“Euro-ambivalence”, EU competition law, and national healthcare systems: How the UK parliament joined some of the dots with NHS reform
“We send the EU £350 million a week. Let’s fund our NHS instead” proved an effective – if misleading – slogan for the Leave campaign in the 2016 UK referendum on EU membership. While this may simply suggest a “very British” variety of Euroscepticism, its implications arguably prove further-reaching, with learning for other countries (and indeed the EU). This is because a notable part of the slogan’s power relies on the existence of a kind of “Euro-ambivalence” which would enable dots to be joined between EU law and national healthcare in diverse ways – not just by voters, but also national parliamentarians involved in legislative reform.
This blog post considers experiences of debating EU competition policy and NHS reform in the UK parliament with the controversial competition reforms of the Health and Social Care Act 2012 (HSCA 2012) and attempts to repeal these. By setting out the wider relationship between the EU and Member States regarding national healthcare systems and policy, and how this may link with considerations of Euroscepticism, it is possible to outline a conception of “Euro-ambivalence” which may find reflection in diverse areas of law.
EU Law and National Healthcare: scope for Euroscepticism and “Euro-ambivalence”?
The EU’s formal treaty competence in health was first introduced to focus on public health in the Maastricht Treaty, but was subsequently developed to underscore healthcare system organisation as a national competence (Article 152(5) EC, and now Article 168(7) TFEU). Insofar as Euroscepticism is arguably most generally understood in terms of opposition to the EU, and more specifically, to European integration, it has logically been suggested that the Maastricht Treaty – and closer Union – marked a turning-point in the development of Euroscepticism. In view of this, the subsequent amendment of the public health competence to underscore subsidiarity regarding national healthcare might indicate acknowledgement that health offers a potentially fertile terrain for Eurosceptic influence.
In contrast, “Euro-ambivalence” – in the sense of more nuanced stances with important variations being taken with regard to the EU – has been defined by Lorimer in the context of right-wing ideology in terms of 3 factors: firstly, the flexibility of political ideologies and their responsiveness to context; secondly, the complexity of the EU and its nature as an evolving process, suggesting scope for different stances according to different aspects; thirdly the different constructs of “Europe” and “the EU”. Of these, the first two have most relevance to the “Euro-ambivalence” which can be seen in UK parliamentary debates about competition reforms in healthcare.
Firstly, opposition to, and ambivalence about, the EU is seen across the political spectrum of UK politics, so is not simply a matter of “far right” ideology. This has been demonstrated in recent times by the activism of Nigel Farage with the UK Independence Party in triggering the 2016 UK referendum, and apparent support for Brexit under the guise of “Lexit” during Jeremy Corbyn’s leadership of the Labour party. Between these extremes we see ambivalence emerging in the various attempts to engineer a more moderate withdrawal.
Secondly, the scope for different aspects of EU law to have different implications for national healthcare systems is notable in light of the circumscribing effects of Article 168(7) TFEU. Thus the Patients’ Rights Directive – with its requirement for harmonisation – is an area of EU law which generated concern about national rationing and resource allocation. In contrast, no such sense of harmonisation exists with EU competition law in the healthcare context. Rather, the divergence of Member State healthcare systems, and the scope for aligning these with the EU antitrust and state aid framework (to which broadly healthcare providers, but not purchasers are subject) generate concerns about divergent interpretations with “Euro-national competition rules for healthcare” and tensions about Member States engaging with exceptions, particularly the Services of General Economic Interest (SGEI) mechanism.
Both these aspects emerge in the debates of competition reforms in the English NHS.
Debates in the UK parliament: “Euro-ambivalence” and NHS competition reforms
Since the inception of the NHS in 1948, healthcare in England has comprised the NHS as the majority provider, and the smaller, supplementary private healthcare market, with scope for patients to move between the two. The dynamics within this interaction have traditionally generated degrees of left/right fragmentation, with the Conservative party favouring development of the private healthcare market, and the Labour party seeking to restrict this and favour the NHS. Since the late 1980s, a series of reforms prioritised the competitive dynamic, initially under Conservative governments, but notably in policies under New Labour, which included expanded private sector delivery of NHS services.
This particular policy prompted concerns about the applicability of EU competition law, and the scope for the European Commission and EU courts effectively to decide matters pertaining to the NHS. The HSCA 2012 marked a controversial turning-point with the Liberal Democrat/Conservative coalition government’s “juridification” of contentious aspects of public policy (private sector delivery of NHS services), which was attributed, in varying degrees, to applicability of EU competition law. More specifically, concern appeared to attach to the idea of an irreversible direction of travel,[1] with increasing application being the logical conclusion of establishing applicability.
These concerns were articulated by Labour MPs,[2] with distinctions being drawn between the approach taken by the New Labour policy, and perceptions of the scope for floodgates to be opened by enshrinement in legislation. The Conservative MPs addressed these concerns with superficial rebuttals along the lines of “the Health and Social Care Bill does not extend the applicability of EU competition law…”.[3] The dynamic which emerged between Labour and the Conservatives in these debates might be characterised as “Euro-ambivalent” insofar as both parties appear to be acknowledging what might be perceived as a “threat”, namely the scope for an entity outside the UK to have decision-making powers over the NHS, but neither deals with this head on, either in terms of mapping out the implications, or by exploring how exceptions may work.
