1 See speech by David Cameron, “David Cameron attacks UK ‘moral neutrality”, Daily Telegraph, 7 July 2008, available on the Internet at <http://www.telegraph.co.uk/news/newstopics/politics/conservative/2263705/David-Cameron-attacks-UK-moral-neutrality---fulltext.html> (last accessed on 11 January 2012).

2 For a mapping of the Conservatives’ agenda see Boles, Nick, Which Way's Up? (London: Biteback Books, 2010) by a leading moderniser and Cameron advisorGoogle Scholar.

3 Astonishingly, their programme has been frequently described as ‘Maoist’ in character. See, for example, Ed Rooksby, “Vince Cable is right: in some ways the coalition is a bit like Maoism”, The Guardian, 23 December 2010, available on the Internet at <http://www.guardian.co.uk/commentisfree/2010/dec/23/vince-cable-mao-coalition-marxist-capitalism?INTCMP=SRCH> (last accessed on 11 January 2012).

4 See Cameron, David Cameron attacks UK’ moral neutrality, supra note 1.

5 Thaler, Richard H. and Sunstein, Cass R., Nudge: Improving Decisions About Health, Wealth and Happiness, (London: Yale University Press, 2008)Google Scholar.

6 As an indication of the extent, and public nature of collaboration, Cameron's second-in-command, Chancellor George Osborne, cowrote an article with Thaler – with the unfortunate title, “We can make you behave”, The Guardian, 28 January 2010, available on the Internet at <http://www.guardian.co.uk/commentisfree/2010/jan/28/we-can-make-you-behave?INTCMP=SRCH> (last accessed on 11 January 2012).

7 See Dora Costa and Matthew Kahn, Energy Conservation “Nudges” and Environmentalist Ideology: Evidence from a Randomized Residential Electricity Field Experiment. Presentation at 2010 Power Conference, Princeton University, available on the Internet at <http://academics.hamilton.edu/economics/home/kahn_hamilton_paper.pdf> (last accessed on 11 January 2012).

8 Alongside Nudge, the two key texts now usually cited are Robert Cialdini, Influence: The Psychology of Persuasion (New York: Harper Business, 2007), and Ariely, Predictably Irrational, supra note. 7.

9 Kahan, Dan, “Gentle Nudges versus Hard Shoves: Solving the Sticky Norms Problem”, 67(3) University of Chicago Law Review (2000), at pp. 607–646CrossRefGoogle Scholar.

10 Amir, On and Lobel, Orly, “Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy”, 108 Columbia Law Review (2008), at pp. 2098–2139 Google Scholar.

11 For a useful review see, Amir and Lobel, Stumble, Predict, Nudge, supra note 10, at pp. 2127–2132.

12 For example, findings that we are more prepared to have unprotected sex when sexually aroused, or that we are more likely to steal stationery from work than the financial equivalent. See these and other examples in Ariely, Dan, Predictably Irrational: the Hidden Forces that Shape Our Decisions, (New York: Harper Collins 2008)Google Scholar. Results are perhaps less surprising than why it was thought these issues were thought worthy of investigation in the first place.

13 This interesting example is cited in the interview with Ariely in Matthew Taylor, “Better the devil you know”, RSA Journal, available on the Internet at <http://www.thersa.org/fellowship/journal/features/features/better-the-devil-you-know> (last accessed on 11 January 2012).

14 Cabinet Office and Institute for Government, MINDSPACE: Influencing Behaviour through Public Policy (London: Cabinet Office, 2010)Google Scholar.

15 Saunders, Ben, “Normative Consent and Opt-Out Organ Donation,” 36(2) Journal of Medical Ethics (2010), at pp. 84–87 CrossRefGoogle Scholar.

16 The Coalition, Our Programme for Government (London: HM Government, 2010) at p. 7, available on the Internet at <http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf> (last accessed 11 January 2012)+(last+accessed+11+January+2012)>Google ScholarPubMed.

17 David Halpern, Institute for Government blog, “No.2 to No.10: Taking Mindspace to Downing Street”, available on the Internet at <http://www.instituteforgovernment.org.uk/blog/764/no-2-to-no-10-taking-mindspace-to-downing-street/> (last accessed 11 January 2012).

18 Their initial projects are on: smoking, organ donation, teenage pregnancy, alcohol, diet and weight, diabetes, food hygiene, physical exercise, and social care. See “Applying Behavioural Insight to Health”, (London: Cabinet Office Behavioural Insights Team, 2010), available on the Internet at <http://www.cabinetoffice.gov.uk/resource-library/applying-behavioural-insight-health> (last accessed on 11 January 2012).

