4 - The hard politics of soft law: the case of health

Summary

Introduction

Talk of networked ‘new governance’ is everywhere. It elicits strong reactions – from scorn to extreme enthusiasm and from unthinking participation in new fora to excited applications of recondite social philosophy. Familiarity with the phenomenon also varies. Some forms of new governance are often found in health, but they are not necessarily known as such, while others have long histories outside health but are largely unknown within.

This chapter discusses new governance in EU health policies, examining the mechanisms and frameworks that EU institutions and Member States have introduced into health policy-making. These mechanisms promise to induce law-like behaviour by creating norms and networks (whether they will have that effect, or are intended to have that effect, varies). There are four obvious questions about any new policy development including ‘new governance’, and we answer them in the next three sections. What is it? How did it get started? Why is it happening? And what effect might it have?

A fifth question, naturally, is what has it done? Unfortunately, we cannot reasonably ask that question. For better or for worse, there is not much impact to study. Most new governance processes in health care became operational after 2005, or even later. Furthermore, many of the effects will be on process rather than outcomes – the direct effects will be on the networks and worldviews of policy-makers. The effects on infant mortality or leukemia deaths will often have to be inferred from those process changes.