The ongoing controversy surrounding competition reforms in the NHS following the enactment of the HSCA 2012 led to two Private Member’s Bills being tabled to address the contentious provisions. The NHS Bill was introduced by Green and subsequently Labour MPs,[4] outlined proposals for reverting to the NHS as an inherently public service overseen by government, thus falling within the exemptions not only from EU law (via classification as a Service of General Interest), but also the World Trade Organisation General Agreement on Trade in Services. This might be considered more Eurosceptic in its approach, albeit from the distinctly left-wing perspective which suggests that the EU is ill-equipped to deliver a “social Europe”.
In contrast, a more “Euro-ambivalent” approach can be seen with the National Health Service (Amended Duties and Powers) Bill, introduced by a Labour MP, Clive Efford, in the 2014-15 parliamentary session which sought to engage with the Services of General Economic Interest (SGEI) partial exception to EU competition law. This approach acknowledged the applicability of EU competition law and focused on the solidarity aspects of the NHS to classify these as SGEI. This suggests a kind of pragmatic “Euro-ambivalence” in the desire to retain national oversight and control, while operating within a wider EU framework. While this Bill received significant support (241 votes to 18) in favour of progression beyond the second reading, debates were discontinued by the calling of the 2015 UK general election. The debates were overshadowed by limited engagement with EU law provisions,[5] and circular discussions in which the Conservative MP Jacob Rees-Mogg (and subsequent prominent Brexit supporter) sought to have NHS activity re-cast not in terms of “(social) solidarity” consistent with the SGEI exception, but with an inherently narrower focus of “medical necessity”.
These “Euro-ambivalent” attempts to both interact with, and disengage from, the EU competition law framework might be understood in terms of the complexity and distinctiveness of UK legal and political approaches to the provision of public services.[6] Indeed, it is important to note that “Euro-ambivalence” can also find reflection outside party political environments and has been seen in the courts, with framings of “solidarity” in the 2002 Bettercare case (allegations by a private care home provider of anticompetitive conduct by NHS bodies in Northern Ireland) being distinguished from the framings adopted by the EU courts in cases such as Poucet et Pistre.
The controversial HSCA 2012 provisions have recently been repealed by the Health and Care Act 2022. Given the significant changes in UK politics since the 2016 Brexit referendum, it is unsurprising that this new legislation did not seek to acknowledge the EU law frameworks underpinning either competition or public procurement rules, but rather institutes a more nationalistic focus with new rules to be overseen by the Secretary of State for Health and Social Care.
However, the linking of one contentious area (NHS-private healthcare interaction) with another (the UK’s attitude towards the EU) demonstrates how “Euro-ambivalence” can be distinguished from Euroscepticism, and how this can operate within a law-making process.[7] The two aspects – fluidity of ideology and complexity of EU law – will undoubtedly find some measure of reflection among, and act as a warning to, other countries. Lorimer’s third dimension of “Euro-ambivalence” – the differing conceptions of the “EU” and “Europe” – offers further scope for learning outside the competition and healthcare context, not least within the UK, where widescale repeal of “European” laws is envisaged.
Posted by Dr Mary Guy (Lancaster University, UK), author of Competition Policy in Healthcare and co-coordinator of the EU Health Governance Network
[1] See, for example, comments by the Labour MP, Graeme Morris. “If the full weight of EU competition law applied to the NHS, as if it were a standard service industry, the process of privatisation, which Opposition members are concerned about and the Government have indicated that they are opposed to, could not only be accelerated but might become entirely irreversible.” HC Deb, 17 March 2011, PBC (Bill 132) 2010 – 2011, col. 864.
[2] See, for example, comments by Liz Kendall MP, HC Deb, 8 February 2011, PBC (Bill 132) 2010-2011, cols. 34 and 35, and Owen Smith MP, HC Deb, 15 March 2011, PBC (Bill 132) 2010 – 2011, col. 757.
[3] Official Report, 16 March 2011; Vol. 525, c. 379.
[4] Initially by the Green MP, Caroline Lucas, during the 2014-15 and the 2015-16 Parliamentary Sessions. It was re-introduced in subsequent parliamentary sessions by Labour MPs under the Corbyn leadership – Margaret Greenwood MP in the 2016-17 Parliamentary Session, and Eleanor Smith MP in the 2017-19 Parliamentary Session. It has yet to reach the House of Commons Committee Debates stage.
[5] With brief consideration, for instance, of the Altmark exception – and by reference to limited academic sources, including a blog post based on an undergraduate dissertation. See debates: National Health Service (Amended Duties and Powers) Bill publications – Parliamentary Bills – UK Parliament
[6] Nina Boeger and Tony Prosser, ‘United Kingdom’, Chapter 18 in M. Krajewski, U. Neergaard, J. van de Gronden (eds), The Changing Legal Framework for Services of General Interest in Europe – Between Competition and Solidarity, (The Hague: TMC Asser Press, 2009).
[7] For further discussion of how “Euro-ambivalence” can operate alongside other concepts, such as “depoliticisation”, see M. Guy, ‘Dealing with “unworkable ideas in primary legislation”: juridification and dejuridification of competition in the English National Health Service’, Public Law, forthcoming January 2023.
This post was first published by REALaw blog on 4 October 2022.