TTIP and the NHS: Separating fact from fiction

The Transatlantic Trade and Investment Partnership (TTIP) is a proposed agreement currently being negotiated between the European Union and United States. If agreed it will make it easier for companies and individuals across all EU member states and America to trade with one another, as well as encouraging greater bilateral investment.

I wrote generally about TTIP on LDV back in July, given that it is party policy to support the agreement. However, even at that point a concerted campaign had begun linking TTIP to the supposed privatisation of the National Health Service, with union leaders, campaigning websites and politicians calling either for TTIP to be abandoned or for special safeguards to be included.

This piece, therefore, addresses that issue in some detail.

Investor State Dispute Settlement

The “investment” part of TTIP seeks to increase the amount of foreign direct investment that flows between EU member states and the US. In other words, the amount of money that is spent establishing or expanding businesses or on other projects on which a monetary return is expected.

For a number of years, and particularly since the formation of the World Trade Organisation in 1995, free trade agreements that also seek to encourage greater investment have often included a variety of provisions to provide protection in the form of specific legal remedies to investors. The perceived danger that such provisions protect against is governments acting to somehow undermine a company’s investment in contravention of a particular term of the agreement.

ISDS is essentially a form of arbitration, a private forum where disputes arising out of agreements can be resolved.

The only remedy that the tribunal can award is financial, i.e. compensation. They cannot require countries to change policies.

The UK is currently a signatory to over 90 agreements that include ISDS provisions. Some of these are agreements entered into directly between the UK and other countries, and some are between the EU and other countries. All EU members states have signed up to about 1400 agreements containing ISDS mechanisms in total.

As Vince Cable states in his detailed response to a document prepared by anti-TTIP campaigners, the UK has never had a successful case brought against it under any of the agreements including ISDS to which it is currently a party.

The EU has negotiated numerous such agreements, and indeed has just concluded negotiations on a trade agreement with Canada (CETA) which includes ISDS provisions.

Potential impact on public services

The European Union routinely excludes public services from many of the provisions of trade and investment agreements, primarily in three ways.

First, monopoly provision of public services is protected.

Secondly, members states are entitled to favour firms within the EU over those outside and to specifically prevent foreign firms from investing.

Lastly, countries can continue to regulate public services in any way they wish. More on these exclusions here.

It is important to stress again that even without such exclusions, a company could only bring a case against a country where there is a specific breach of the agreement and even then could only seek compensation, not a reversal or change in the law.

An example of the formulation of such exclusions within agreements can be seen in one of the annexes to the draft EU-Canada agreement (pdf), which specifically states that measures “that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations.”

Both European and American officials have repeatedly stated that it is not their intention for public services to fall within the scope of TTIP’s ISDS provisions.

Karel De Gucht, the European Commissioner for Trade until November, said in an interview last year: “Public services are always exempted – there is no problem about exemption. The argument is abused in your country [the UK] for political reasons but it has no grounds.”

That assurance has been given in both Houses of Parliament by government ministers, including by the Minister of State for Trade and Investment Lord Livingston and the Health Secretary Jeremy Hunt.

And if Liberal Democrats are unwilling to take the word of Conservative ministers, here is Vince Cable:

ISDS is about protecting businesses and individuals who have made investments overseas from unfair or discriminatory treatment by the host government. It cannot force governments to open markets or privatise public services, nor will it give excessive rights to US investors.

Neither the investment protection provisions nor decisions arising from ISDS cases will affect the ability of the UK government to regulate fairly and in the public interest. Investment treaties protect foreign investors from discriminatory and unfair treatment by the host state. There are specific provisions in the Commission’s consultation which are designed to safeguard the right of governments to take measures necessary to protect the health and security of citizens, and to protect the environment.

Improvements to ISDS

One of the legitimate criticisms of ISDS in practice is that arbitration procedures are often opaque and even secretive. However, there have been improvements in many procedures, and in the nature of ISDS clauses (such as those in the EU-Canada agreement). Further, as The Economist point out, the World Trade Organisation has been leading the way in opening up arbitration:

The World Trade Organisation, which administers the rules of global trade agreements, provides a ready model. Its member governments have ultimate control over the system to settle trade disputes, including the choice of arbiters. Only states can bring complaints, so firms must first convince their governments that trade rules have been breached. The proceedings are like trials, open to public scrutiny and subject to appeal. All future bilateral and regional investment treaties should adopt this approach, and it should be introduced into existing ones as they come up for renewal.

