Saturday 11 August 2018
Thursday 9 August 2018
Monday 30 July 2018
Wednesday 13 June 2018
National Health Service
Ending the privatisation of the National Health Service
Jeremy Corbyn has stated that he wants to ensure that the NHS is ‘completely publicly run and publicly accountable.’ The UK’s ability to make health policy is, however, increasingly constrained by EU law. For example, the Patients’ Rights Directive 2011/24/EU (codifying earlier case law of the Luxembourg-based European Court of Justice) makes detailed provision about the ability of patients to seek treatment elsewhere in the EU.
Removing the private sector from the NHS will be very difficult to reconcile with certain fundamental principles of EU law, including the freedom to provide services, EU public procurement, competition and state aid law. This is admittedly an area of considerable legal complexity, meaning that conclusions cannot be stated with complete certainty. Leaked legal advice to the Department of Health in November 2006 on this topic (when EU law was less developed) ran to 44 pages.
That legal advice suggested that private companies could have the right under EU law to sue the NHS for ‘abuse of a dominant position’ or ‘collusion’ in the single market and that GPs constitute economic ‘undertakings’, making them subject to EU competition law. It concluded that the Department of Health and the NHS will ‘continue to be exposed to the risk of investigations, possible damages actions and even, in serious cases, fines under [EU] competition law.’ It also questioned whether NHS trusts’ ‘exemption from corporation tax’ was compatible with EU law, stating that ‘the State aid rules may apply to the grant of funding and other benefits from State resources to public healthcare bodies.’
EU law constitutes a serious obstacle to the return of the NHS to public ownership. Any attempt to do so while the UK remains in the EU will be challenged in the UK and EU courts by well-funded private healthcare companies who stand to lose lucrative contracts as a result. If such challenges succeed, companies might win damages out of the NHS budget and the UK could be fined by the European Commission and Luxembourg Court for attempting to return the NHS to the public sector. This danger will only increase if the EU’s proposed Transatlantic Trade and Investment Partnership (TTIP) is agreed to.
Jeremy Corbyn has stated that he wants to ensure that the NHS is ‘completely publicly run and publicly accountable.’ The UK’s ability to make health policy is, however, increasingly constrained by EU law. For example, the Patients’ Rights Directive 2011/24/EU (codifying earlier case law of the Luxembourg-based European Court of Justice) makes detailed provision about the ability of patients to seek treatment elsewhere in the EU.
Removing the private sector from the NHS will be very difficult to reconcile with certain fundamental principles of EU law, including the freedom to provide services, EU public procurement, competition and state aid law. This is admittedly an area of considerable legal complexity, meaning that conclusions cannot be stated with complete certainty. Leaked legal advice to the Department of Health in November 2006 on this topic (when EU law was less developed) ran to 44 pages.
That legal advice suggested that private companies could have the right under EU law to sue the NHS for ‘abuse of a dominant position’ or ‘collusion’ in the single market and that GPs constitute economic ‘undertakings’, making them subject to EU competition law. It concluded that the Department of Health and the NHS will ‘continue to be exposed to the risk of investigations, possible damages actions and even, in serious cases, fines under [EU] competition law.’ It also questioned whether NHS trusts’ ‘exemption from corporation tax’ was compatible with EU law, stating that ‘the State aid rules may apply to the grant of funding and other benefits from State resources to public healthcare bodies.’
EU law constitutes a serious obstacle to the return of the NHS to public ownership. Any attempt to do so while the UK remains in the EU will be challenged in the UK and EU courts by well-funded private healthcare companies who stand to lose lucrative contracts as a result. If such challenges succeed, companies might win damages out of the NHS budget and the UK could be fined by the European Commission and Luxembourg Court for attempting to return the NHS to the public sector. This danger will only increase if the EU’s proposed Transatlantic Trade and Investment Partnership (TTIP) is agreed to.
Saturday 17 March 2018
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