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.