So Liberal Democrats should absolutely be pushing the EU to include as transparent a system as possible within the ISDS provisions of TTIP.

However, the UK’s long history of agreeing to ISDS provisions together with the many guarantees of the exclusion of public services from TTIP clearly show that the hyperbole and scaremongering on the issue is almost entirely without foundation.

* Nick Thornsby is a day editor at Lib Dem Voice.

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  • Your remarks about “the only remedy is financial” is avoiding the point, and backing your neoliberal assumptions. When you consider, on recent figures that nearly three quarters of the world’s largest economic entities are corporations, is it any wonder that countries which are trying to represent their people to the best of their ability are prevented from so doing by this type of arrangement which undermines the principles of democracy. Shame on you.

  • EU negotiating texts can now be found online here:

  • Conor McGovern 8th Jan '15 - 1:13pm

    How can any agreement that allows corporations to sue governments for being un-business friendly be a good thing? The concepts of ‘free trade’ and being ‘pro-business’ are all too often used to mean corporate monopolies and being pro-big business. Liberal free markets should be about keeping trade free from all kinds of monopoly and promoting the growth of small firms and social enterprises. This agreement does nothing for a liberal free market and further damages what little there is of a democracy.

  • Tom Papworth 8th Jan '15 - 1:15pm

    @Tim13: “When you consider, on recent figures that nearly three quarters of the world’s largest economic entities are corporations” you are demonstrating that you cannot tell the difference between measures of revenue and turnover for companies and a measure of the circular flow of expenditure and income in a country.

    And I don’t think that Nick should feel ashamed for expressing his views.

  • Alex Macfie 8th Jan '15 - 1:30pm

    I find the idea that we need ISDS at all in a trade deal between two entities with robust legal systems based on the rule of law to be laughable. “The only remedy is financial”, but the only way for a country to avoid cases being brought against it would be to change its law. ISDS was originally intended to protect investments in tinpot dictatorships, not mature democracies where there are already sufficient legal channels through which anyone can challenge government policy. ISDS is the antithesis of free trade as it gives special protection to *foreign* investors by giving them a way of challenging government policy (or getting financial compensation if you like, but it amounts to much the same thing) that is not available to individuals or domestic businesses.

  • “EU negotiating texts can now be found online here”

    Finally! This “baby step” towards more openness (and accountability?) by the EU is in itself is worthy of comment.
    It is the result of sustained lobbying, that resulted in a proposal to make the negotiating texts available to all MEPs, being adopted by the European Commission back in November 2014 and subsequently ratified by the EU Parliament.

    Now the European Ombudsman’s report has been published along with their call for further transparency [See: which includes a link to the report.], it will be interesting to see what else gets put into the public domain and whether the EU will be prepared to listen to feedback, because with TIPP the devil is in the detail and only those directly involved in relevant trades will find where these devils lie.

  • Toby Fenwick 8th Jan '15 - 2:03pm

    Good piece, Nick. The ISDS transparency point is well made.

  • The weight of comments so far shows that there is a split of opinion here – well we knew that anyway, didn’t we? I still find it difficult to believe that we have a major faction in the Lib Dems arguing in favour of such agreements. It didn’t happen 30 or 40 years ago, and it shouldn’t happen now. During and afterthe Thatcher 80s, the Alliance parties, and subsequently the SLD, opposed Thatchernomics on the very real basis that it was divisive and promoted inequality. Now we have Liberal Democrats in some numbers supporting such economics, with the additional problem that this stifles democracy also.

  • Simon McGrath 8th Jan '15 - 2:16pm

    @Tim13 – Liberals have a pretty long tradition of being in favour of free trade

  • Malcolm Todd 8th Jan '15 - 2:20pm

    I remain thoroughly confused by TTIP and ISDS.
    Conor McGovern asks, rhetorically, “How can any agreement that allows corporations to sue governments for being un-business friendly be a good thing?”

