In essence, a fiduciary duty imposes the need for a person or organisation to act in the best interests of their client, prioritising what is best for them even over what is best for the fiduciaries.
Some professions that require this level of service include lawyers, financial advisors and company board members.
Why aren’t politicians in that list?
I’m being a bit disingenuous as many will argue that politicians across the world do have those duties of care and loyalty to their electorates. What I’m really concerned about is the fact there’s no legal mechanism to enforce or punish politicians who fail to live up to their duties.
Yes, clearly when politicians commit crimes, they can be held to account like the rest of us, though as we saw a little earlier, at least some politicians believe that’s wrong. But what about when they do something legal but not in the best interest of the people they serve?
Some will argue that such rules would leave politicians open to prosecution for actions that may have had unforeseen effects or simply malicious prosecution by opponents.
That’s a fair argument, but surely we’re smart enough to find ways to implement a more robust system than exists today without putting politicians in an unreasonably precarious state?
Some examples may help to illustrate the direction of travel we could aim for.
Liz Truss’s tragi-comically short tenure as UK Prime Minister has already been a source of discussion for us and she’s back again. You recall how the mini-budget announced by her Chancellor, Kwasi Kwarteng, cost British taxpayers about £30 billion?
In the UK, there is an autumn Budget and a Spring Statement announcement each year and the Office for Budget Responsibility (OBR)1 publishes a report at the time of each announcement offering a five-year forecast of the UK economy in response to the budget measures announced. The OBR is government-funded, but an independent body that is intended to offer an unbiased opinion on various aspects of government spending and lend credibility (or otherwise) to government financial plans.
It’s reported that the OBR offered to produce a report on the new financial plans in time for the announcement by Kwarteng, though Truss has claimed that a report could not be produced in time.2
So why do you think Truss chose to press on with her plans without the benefit of a forecast of the potential effects of her planned tax cuts?
I’ve mentioned our dog Princess before, but I’ve not mentioned she’s largely deaf. That’s why, when she goes on a cat food raid into the blue room, I have to get up and shout directly in her ear. If she’s in the same room when she does something naughty, I have another option. I can just put my arm up in the air, with the index finger pointing straight up, and wait for her to notice, When she does see it, she goes into poor little repentant puppy mode, ears drooped and cow eyes, to make her way slowly to me to be admonished.
Unless, as she mooches towards me, a piece of furniture should happen to block her view of my raised finger. Immediately her ears go up, her tail wags and she races out of the room to celebrate the fact that I’d changed my mind about telling her off. Obviously, I must have because she can no longer see my raised finger. Meanwhile, I’m left in the room, my index finger still raised, waiting for her to come back so we can repeat the whole bonkers cycle.
My guess is that Truss and Kwarteng didn’t want the OBR to produce a report because they feared it wouldn’t offer a positive assessment. To me, rather like Princess and the “naughty dog finger”, it looks like Truss and Kwarteng believed that if they didn’t have an OBR report, any negative outcomes that the OBR might predict wouldn’t happen because they hadn’t seen them.
I understand why Princess seems a bit dim with her understanding of how “naughty dog finger” works. She is a dog, after all, and in fairness to her, she’s almost certainly never going to run for public office. Truss and Kwarteng were grown adults and were in public office, so their choice regarding an OBR report makes no sense.
Do we even need to argue that their actions failed to offer the duty of care to the British people that we should expect? No, clearly it was pure reckless behaviour with no regard for the potential negative impact it could have on British taxpayers.
If there was a more robust system where politicians could be held accountable for actions if they fall below the expected standard, do you think Truss and Kwarteng would have acted as they did?
Imagine if they would have been personally responsible for financial losses that resulted from a failure to fulfil their fiduciary duty. Clearly they would never be able to repay the £30 billion, but if for the rest of their lives, any earnings beyond the National Minimum Wage had to be paid to the UK government, do you think they’d have acted without getting an OBR report so they could show they fulfilled their duty? And if that report had predicted large negative impacts on the UK economy, do you think they’d have still gone ahead, knowing they’d be responsible for any losses and perhaps even facing a prison term for their actions?
What they did wasn’t treasonous, but it caused serious unnecessary damage to the country, so would a prison term be disproportionate?