19 On the fundamental continuity between recent Labour and Conservative administrations, and way in which the Conservatism of Margaret Thatcher subsequently shaped Labour policy, see Jenkins, Simon, Thatcher and Sons: A Revolution in 3 Acts (London: Penguin, 2007)Google Scholar.

20 MINDSPACE, Influencing Behaviour through Public Policy, supra note 14.

21 For a journalistic account of how nudging is being used in the Obama administration see, Michael Grunwald, “How Obama is using the science of change”, Time, 2 April 2009, available on the Internet at <http://www.time.com/time/magazine/article/0,9171,1889153,00.html> (last accessed 11 January 2012).

22 Sunstein situates ‘Nudge’ in this context in this interview, available on the Internet at <http://www.youtube.com/watch?v=DD-fUJs5t_k> (last accessed 11 January 2012).

23 Lord Alderdice quizzed civil servants applying behavioural solutions, making the useful distinction between ‘informed design’ which describes most behavioural ideas, and actually ‘evidence based policy’. See House of Lords Select Committee on Science and Technology Inquiry on Behaviour Change, Evidence Session 2 (2 November 2010), available on the Internet at <http://www.parliament.uk/documents/lords-committees/science-technology/behaviourchange/ucSTI021110ev1.pdf> (last accessed on 20 December 2010).

24 Men aim at the ‘fly’, reducing spillage.

25 Taylor, Better the devil you know, supra, note 13.

26 Jon Dennis, “We still need a nudge”, The Guardian, 25 March 2009, available on the Internet at <http://www.guardian.co.uk/commentisfree/2009/mar/25/nudge-economics-social-policy> (last accessed on 11 January 2012).

27 Andrew Sparrow, “Nudge Economics still relevant in recession”, Guardian blog, 8 April 2009, available on the Internet at <http://www.guardian.co.uk/politics/blog/2009/apr/08/nudge-george-osborne> (last accessed on 11 January 2012).

28 The notion of ‘nannying’ derives from the phrase the ‘nanny state’; that is an overly interventionist style of government that dictates to its citizens like a grandmother (‘nanny’).

29 Reaction to this description prompted a direct response from the authors; Cass R. Sunstein & Richard H. Thaler, “Libertarian Paternalism Is Not an Oxymoron”, 70 U. Chi. L. Rev. (2003), at p. 1159, and expanded on in Nudge (pp. 4–6). This has been the subject of much further debate, such as in Amir and Lobel, Stumble, Predict, Nudge, supra note 6.

30 These initiatives were, somewhat paradoxically, initiated by Labour governments. They were, practically, marginalised however, most clearly with the Risk Regulation Advisory Council created by Gordon Brown.

31 Andrew Lansley, “A New Approach to Public Health”, 7 July 2010, Speech to Faculty of Public Health conference, available on the Internet at <http://www.dh.gov.uk/en/MediaCentre/Speeches/DH_117280> (last accessed on 11 January 2012).

32 Cited in Brown, Duncan, “Hazardous drinking, the middle class vice”, The Times, 16 October 2007, at p. 7 Google Scholar.

33 See ‘Burn off Christmas with a walk, BBC News Online, 22 December 2009, available on the Internet at <http://news.bbc.co.uk/1/hi/health/8425433.stm> (last accessed 11 January 2012).

34 Heavy drinking in public is an endemic not epidemic phenomenon in the UK; a long established cultural trend. At the same time it is still subject to considerable fluctuation because of shifts in social behaviour, such as the decline in young people's drinking in the later 2000s. See Burgess, Adam, “The Politics of Health Risk Promotion. ‘Passive Drinking’: A ‘Good Lie’ Too Far?” 11(6) Health Risk and Society (2009), pp. 527 et sqq. p. 536CrossRefGoogle Scholar.

35 For a substantial account of these developments in the UK see Moran, Michael, The British Regulatory State: High Modernism and Hyper Innovation, (Oxford: Oxford University Press, 2007)Google Scholar. An important policy response was provided by the Better Regulation Commission, Risk, Responsibility and Regulation – Whose Risk is it Anyway? (London: Better Regulation Commission, 2006)Google Scholar. This provided the basis for developing the Risk Regulation Advisory Council.

36 Johnston, Philip, Bad Laws (London: Constable, 2010), p. 10 et sqq Google Scholar.

37 See Burgess, Adam, “Media Risk Campaigning: From Mobiles Phones to Baby P”, 13(1) Journal of Risk Research (2010), pp. 59 et sqq., at p. 69CrossRefGoogle Scholar.

38 For example, the Safeguarding Vulnerable Persons Act – which subjected all adults coming into contact with children on any regular basis to regulation – was so badly drafted that it required 250 amendments by the end of its parliamentary progress. The Act was a response to the publicity generated by the murder of two schoolgirls by a school caretaker, Ian Huntley, and the subsequent public inquiry.