    But is that a fair representation of what TTIP does? I don’t think it can possibly allow corporations to “sue” for anything so ill-defined as that.
    However, if this is not the corporatist apocalypse that is painted by the usual voices of doom, I’m not sure exactly what it is for.
    If ISDS is just about facilitating companies to sue governments for breach of contract then it’s fair enough. If governments, for example let ten-year train operating contracts that another government rips up two years later, the company concerned should be able to sue for the loss caused.
    But — don’t such rights exist already, under national laws in the US and Europe? What need for TTIP or ISDS to enforce the rule of law in countries that already live under the rule of law?

    The EU negotiating texts that Joe Otten helpfully links to include the following:
    “Investment protection provisions will encourage investment by guaranteeing that governments will treat investment between the EU and US in line with some basic principles which prohibit
    * discrimination
    * expropriation of foreign investments without compensation
    * denial of justice to foreign investors in domestic courts
    * abusive or arbitrary treatment of EU and US investors in each other’s territory”

    To which no one can object. But is there any evidence of such practices occurring between US and EU countries now or in the recent past? Or that the fear of such practices occurring in the near future is deterring investment?

  • Malcolm, if you look at the US’s playing around with the NAFTA rules with Canada (e.g. softwood), you can see the advantage in having some legal protections. Ask anyone knowledgeable about NAFTA in Canada and they will argue for a strong independent judicial component before you engage in contracts with a country ruled by their jingoistic Congress.

    Expropriation of assets without compensation in the EU seems a bit more unlikely today, but what if Hungary in 10 years decides that a branch of a Jewish-led US corporation is acting against Hungary’s interests and so expropriates it? I think the rule of law in the EU is pretty solid, but it’s far from impossible that there will be isolated incidents – it’s appropriate to have those eventualities covered in a trade law.

    Just to state the obvious as some have questioned it – liberals have always been in favour of free trade and I don’t think you can argue you have that if governments are not accountable for the laws and international agreements they’ve signed up to.

  • Peter, I’m not sure I understand your illustration, but if you are suggesting a scenario where an antisemitic Hungarian government is retaliating against a corporation because they don’t like the surname of its CEO, then Europe would have much bigger problems to take up with Hungary than a violation of trade laws.

  • Stephen Campbell 8th Jan '15 - 4:43pm

    “The Liberal Democrats exist to build and safeguard a fair, free and open society, in which we seek to balance the fundamental values of liberty, equality and community, and in which no one shall be enslaved by poverty, ignorance or conformity. We champion the freedom, dignity and well-being of individuals, we acknowledge and respect their right to freedom of conscience and their right to develop their talents to the full. We aim to disperse power, to foster diversity and to nurture creativity. We believe that the role of the state is to enable all citizens to attain these ideals, to contribute fully to their communities and to take part in the decisions which affect their lives.

    So can anyone explain how handing further power to global corporations (who, by their very nature are undemocratic) can exist with your very own constitution which aims to break up large, unaccountable concentrations of power? Or do your party’s written beliefs not really matter any more, like so many of your other past professed “beliefs”?

    Many people feel as if they have no power in the face of global corporations. And when these corporations and supposed democratic governments collude and draft up these agreements in secret, without even giving MPs a vote (let alone the electorate), people feel even further marginalised. This is exactly the kind of secretive, undemocratic agreement the Old Lib Dems would’ve opposed. But, sadly, all signs point to the Lib Dems now being a free-market fundamentalist party, as many many things you now stand “for” are at direct odds with the stated aims of your constitution.

    I’m not against free trade. But globalisation has gone too far. People need more power to stand up to these corporations who, let’s face it, really don’t care about us at all. It makes me sad to no end that there is no mainstream party, apart from the Greens, who opposes TTIP and further globalisation. When even Labour and/or Lib Dems cannot/will not challenge these massive, unaccountable concentrations of power, I guess it’s time to just give up and realise Big Business has won and really does have more power than our supposedly democratic governments.

  • My last post has unaccountably been removed, but I would say to Simon McGrath that I, too believe in free trade, certainly where people’s interests are considered in the terms. Unrestricted, unrestrained free markets lead to unbalanced outcomes for participants, and those who already have power and wealth, acquiring yet more. I think you have to distinguish between properly regulated, balanced mixed economies, of the sort that have served us and other European countries well over many years, and the sort of laissez faire, devil-take-the hindmost situation which exists at present, and which ISDS used in TTIP would only make worse.

