Juridification, new constitutionalism and market reforms to the English NHS

Abstract

Market reforms to the English National Health Service within the neo-liberal era have diverted money away from patient needs to market bureaucracies and the coffers of private companies and undermine cross subsidy and risk pooling within the National Health Service. Consequently, governments within the neo-liberal era have sought to remove the deleterious effects of their market reforms from political contestation through strategies of depoliticisation. I assess the success of the strategies of juridification (the increase of formal law) and new constitutionalism (transnational legal rules which restrict national policymaking to the model of liberal democratic capitalism) in depoliticising market reforms to the English National Health Service. As the National Health Service was increasingly marketised, European Union public procurement and competition laws became increasingly applicable, although scope exists for exceptions. The discretion afforded to commissioners by the regulations passed pursuant to S.75 of the Health and Social Care Act (2012) regarding tendering is disputed. Many commissioners have acted as though their discretion was curtailed in practice. However, there are countervailing forces to competition, such as resource constraints and recent moves towards integration (although this may also afford private sector companies with new opportunities). I contend that the privatisation that marketisation has facilitated appears highly politicised, as is evidenced by increased campaigning activity in opposition to it. Recent responses to the Transatlantic Trade and Investment Partnership and prospective post-Brexit trade deals indicate a heightened awareness of the ability of external constitutional constraints to restrict National Health Service policymaking. This suggests that neither the strategies of juridification nor new constitutionalism have been successful in depoliticising market reforms to the English National Health Service.

The regulation of competition and procurement in the National Health Service 2015–2018: enduring hierarchical control and the limits of juridification

“…On the other hand, the loss of visibility of regulatory decision making may have added to the actors' confusion about the prevailing rules in the system. The observed decrease in transparency in the application of rules by Monitor/NHSI also had negative implications for accountability of the NHS governing structures to the public (Benbow, 2018; Horton and Lynch-Wood, 2018). Secondly, deploying an ‘out of sight out of mind’ strategy could not fully succeed due to the independent role of the courts and the legal levers available to providers.…”

“…The Health and Social Care Act 2012 (HSCA 2012) codified the mechanisms governing provider competition in English National Health Service (NHS), leading to concern about the potential for the regulation of competition to become excessively juridified (Davies, 2013; Benbow, 2018). At its core the process of juridification involves a shift of power away from the executive branch of the government towards the judiciary.…”

Research paradigms and the politics of nursing knowledge: A reflective discussion

“…The impact of a neoliberal approach on health care is contentious, but the evidence that it is effective and improves care is not proven. Indeed, there is strong evidence that it is more inefficient and results in a more expensive and management heavy healthcare system (Benbow, ; Paton, ). At the level of a moral economy of care, there is concern that this focus generates an increasing commodification of care (Nairn, ).…”

Juridification as politics: An institutional view

“…Yet, most scholars consider it as evidence of an increasing depoliticization (see e.g. Benbow 2018;Davis 2010;Jessop 2014;Loik 2014). 1 The law takes over politics, legal institutions take over parliamentary institutions, elections and representation turn out to be emptied out.…”