39 Johnston, Bad Laws, supra note 39, p. 36.

40 Webster, Paul and Sanderson, Dennis, “Brown's plea to take the additives out of children's food”, The Times, 7 September 2007. p. 5 Google Scholar.

41 Most controversially, Labour's anti terrorism was pursued through ‘control orders’ – virtual house arrest – and through a 28-day detention for suspects. These were major behind-the-scenes controversies for the Coalition government who were formally committed to their abolition but eventually only moderated them.

42 Burgess, The Politics of Health Risk Promotion, supra note 34.

43 Cialdini, Influence, supra note 8.

44 Lansley's speech (A New Approach to Public Health, supra note 31) makes clear that he shares a similar agenda to his predecessors – from targeting obesity to amplifying the threat of flu epidemic.

45 Willis, Jerry and Giles, Donna, “Behaviourism in the Twentieth Century: What we Have Here is a Failure to Communicate”, 9(3) Behaviour Therapy (1978), pp. 15–27 CrossRefGoogle Scholar.

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47 Wilson, What Price Liberty?, supra note 46, pp. 285–338.

48 Beck, Ulrich, Risk Society: Towards a New Modernity (London: Sage 1992)Google Scholar.

49 Beck, Ulrich and Beck-Gernsheim, Elisabeth, Individualization (London: Sage 1992)Google Scholar.

50 Behavioural Insights Team, Applying Behavioural Insight to Health, supra note 18, p. 13.

51 Behavioural Insight Team, Applying Behavioural Insight to Health, supra note 18, p. 25.

52 The paradox was first put forward by statistician Rose, Geoffrey, “Strategy of prevention: lessons from cardiovascular disease”, 282 British Medical Journal (1981), pp. 1847–51CrossRefGoogle ScholarPubMed.

53 Alan Miller, “Let's Banish Nudges and Bans”, Huffington Post, available on the Internet at <http://www.huffingtonpost.com/alanmiller/nudges-and-bans-lets-bani_b_781651.html> (last accessed on 11 January 2012).

54 Bovens, Luc, “The Ethics of Nudge”, in Yanoff-Grune, T. and Hansson, S. (eds.) Preference Change (New York: Springer, 2009), available on the Internet at <http://www.bovens.org/TheEthicsFV.pdf> (last accessed on 11 January 2012)Google Scholar.

55 See Whyte, Kyle Powys and Selinger, Evan, “Competence and Trust in Choice Architecture”, 23 (3-4) Knowledge, Technology & Policy (2010), pp. 461–482 Google Scholar.

56 House of Lords Select Committee on Science and Technology Inquiry on Behaviour Change Evidence Session 1 (9 November 2010), available on the Internet at <http://www.parliament.uk/documents/lords-committees/science-technology/behaviourchange/ucSTI021110ev1.pdf> (last accessed on 20 December 2010).

57 For a useful philosophical critique, see Whyte and Selinger, Competence and Trust in Choice Architecture, supra note 54.

58 Bovens also makes this point, The Ethics of Nudge, supra note 55, p. 12.

59 Recent analysis now tends to suggest that they are at least as effective, probably more so than traditional fat and calorie controlling diets. See for example, Dansinger, Michael L., Gleason, Joi Augustin, Griffith, John L. et al., “Comparison of the Atkins, Ornish, Weight Watchers, and Zone diets for weight loss and heart disease risk reduction: a randomized trial”, 293(1) Journal of the American Medical Association (2005), pp. 43–53 CrossRefGoogle Scholar. Increasing recognition that weight loss may be better achieved through limiting carbohydrates also illustrates the often counter-intuitive nature of biological processes, as becoming less fat is not necessarily best done by eating less fat.

60 Bovens discusses this issue interestingly, suggesting that nudge needs to preserve at least ‘in principle’ rather than ‘actual’ token interference transparency; that we could, at least theoretically, be able ‘to identify the intention of the choice architecture and she could blow the whistle if she judges that the government is overstepping its mandate.’, The Ethics of Nudge, supra note 55, p. 13.

61 Bovens, The Ethics of Nudge, supra note 55, p. 11.

62 Camfield, Laura, Crivello, Gina and Woodhead, Martin, “Wellbeing Research in Developing Countries: Reviewing the Role of Qualitative Methods,” 90(1) Social Indicators Research (2009), pp. 5–31 CrossRefGoogle Scholar; Frey, Bruno, Happiness: A Revolution in Economics, (Cambridge, MA: MIT Press, 2008)CrossRefGoogle Scholar.

63 Costa and Kahn, Energy Conservation “Nudges” and Environmentalist Ideology, supra note 7.

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66 Alcock, Ruth and Busby, Jerry, “Risk migration and scientific advance: the case of flame-retardant compounds”, 26(2) Risk Analysis (2006), pp. 369–381 CrossRefGoogle Scholar.

