My Lords, I say first that I very much agree with everything that my noble friend Lady Noakes had to say, which means that I can save myself saying some of those things by thoroughly agreeing with her, in particular on the point she made about the disinformation about private ownership in the NHS.
When the noble Lord, Lord Patel, whom I regard as a friend, makes his points, he has to answer the following question. Is it his proposition that when the Priory Group, which was a UK company for many years, was bought by an American company, that should have been prevented by the UK Government? That is the question that he has to answer. In fact, it was not prevented by the UK Government, and indeed for decades Governments in this country have allowed foreign ownership of UK companies. If we were to stop that, it would of course have very big implications for the investor relationship that we have with other countries. However, that is not what we are proposing, and I do not think that it is what either the Official Opposition or the Liberal Democrats are proposing, so it does not really have any force as an argument.
More to the point is whether anything in our trade relationships and trade agreements that we enter into prejudices our ability to have a National Health Service free at the point of use, paid for out of general taxation and controlled by us as a public service? There is nothing in those trade agreements that allows that. In response to my noble friend Lady McIntosh, the EU International Agreements Sub-Committee—she might care to look at the evidence that has been given—is examining in detail the Government’s proposals for negotiations with the United States on a prospective free trade agreement. That expressly excludes any measures that would have any impact on the NHS or on our ability to control our pharmaceutical pricing and supply system. That is very clear; she can look at it.
All three amendments relate to rollover agreements; they do not talk about future trade agreements. Therefore, the debate about the American free trade agreement is irrelevant to these amendments. I looked at one example —the Canada-EU agreement, which is able to be rolled over with the benefit of implementation through this legislation. A description on the EU legal database of Chapter Nine of the agreement on cross-border trade in services says that
“this chapter fully upholds governments’ ability to regulate and supply services in the public interest.”
On Chapter Eighteen, which relates to state enterprises, monopolies, and enterprises granted special rights or privileges, it says, in terms:
“The rules ensure that both parties have the full freedom of choice in the way they provide public services to their citizens.”
There is a general exception which says that provision can be made
“to protect human, animal or plant life or health”.
I think that the proposers of amendments of this character have to look at what they are proposing and ask whether it changes anything. The rollover agreements comply with those requirements, and therefore the legislation is entirely robust.
I rather deprecate the idea that one proposes amendments and, before listening to the debate, says, “Well, I might bring it back on Report”. I suggest to noble Lords that they listen to the debate and, if they propose to bring back an amendment back on Report, they redesign it so that it bites on future trade agreements. At least we could then have a debate that was relevant. There is nothing in what is proposed here in relation to health or public services, in particular, that bites in any sensible way on the existing trade agreement.
We should remember that these trade agreements do not change domestic law. I say to the noble Lord, Lord Rooker, for example, that the law of the land says that you cannot introduce charges for NHS services other than by new primary legislation. That is the only way in which it can happen. Therefore, we do not need to trust the Prime Minister; it is in the law. Of course, one can change anything through primary legislation, but the Prime Minister has not done so, and I can confidently say to noble Lords that I know that he will not do so to introduce charging for NHS services. He would not get it through even if he tried.
Therefore, I do not quite get any of this. Frankly, Amendment 13 feels a bit as though the noble Lord, Lord Bassam, wants to ignore the result of the last
general election. If the election had gone another way and Jeremy Corbyn had become Prime Minister, he could have done these things and trade agreements would not have stopped him. It is the election that stopped him, and not trying to legislate to stop trade agreements being irrelevant.
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I want to mention one other thing, because it is important to mention it here. In Amendment 75, the noble Baroness, Lady Sheehan, talks about access to medicines and so on. It feels a bit like we did not legislate in the Health Service Medical Supplies (Costs) Act 2017—but we did, and only three years ago. That Act gives our Government the absolute right to control the price of medicines, both patented and generic. If any noble Lord wants the Government to do something about it, the law already allows them to. They might say that the Government will not do it, or that they are not acting quickly or strongly enough, but the legislation provides for it. There is nothing in trade agreements that stops us doing it.
My final point is on the investor-state dispute settlement mechanism. We will come back to this again in a later group, but in that group I want to talk about a different issue. My noble friend Lord Caithness talked about Philip Morris. I declare an interest. In 2010, I sat with the then Australian Health Minister and, in a conversation at the OECD, we agreed that one of the things that I would do in the United Kingdom was initiate a consultation into the plain packaging of cigarettes. As it turned out, the fact that we had initiated such a consultation in the United Kingdom was relevant in helping the Australians to win their case, because it was clear that it was not simply them doing it—other countries were pursuing this in a similar fashion for public health reasons.
Banning investor-state dispute cases of that kind is not sufficient. As it happens, Philip Morris lost its case due to an abuse of process, because it set up a company in Hong Kong purely for the purpose of utilising the Hong Kong-Australia treaty. However, tobacco companies managed to secure the support of five Governments, in Ukraine, Cuba, Indonesia, the Dominican Republic and Honduras, to take a case to the WTO. They lost that case, so we do not really need to ban investor-state dispute settlements—although for the purposes of these rollover agreements, the European Union has effectively not accepted ISDS, and there is a separate investor court process. Even so—even when we trade on WTO terms—we have to be aware that we could be challenged. But Australia won that case and, in the appellate judgment in June this year, brought by Honduras and the Dominican Republic, they won again. They did so because there is an exception for public health measures in the WTO structure. I am not sure in all this where these amendments are trying to take us. I think we have the protections and the government commitments that we require.