  • Simon McGrath 8th Jan '15 - 9:52pm

    @Tim13 “I think you have to distinguish between properly regulated, balanced mixed economies, of the sort that have served us and other European countries well over many years, and the sort of laissez faire, devil-take-the hindmost situation which exists at present,”

    You mean the free markets under which hundreds of millions of people in China, India and other poor counties have become immeasurably richer ?

  • Simon McGrath would appear to believe that there is a free market in The People’s Republic of China.

    This is not the first time he has shown support for the economic policies of the Chinese Communist Party .

    Which part of the word. ‘free’ does he have trouble understanding?
    Or has something been lost in translation?
    Perhaps Simon would like to go to Tibet and set up in business in this free market?

    I assume that the reference in his last line to “poor counties” is a typo — but given his earlier statement maybe it is not.

  • Toby Fenwick 9th Jan '15 - 9:43am


    Delighted you’re in favour of free trade; TTIP with the safeguards that Nick has outlined and improved transparency in ISDS would be a major boost to trans Atlantic trade. This may well make the rich richer, but it will make the poorer richer, too. Is this a problem?

    A key tenet of liberalism for me is using the proceeds of sensible economic management to provide improved opportunities for all. Equality of opportunity, rather than the impossible to achieve equality of outcome, seems to me to be the appropriate metric.

  • Chris Lewcock 9th Jan '15 - 9:47am

    Very useful article by Nick. However, I and perhaps others would find it helpful to have some solid examples of abuses which would be stopped. Can anybody give us some? I may be misremembering that years ago the French insisted that all imported computers had to go via Poitiers or somewhere else remotely provincial for checking in a transparent attempt to protect their own nascent industry? Would that have counted?

  • Re: ISDS
    ” the World Trade Organisation has been leading the way in opening up arbitration”

    The real trouble with TTIP (and the other mega regional trade treaties initiated by the US in recent years) is that it sidelines the WTO et al, so for example with ISDS, TTIP will require the use of a process that isn’t subject to WTO standards of openness…

    This in turn leads us to the real problem at the heart of TTIP (and all the other mega trade treaties the US is backing) all the various mega regional trade deals the US has been signing – they are all outside of the WTO. Which begs the question why are we negotiating them when the internationally recognised forum for negotiating trade treaties is the WTO?

    Also we should look at TTIP in terms of what it excludes, so whilst it may enable trade between the EU and the US, it does nothing to facilite UK/EU trade with India, China and Asia; which may be concerning as currently there is no intention of permitting other countries to sign up to TTIP.

    Hence I think the LibDems need to ask why are they supporting TTIP (effectively a nation-to-nation trade agreement), when they are so against the UK possibly leaving the EU and negotiating nation-to-nation trade agreements.

    As I’ve said before the US is spending big money on lobbying the EU – not Westminster or other member governments (something those who support the UK lobbying bill should think about), yet there is little evidence that EU businesses are clamouring for TTIP; this should give policy makers pause for thought.

  • Joe Donnelly 9th Jan '15 - 12:22pm


    I think the main reason the WTO is being sidelined in TTIP negotiations is because the WTO has been, broadly speaking, stagnant for near a decade now.

    It continues to amaze me that liberals are anti-free trade but then I note there seems to be equal amazement from the anti-free trade (protectionist) camp on here that some liberals have a pro-free trade view.

    I suspect the issue here is a lack of understanding of the others position from both parties, sides are arguing at cross-purposes. As a free-trade Liberal I obviously don’t want huge supranational corporations taking authoritarian control over peoples lives in the place of democratic governments. However, I don’t believe that is what the history of free trade has led to or will lead to in future.

    I can also see how the idea of a company being able to sue a government is scary to some but it is an utterly logical and necessary part of free trade agreements, effectively in order to keep governments honest (theres a strong first mover incentive if one government is allowed to get away with protectionist policies in an otherwise free trade bloc, they will get all the export benefits for their industries whilst also moddy coddling their own industries from fair competition).

    A useful comparison is to look at how comfortable we all are with the European Court of human Rights taking our government to task over Prisoner’s votes…at the risk of angering some, that and corporations being allowed free movement of goods are two sides of the same coin.

