it from the usual process for parliamentary scrutiny of such deals, as set out in the Constitutional and Governance Act (2010).
The Bill was enacted on 30th December, only six days after a treaty was confirmed, allowing insufficient time for proper parliamentary scrutiny and with no deal at all as the only alternative. The proceedings, described as ‘farcical’, have exposed the long-standing shortcomings of Parliament’s system for scrutinising trade deals.
The TCA is broad in scope but this briefing deals only with how it will affect the NHS.
Terminology
In a trade deal, trade in services involve two kinds of commitment that partners to the agreement make to each other:
- to give partners access to their domestic services market (‘market access’) and
- to treat partners’ service providers no less favourably than their own domestic providers (‘national treatment’).
However, these general commitments do not always apply. Each party to the deal can set ‘reservations’, i.e. conditions or exemptions to certain commitments.
The TCA is based on a negative list approach. This means that parties to the Agreement do not specifically list the sectors that they are making commitments on. Any sectors they want to exclude from the deal have to be listed in an Annexe as ‘reservations’. Anything not listed is ‘on the table’ by default.
With the TCA, the EU and the UK are committed to granting each other ‘market access’ and ‘national treatment’ for service providers. It will now be harder to maintain public ownership and to regulate in the public interest.
Relevant sectors
a) Public procurement
Public procurement (how public sector organisations buy goods and services) will now be governed for the most part by the World Trade Organisation’ s Government Procurement Agreement (GPA). The GPA is simpler than EU regulations, and provides more ‘flexibility’ in how public bodies conduct procurement.
UNISON has voiced concern that a government Green Paper on a new public procurement regime shows an intention to widen access and increase the privatisation of UK public services.
b) Public services and the NHS
Despite UK government assurances to the contrary, a wide range of healthcare and public services are now ‘on the table’: there is no high level ‘carve out’ of the NHS, health or care services. There are though a number of reservations for health and social care. These include hospital services, ambulance services and residential health facilities other than hospitals.
What are not reserved are medical and dental services, general medical services, specialised medical services, other human health services, deliveries and related services, nursing services, physiotherapy services and paramedical services. These are now open to liberalisation (i.e. open to investment, trade, market access etc.).
The deal does not provide for mutual recognition of healthcare professionals’ qualifications, which could mean increased staff shortages in the NHS. There is a framework however that may allow mutual recognition in future.
The Agreement reaffirms existing protections of Intellectual Property Rights, but does not go further in shortening the time before new drugs become accessible to patients.
c) Data
The UK government is seeking to replace the EU’s General Data Protection Regulation (GDPR) with an ‘adequacy’ agreement on data. (‘Adequacy’ is the EU’s assessment of whether a trading partner’s data protection regime is adequate.) The EU still has to assess the UK’s plans. Meanwhile there is a temporary arrangement that currently allows the flow of data from the EU to the UK. The Agreement contains provisions to ban ‘data localisation’ (requirements that data, such as NHS data, must be stored and processed in the UK) and so weaken privacy protections, although provisions may be reassessed. The treaty also bans the mandatory disclosure of source code (the fundamental component of a computer programme), but not of algorithms in that source code.
d) Workers’ rights
The EU-UK deal is likely to weaken protections for UK workers’ rights. The most vulnerable employment rights are collective consultations in the workplace; TUPE; paid annual leave; a 48 hour week; holiday pay; the rights of atypical workers (such as agency staff); and the compensation cap in discrimination claims.
e) Investment protection
Investor-State Dispute Settlement (ISDS) is not included in the Agreement, although some type of investor protection measure may be introduced at some point following a review.
f) Right to regulate
The Agreement reaffirms both parties’ right to regulate in order to achieve legitimate policy objectives, such as the protection of public health; social services; safety; the environment, including climate change; public morals; social or consumer protection; privacy and data protection or the promotion and protection of cultural diversity.
With thanks to Unison and the Trade Justice Movement for information. (January 2021)