Demarketisation, Deregulation, Dejuridification? Removing competition from the English NHS with the Health and Care Bill

Among the ambitious aims of the Health and Care Bill is the removal of competition from the English NHS, thus cementing policy shifts towards integration. Controversies and misunderstandings surrounding the competition provisions of the Health and Social Care Act 2012 (HSCA 2012) suggest that new legislation may be welcomed without thorough scrutiny. Some controversy lies in the ‘juridification’ of public policy identified by Davies following the HSCA 2012 reforms. The prospect of new legislation suggests that analysis of ‘dejuridification’ could offer insights which may otherwise be overlooked. Certainly the Health and Care Bill takes a different approach to other attempts to repeal the HSCA 2012, the National Health Service (Amended Duties and Powers) Bill and the NHS Bill. The latter might be characterised as ‘demarketisation’, in contrast to the ‘deregulation’ implicit in the 2019 NHS Long Term Plan proposals which underpin the Health and Care Bill. The anticompetitive agreements prohibition and merger control are two aspects of the HSCA 2012 competition policy which can be perceived as capable of inhibiting the current move towards integration. This paper uses these provisions as lenses to evaluate how ‘juridification’ developed with the HSCA 2012 and subsequently, and to examine how ‘dejuridification’ may take effect. This offers insights – and a need for caution – as the Health and Care Bill progresses through the UK parliament in the 2021/2022 parliamentary session.