  • Nick T Nick Thornsby 9th Jan '15 - 1:06pm

    Some interesting comments.

    It is noteworthy how almost all the arguments against TTIP could equally be levelled at the European Union. Indeed they are precisely the arguments that have been put forward, in particular by the socialist left, in opposition to the EU in its various forms over many decades.

    However, I trust most of those arguing against TTIP above would not advocate our withdrawal from the EU?

  • Nick Thornsby 9th Jan ’15 – 1:06pm

    It is unwise to compare TTIP to the EU.

    Given the revolving door between Downing Street Special Advisors and worldwide Lobbyists the situation for the UK is very different indeed.     International lobbyists in the pay of powerful corporate giants have a direct personal and financial interest in the establishment of TTIP which was not the case at the time of the establishment of the EU.
    Lynton Crosby for example currently a SpAd but in reality the man inside Downing St with a record of pushing Tobacco  —

    There are similar concerns about TPP – the Trans Pacific Partnership.   
    In this article Robert Reich makes it clear why this is not a divide between free trade and protectionism —

  • Lois Speller 9th Jan '15 - 4:44pm

    Thanks for the analysis, Nick. But politicians cannot really blame the deep suspicion concerning proposed legislation, given the actions of huge companies for example like Monsanto against farmers in poor countries (which have negotiated deals with Monsanto) who want to save seeds for use in the coming year. Think also of the stupidity of, say PFI contracts where maintenance charges are exorbitant. I do not remember much transparency in those situations, either. Our taxes have to pay for unintended consequences. If there are to be none, that’s fantastic. Can we have it in writing, and name those who will pick up any unintended tab as well?

  • Building on Lois Speller’s points we shouldn’t also be surprised about people questioning the intent of the USA:
    1. Like other bilateral mega treaty’s the US has negotiated, the TTIP negotiation process is in breach of the Vienna Convention, to which the US is a signatory.
    2. US interference in the EU: The latest example being the US blocking Europe’s official ombudsman access to Europol documents regarding surveillance and terrorist financing…

    To me the only good thing that has come out todate, is the steps being made towards more openness by the EU on this matter – lets hope this idea of more open engagement with the citizens it serves spreads…

  • Chris Davies 9th Jan '15 - 8:20pm

    I have heard such rubbish said about the TTIP negotiations and the evil designs of the EU, and Nick’s article was a fantastic rebuttal.

    Too many Liberals seems to have forgotten the free trade basis for much of our economic philosophy.

    And too many contributors son’t seem to appreciate that the concerns they voice, whether justified are not, are also being voiced by MEPs of many parties and by ministers of various governments too.

    Cecilia Malmstrom, the Trade Commissioner, is a card carrying (Swedish) Liberaland former colleague who would fit in well on the left of her party. I am more than happy to back her judgement. And yes, she too will be expressing concerns and wanting to be convinced that they are either in error or can be addressed.

  • Conor McGovern 9th Jan '15 - 9:30pm

    Nick Thornsby – “It is noteworthy how almost all the arguments against TTIP could equally be levelled at the European Union… I trust most of those arguing against TTIP above would not advocate our withdrawal from the EU?.”
    I would advocate our withdrawal, actually. Whether a clear parallel can be made remains to be seen, but there’s certainly a link between the corporatism of TTIP and the push for austerity from the EU, as well as the disregard for democracy from both. I’m a party member but I wish the Liberal Democrats would become a bit more liberal and a bit more democratic. It seems to me that the bulk of our policy on these issues comes top-down from the leadership, whereas at a grassroots level there’s much more room for healthy debate.

  • Conor McGovern 9th Jan '15 - 9:33pm

    *Would like to clarify that the link with austerity exists because it benefits the vested interests in our society. We should be fighting to break down vested interests, shouldn’t we?

  • From the post, ” the UK has never had a successful case brought against it under any of the agreements including ISDS to which it is currently a party.”

    So what precisely is the TTIP for? Why would someone want to spend a great deal of political capital on something that changes nothing? The logical inference is that there is an ulterior and undisclosed motive. It may well be that the draft text doesn’t immediately threaten the NHS for instance – that would be very risky politically – although we can’t be sure of this because of the lack of transparency. Just to remind readers the new disclosure of some relevant material by the EU (see link above) is ONLY in response to legal action which they resisted to the bitter end and not because the EU Powers That Be suddenly had a light bulb moment and converted to belief in transparency.

