Dealing with “unworkable ideas in primary legislation”:Juridifying and dejuridifying competition in the English National Health Service

Guy, Mary (2022) Dealing with “unworkable ideas in primary legislation”:Juridifying and dejuridifying competition in the English National Health Service. Public Law. ISSN 0033-3565 (In Press)

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Abstract

Moving between policy and law, and the creation of “new” law in a controversial area generates a range of effects – from potential court intervention, and concerns about oversight and accountability at national and transnational levels, to expectations of an irreversible direction of travel. The experience of juridifying competition reforms in the English National Health Service (NHS) with the Health and Social Care Act 2012 offers important insights with its protracted enactment and subsequent limited implementation. The new Health and Care Act 2022 repeals the controversial provisions to enshrine current NHS policy regarding integration, but other forms of “dejuridification” have evolved in the intervening period to engage with ongoing controversies about the interaction between the NHS and private healthcare. This article provides a timely evaluation of the juridification and dejuridification of competition by the 2012 and 2022 Acts, by drawing on assessments of the 2012 reforms, Blichner and Molander’s juridification typology, Veitch et al.’s conceptualisation of ‘depoliticisation’, and Magnussen and Banasiak’s conceptualisation of ‘privatisation’. This offers insights for other areas by highlighting how “Euro-ambivalent” perspectives may have overshadowed more “home-grown” aspects underpinning the development of the 2012 Act, how “repoliticisation” may need further elaboration, and how diverse both “juridification” and “dejuridification” may actually be.