No wonder there is alarm when we hear the NHS is on the negotiating table in UK-US talks. In the US, citizens struggle to afford their prescriptions, and medical bills are so high that they are a leading cause of bankruptcy. The US spends more per person on medicines than anywhere else in the world.
The US pharmaceutical industry is large and politically powerful, and the US uses trade deals to pressure other countries to follow its approach to regulation. Throughout this election the Conservative party has made repeated claims that “the NHS is off the negotiating table”, but has not followed up with any efforts to turn this promise into reality.
If the government is serious, there is an obvious route it should be following to protect the NHS and its users: pass laws so that UK negotiators can credibly say in the negotiating room that the NHS is off-limits.
Other governments routinely do this in trade negotiations. The rationale is straightforward: when asked to make a difficult concession, negotiators can explain that it’s a non-starter as they simply won’t get the political support at home to get the law changed and the deal approved.
This is the US strategy, as the documents made public by Jeremy Corbyn last week reveal. In the transcript of the talks, US negotiators constantly invoke the constraints imposed by Congress. Climate change is non-negotiable as they are “bound by Congress”; Congress sets “very specific rules” on investment; and limits on labour and environmental standards are “enshrined in the US legislation”.
Domestic law can be used to defend all kinds of concerns. In its trade talks, the European Union insists on sustainable development passages. In New Zealand the government requires all trade deals to recognise its legal obligations to Māori people.
It’s clear the US pharmaceutical industry has the UK in its sights. In the US, the industry is supported through far-reaching intellectual property protections that delay the entrance of cheaper generic version of drugs to the market, driving up medicine prices and boosting industry profits. Unlike the UK, there are no price controls.
So far, talks between the US and UK have been in an informal scoping phase. This sounds innocuous, but it is a vitally important stage in any trade negotiation, when countries decide the broad contours of the deal and, crucially, agree which issues are on and off the table.
The leaked documents reveal that the US has pulled climate change off the table. Yet Britain has not yet taken a strong stance on the NHS. Quite the opposite – initial discussions on pharmaceuticals have already been so extensive that as far back as July 2018, the UK negotiators declared that they were ready to “negotiate and exchange text”.
As soon as Britain leaves the EU, our negotiators will be under immense political pressure to close a deal with the US. In the negotiating room they will face a highly experienced US team with the political and economic weight of their pharmaceutical industry behind them. And UK negotiators will have no credible way to tell US negotiators that the NHS is not up for negotiation.
As things stand, parliament has no mechanism for stipulating which issues are on or off the negotiating table, and is not even guaranteed a vote on the final deal. To protect the NHS, we need laws to put it out of reach before formal negotiations begin.
• Emily Jones is associate professor in public policy at University of Oxford’s Blavatnik School of Government