    Remember also that the “free trade” claim for TTIP is more to do with marketing than reality. Free trade has always had a dark side, a polite fiction used by the top political and economic power of the age to further its own interests. In Victorian times that was Britain; now it’s the USA – supported of course by elements of the Vichy left in some other countries. Hence one of the main consequences of the North American Free Trade Agreement was that it enabled US corn growers to export to Mexico at below their cost of production subsidised by the US taxpayer. The result was devastating for Mexico. Does anyone seriously believe that another “Free Trade” agreement from the same stable has better DNA?

    Also, the TTIP is not so much about furthering trade as corporate interests – and very specifically those of big companies. From memory the average cost of a case is close to $10 million so this is a system for a favoured few only. For this favoured few it creates an upper tier of law that exists outside and above national law. Is that really what LDs now support?

  • Tsar Nicolas 11th Jan '15 - 12:16am

    The free movement of capital and labour has not ultimately benefitted the average person.

    Wages are undercut by massive inflows of labour, and trade union cases for decent wage levels are weakened by the constant threat of the corporations to move their production abroad where labour costs are lower.

    It’s all very well Lib Dems banging on about free trade, but this is not 1847 and we need to protect the most vulnerable, not suck up all the time to the mega-mega-rich.

  • Well after the Pre-election promise of “No more top down reorganisations of the NHS*”, followed by the continued suppresion of the risk register detailing the risks of the bill that was pushed through by the coalition despite none of the public voting in favour of such a bill, in fact it could be argued that many of them voted against such a thing** (oh, and various agencies stating that yes the register should be made public, and they were ignored).

    *Oh, and no closures or cuts. Like Lewisham, for example, where the Health secretary had to change the Law so he could change it.
    ** I’m sure any drop in the LD approval figures around that time were entirely coincidental or the fault of Labour.

    After all of that, why on earth would people have a problem with a bill covering private sector involvement in public works that is being discussed entirely in secret and on which the general public will have no vote or say?

  • George Potter – I don’t believe that any legislation “just happens to include” a major change with important constitutional ramifications without there being some deeper purpose.

    As for the purpose of the TTIP even its supporters admit that the reduction on tariffs is negligible because they are already so low. I am not aware that it contains any credible mechanism to tackle red tape which all governments love to talk about but seem to find impossible to deliver in practice. Duplication of standards will be resolved by adopting the most corporate-friendly alternative irrespective of other concerns like the environment or local circumstances. This is deeply inimical to democracy. As the story of Chevron’s involvement in Ecuador shows one consequence is that if a country finds it necessary to change (or in Ecuador’s case simply enforce) regulations (in that case when unspoilt jungle was polluted with toxic crude oil and many people were poisoned) ISDS was invoked to protect the company’s all-important profits.

    All this for a gain estimated by CEPR (the EU’s preferred think tank using very dodgy methodology) at a measly Euros 60 / month for a family of four if averaged out – except it won’t be averaged out. Experience shows that the gains will be captured at the top of the food chain – i.e. by big multinationals which is of course why they are so keen on the idea.

  • George Potter – All very credible hogwash until you talk to people who really know about the EU-US import and export business. As GF points out, the existing trade tariffs/barriers between the EU and the US are already very low and don’t warrant the effort that TTIP involves to ease them further. If you look at the EU briefing papers etc. you will see the real focus of TTIP is the regulatory framework in which trade is conducted and hence why ISDS is such a significant component.

    To me what the supporters of TTIP have yet to do is to show some examples of how TTIP will benefit EU businesses either exporting to or setting up in the US, over and above today. Also just to throw another firework into the party, this treaty will effectively transfer more power to the EU, which can’t be done without a UK referendum, given all parties have effectively said they will offer a referendum before more powers are handed over to the EU…

  • Alex Macfie 11th Jan '15 - 8:54pm

    “There are plenty of EU countries that don’t have such an established tradition of the rule of law”

    And when this is an isse we have the The European Court of Justice and the The European Court of Human Rights. There is no justification for a special opaque tribunal system accessible only to foreign corporations.

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