67 The most comprehensive study into the effects comes from Australia. For example, data from Western Australia shows the number of Australian children walking or riding a bicycle to school plunged from about 80% in 1977 to the current level around 5%. This fall directly coincided with the introduction of compulsory helmet wearing. See the compilation of research, Bike numbers in Western Australia, available on the Internet at <http://www.cycle-helmets.com/bicycle_numbers.html> (last accessed on 11 January 2012).

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70 See the Behavioral Diabetes Institute, for example, available on the Internet at <http://behavioraldiabetesinstitute.org/about-Behavioral-Diabetes-Institute.html> (last accessed on 11 January 2012).

71 See Sendhil Mullainathan's talk on these issues, available on the Internet at <http://www.ted.com/talks/sendhil_mullainathan.html> (last accessed on 11 January 2012).

72 Adita Chakkraborty, “Brain Food”, The Guardian G2, 7 December 2010, at p. 5.

73 Catherine Bennett, “Oh, Mr Cameron, do stop all that annoying nudging,” The Observer, 5 December 2010, at p. 43.

74 See, for example, Millward, Joe, “Letting the food industry shape policy will ruin a century of progress”, The Guardian, 3 December 2010, at p. 17 Google Scholar.

75 Bonell, Chris, McKee, Martin, Fletcher, Adam et al., “Nudge Smudge: UK Government Misrepresents ‘nudge”’, 377 The Lancet (2011)CrossRefGoogle Scholar, early online publication, 17 January 2011, available on the Internet at <http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(11)60063-9/fulltext> (last accessed 11 January 2012).

76 Melanie Philips, “The happy mind-benders at No.10,” Daily Mail, 29 November 2010, available on the Internet at <http://www.melaniephillips.com/the-happy-mind-benders-of-numberten?searched=mind-benders&advsearch=oneword&highlight=ajaxSearch_highlight&plusajaxSearch_highlight1> (last accessed 11 January 2012).

77 Francis Maude, “The nudge is no fudge”, The Guardian, 27 December 2010, available on the Internet at <http://www.guardian.co.uk/commentisfree/2010/dec/27/nudge-fudge-community-level> (last accessed 11 January 2012).

78 The impulse behind Coalition policy remains a debateable question. But in my view, critics tend to act as if financial restrictions simply do not exist – yet they are plainly real. Further, an example like the transformation of higher education suggests that the ideological determination to shift the focus of power is predominant. The changes in higher education are likely to cost the state more in the long term, as a large proportion of the new student loans will not be paid back. Meanwhile, the immediate consequence is to take resources from university teaching budgets and, at least theoretically, place greater power in the hands of the individual student ‘consumer’.

79 Fitzpatrick, Michael, The Tyranny of Health: Doctors and the Regulation of Lifestyle (London: Routledge, 2000)Google Scholar.

80 For thinking socially about matters of taste, see Bourdieu, Pierre, Distinction: A Social Critique of the Judgement of Taste (Cambridge MA: Harvard University Press, 1987)Google Scholar.

81 Brandt, Allan and Rozin, Paul, Morality and Health: Interdisciplinary Perspectives, (London: Routledge, 1997)Google Scholar.

82 Raffle, Angela and Muir Gray, J.A., Screening, Evidence and Practice, (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar.

83 Maintaining ‘good health’ in the past was not generally regarded as an end in itself – as tends to be the case today – but simply as the bodily prerequisite for moral, intellectual and practical achievement. Those unreasonably concerned were known as ‘hypochondriacs’, a term which also indicates the necessary connection with unending concern about even the most minor possible threats to health.

84 Fitzpatrick, The Tyranny of Health, supra note 79.

85 Booker, Christopher and North, Richard, Scared to Death (London: Continuum, 2009)Google Scholar.

86 Virginia Bottomley, “Health of the Nation”, Hansard, 8 July 1992, Vol. 211, cc.335, available on the Internet at <http://hansard.millbanksystems.com/commons/1992/jul/08/health-of-the-nation> (last accessed 11 January 2012).

87 Booker and North, Scared to Death, supra note 85.

88 See Burgess, The Politics of Health Risk Promotion, supra note 34, p. 537.

89 See Johnston, Bad Laws, supra note 34, p. 62.

90 Department of Health, Healthy Lives, Healthy People: Our Strategy for Public Health in England, (London: HM Government, 2010)Google ScholarPubMed.

91 Behavioural Insight Team, Applying Behavioural Insight, supra note 18.

92 See, for example, BRC, Whose Responsibility, supra note 33. Risk, Regulation Advisory Council, Response with Responsibility: Policy Making for Public Risk in the 21^st Century, (London: BIS, 2009).