Concerns raised over impact of digital trade deals on healthcare

UK tech superpower ambition presents both challenges and opportunities FCC event hears

25th March 2021 about a 7 minute read
“The bottom line is we need greater transparency and public accountability… We need to keep this debate going. Data is far too important to simply treat as an international commodity”. Lord Tim Clement-Jones
“Why are we allowing all the governance and rules to be sitting in a trade deal and an e-commerce chapter? It really is unbelievable.” Alison Roche, Unison

The Government’s ambition for ‘global Britain’ to be a science and tech superpower by 2030 presents as many challenges as it does opportunities, an online event organised by Future Care Capital heard this week.

A number of digital trade deals have been signed or are under negotiation, but concerns have been raised over whether sufficient safeguards are in place.

The event, Global Britain: The Implications for Health and Care, was chaired by Dr Peter Bloomfield, Head of Policy & Research at Future Care Capital. It brought together a panel of experts including:

  • Lord Tim Clement-Jones CBE, Liberal Democrat peer and Co-Chair of the All Party Parliamentary Group on AI
  • Allison Roche, Policy Officer at UNISON
  • Sue Daley, Associate Director Technology & Innovation, Tech UK
  • Ruth Bergan, Senior Advisor, Trade Justice Movement
“We need to develop greater international collaboration and trade agreements help us to do that. They bring people together to talk about how we get the rules of the road right.” Sue Daley, Tech UK
“What’s really worrying about the speed at which these (trade) chapters are being developed is that it’s far outpacing the debate on how we want to shape the digital space”. Ruth Bergan, Trade Justice Movement

Lord Tim Clement-Jones told the webinar that when a body such as AXrEM (the UK trade association for medical supply companies) says failure to manage patient data effectively is a barrier to the adoption of AI, we should all take notice.

He said one of the government’s 10 new tech priorities was championing free and fair digital trade.

“It says we will ensure our trade deals include cutting edge digital provisions as we did with the recent Japan deal.

“We will forge new digital partnerships, but the question is what guarantee do we have that our health data will be used in a proper fashion, assigned its true value and used for the benefit of UK health care?”

He said peers had raised these issues in the House of Lords AI report, pointing out that data was a unique source of value for the nation.

“We recommended a framework that would deal with that but we got a pretty bland response from the government.

“We then had a torrent of government documents… with lots of fine principles. But the big questions is: What’s the oversight? What’s the guarantee of compliance?

“If you just have fine sounding principles without any compliance mechanism then this is not going to create public trust.”

“One of the best ideas around the Trade Bill came from Future Care Capital when they talked about establishing a Sovereign Health Fund”. Lord Tim Clement-Jones

Lord Clement-Jones said the there had been similar concerns with the Medicines Bill. Provisons were put in place to ensure consent if patient information was to be disclosed.

But there were inadequate provisions over the exploitation internationally of health data which he said could be worth an estimated £10billion a year.

“We have very little promise around transparency in the use of NHS data especially in terms of those contracts with the major big tech companies.

“There’s an ideological championing of the free flow of data which I think is worrying”.

Allison Roche, Policy Officer at UNISON, said it was important to ensure issues around trade deals and the World Trade Organisations e-commerce discussions were on people’s radar.

“The use of data, AI and automated decision making – it’s clearly not reversible. It’s here for good. Yet there’s very little governance or regulation.

“We have information going into people’s personal records… the increased use of AI in medical devices such as pacemakers and in radiography. And now robots are being thrown into the mix.

“Then we have the growth in private and public platforms for example test and trace. And we have data being used for life sciences and vaccines and other research purposes. It’s absolutely huge”.

She said that digital was embedded in the health sector. “Data is driving all this and the desire to control and own and manipulate that data is really important.

“There are huge challenges. This data is moving quicker than the law and regulation. But the government’s approach to regulation seems quite fragmented.”

She added that the reality was there is a monopoly of big tech companies dominating the scene. And many of these companies do not want to disclose their ‘trade secrets’.

