Is it possible to nudge your way out of the pandemic?

We’ll find out soon enough because that’s what the UK Government is trying to do – use the tricks and techniques of behavioural science, rather than lots of regulations, to get its population to do the right thing.

“We will change the basic tools that we have used to control human behaviour,” Prime Minister Boris Johnson explained in the days before England’s “Freedom Day” on 19 July, when most restrictions on movement were removed.“We will move away from legal restrictions and allow people to make their own informed decisions about how to manage the virus.”

Johnson is talking about Nudge Theory, which  was officially embraced by the UK Government in 2010 when it set up the Behavioural Insights Team – the Nudge Unit.

The idea is simple enough – use the skills of behavioural psychologists, rather than government edict, to nudge people in the direction you want them to go.

The classic, oft-cited example is if you’re fighting obesity, then putting fruit at eye level in the supermarket is a nudge. Banning junk food is not.

Applied to COVID-19, it might mean encouraging people to get vaccinated to protect their loved ones, or suggesting people sing “Happy birthday” for 20 seconds while washing their hands.

Governments around the world, including the Australian and state governments, have embraced and used nudge theory for all sorts of reasons – from encouraging people to pay their fines on time to getting them to sign up for organ donations.

But there’s an underlying problem, which a partner at law firm Gadens, Lionel Hogg, highlighted at a recent seminar for government lawyers, titled “The practice and ethics of nudging”.

“We’re not very legally supported at the moment,” he said.

“Most powers that governments have are to regulate what we do, not to influence what we do. Government isn’t set up for that.”

That’s to say, there’s no legislation that guides the use of nudging, no mandated requirements for transparency, no appeals mechanism, no accountability.

“Personally, I think the use of behavioural insights to make our lives better is a very desirable thing and I think most nudging is done very well,” Hogg said.

“But the questioning lawyer says, what if it’s not?

“A nudge is the use of the powers of the state to influence choice by citizens, and done properly, that’s fantastic.”

“But at the other extreme, it could be theoretically evil.”

In other words, who’s watching the nudgers?

Who’s making sure the choices they’re encouraging us to make, are actually in our own best interests and not just the interests of the state, or politicians?

Hogg argued that in the absence of a legal structure, it was up to government lawyers to protect the public interest.

“Government lawyers are the first check on government power,” he told his audience of government lawyers.

“They have an ethical and legal obligation to avert incorrect potential abuses of power. That’s one of their core duties.

It was the lawyers, he said, who had to ask, “Can we do it? How do we do it? How are we transparent about it?”

Questions about the ethics of nudging have been around pretty much since its initial embrace by governments more than a decade ago.

The House of Lords Science and Technology Select Committee looked at the matter in 2011 and concluded among other things, that:

“There are a range of issues about the ethical acceptability of behaviour change interventions and that, in some circumstances, changing behaviour will be considered controversial.”

Having identified the issue, it provided no solution.

“Though these issues are important, we have not explored them in detail in this report but have instead highlighted them as matters which policy makers should take into account when formulating and implementing behaviour change interventions.”

It did however recommend the Government appoint a Chief Social Scientist, as “an independent expert in social science research to ensure the provision of robust and independent social scientific advice.”

A decade on, the UK Government hasn’t made such an appointment but it has continued to embrace nudge theory.

But will this reliance on nudging actually work when it comes to conquering COVID-19?

The House of Lords Committee report offered this general observation:

“Our central finding is that non-regulatory measures used in isolation, including “nudges”, are less likely to be effective.

“Effective policies often use a range of interventions.”