“Their algorithms are protected by copyright and intellectual property laws. The burden of proof for proving any breaches is on civil society because the law is not backing us at the moment. So all of that has to be changed”.

“Because these big tech companies have been used to having no regulation they are quite happy for everything to sit in a trade deal. Trade deals are secret. There is no text published and they are, I’m sorry to say, commercially biased.” Allison Roche

Ms Roche warned there was an imbalance between consumer rights and civil society rights in the trade deals.

“Parliament doesn’t have to be consulted. Civil society and trade unions don’t have a voice. Big tech is happy to continue down this road and that’s what we have to push back on”.

Sue Daley, Associate Director Technology & Innovation, Tech UK, said the idea of ‘global Britain’ presented both challenges and opportunities.

The question was how the UK can be a pioneer and grow the industry in a responsible and ethical way.

Digital trade agreements made it possible to work together to address issues like digital identity and cyber security.

“The way forward has to be an international focus. But how do we work together to share ideas and get this right, not just in the UK but around the world?

“We need to think about the opportunities not just for industry but for people and for society.

“And we need to address some challenges in the health and care system, for example interoperability of data and data quality. These are some really big meaty issues”.

"The key issue is to look at the legislation that’s already in place and ask ‘what is the gap?' " Sue Daley

“The Government’s plan is for the UK to be a science and tech superpower. To do that we need to develop greater international collaboration and trade agreements help us to do that.

“Trade agreements bring people together to talk about how we get the rules of the road right.”

She said the challenge was getting the data flow right in a way that ensured the highest level of privacy and data protection.

Ruth Bergan, Senior Advisor, Trade Justice Movement told the event that the first thing to say was that trade deals were not vehicles to promote human rights or environmental objectives.

Their purpose was very clearly to increase and liberalise trade.

“That doesn’t mean that discussion on human rights and the environment doesn’t happen around the margins.

“But with a trade deal the enforceable bits are around increased trade. The unenforceable bits refer to workers rights, human rights and the environment. Trade deals are about increasing trade”.

She said countries signed up partly because they wanted to increase GDP.

“Trade agreements do cover services and, depending on the country, they are very likely to cover health services. So they can have profound impact on healthcare and the way we design our services.

“They impact areas such as patents for medicines, medical qualifications, health service workforce issues… so they are really significant”.

She added that trade agreements covered any service in any sector except those deemed to be “services supplied in the exercise of government authority.”

“The government will probably point to this phrase and say ‘the NHS is not on the table’… but services that are performed on a commercial basis are excluded.

“Now I challenge you to find in the UK a health service that’s not provided either on a commercial basis (you pay for your optician and your dentistry) or where there isn’t also a private company providing the same service”.

Ms Bergan said it was hard in the UK to find a service that would be exempted.

“Once you have that commitment in a trade deal you are effectively locking in the level of privatisation that you already have… you will be penalised if you try to renationalise or unpick any privatisation”. Ruth Bergan

Another way trade can impact health was through a trade deal investment protection clause.

These allow private foreign investors to challenge a government directly if a policy has a direct impact on their profits.

“So you have Phillip Morris suing Australia and Uruguay for introducing plain packaging for their cigarettes.

And the US company Cargill is suing Mexico for introducing a tax on high fructose corn syrup”.

She added that digital chapters in trade agreements were a relatively new innovation. The big tech companies were lobbying for them as it meant they could influence the shape of the trade deal.

“The way we regulate is being locked down in trade agreements. Governments are handing over the ability to require disclosure of algorithms and source code – the building blocks of healthcare equipment and databases.

“The direction of travel at the moment risks locking in model of deregulation before we have a chance to think about questions like ‘Who owns this data that everyone is generating?’ and ‘How are we going to ensure equitable outcomes and equitable benefits from that data?’”

You can watch the one-hour webinar, Global Britain: The Implications for Healthcare, here