If a financial advisor lost their clients a few million, they could expect to be barred from working in the profession because they can’t be trusted. In at least one interview after releasing her book, Truss apparently indicated she was still open to returning as Prime Minister in the future. I’m uneasy about blocking people from the political system, but is it unreasonable that someone who has proven themselves unequivocally unable to fulfil the duty of care for the people could be barred from serving again?
At the very least, had such a system been in place, Truss would probably still be PM as I write this and she’d have never had to apologise for…oh, hang on, she hasn’t ever apologised because she’s convinced it wasn’t her fault.
(¬_¬)
While we’re asking what-if questions, we saw the Brexit scenario play out in the GTH Question simulator earlier. 88 of the experts believed the UK economy would be poorer after Brexit, compared to 4 who thought it would be richer.
In light of that, wouldn’t it have been difficult for Brexit-supporting politicians to press the people to vote to leave without very clearly stating, based upon the opinions of independent economists, the high likelihood that such a vote would make the voters poorer?
It Puts The Brakes On Political Parties
One positive consequence of a firmer system of fiduciary duty is the potential for it to reduce the power of political parties over their serving members.
If politicians have to fulfil their fiduciary duty to the best of their ability at all times, then it would be difficult for political parties to justify trying to force their members to vote in the way the party demands. Such actions could have the potential to pressure a member to break their fiduciary duty and so, while parties could offer guidance on how to vote, suspending or expelling party members shouldn’t be permissible anymore.
Having a legal responsibility to put their duty of care to the people above any loyalty to their parties might possibly affect the behaviour of politicians in other ways.
Would the Senate trial of Bill Clinton in 1999 have found him guilty on one or both of the articles of impeachment he was tried for? Or would the margin of his acquittal have been greater? In both cases, the voting quite closely matched party lines.
Similarly, would the verdict on any of the three articles of impeachment that Donald Trump faced have returned different verdicts? Again the voting largely followed party lines suggesting that, as with Clinton, the Senators weren’t voting based on the evidence but on the party of the President.
Research into data of federal trials in the US between 1980 and 1997 found that hung juries occurred in about 2% of all cases.3 Other research into the frequency in state trials found higher rates, but impeachment of a President is at the federal level, so we’ll take the 2% figure as our guide.
In the trial of five different articles of impeachment, the Senate was the equivalent of a hung jury 100% of the time. A lot higher than the 2% average.
In reality, unlike the actions of Truss and Kwarteng in refusing to seek advice before taking their action, the verdicts of the impeachment trials are less clear, even with the splits being on party lines. It would be impossible to prove whether a Senator voted guided by conscience or party, but that doesn’t mean a legal obligation to fulfil their fiduciary duty should be discarded because of that.
The last of those five articles of impeachment was against President Trump for incitement of insurrection, the result of the occupation of the Capitol by Americans who believed the claims of Trump and others that the 2020 election was stolen from them.
The same day the Capitol was occupied, it’s reported 147 Republican lawmakers voted to overturn the election results.4 It seems very few openly believed fraud had cost Trump the election and I don’t know why most chose to vote the way they did. Certainly, at least some claimed concerns over the legality of voting rule changes in some states, despite court challenges to those having been unsuccessful.
As things stood in 2020 and as I write this today in 2024, lawmakers in the US seem free to vote against ratifying an election without having to have a sound reason. So many can freely make what is essentially a political statement of being a bit sad about the result, a politician’s equivalent of throwing their rattle out of their pram, without any risk of serious blowback.
If they had a legal obligation to fulfil their duty of care to the people they serve, would the 147 Republicans have voted the same way? They’d have had to make their vote knowing they could be forced to justify their decision and produce compelling evidence to support any claim or risk potential punishment. Do you think all 147 of them would have voted the same way in those circumstances?
It wouldn’t be interfering with their right to free speech or to protest or to combat election fraud or unlawful changes to state voting rules. But it would interfere with the ability of individuals to interfere with the workings of a free democracy.
A legal obligation could also ensure we had more consistency from politicians and reduce their ability to act in openly hypocritical ways.
Staying with the US, in February 2016, Supreme Court Justice Antonin Scalia died suddenly.5 It was the seventh time since 1900 that a Justice had died in an election year. This time, the Republicans had control of the Senate and declared that they would not allow the appointment of a replacement Justice until the next President was sworn in. They cited several reasons for it being wrong to name a new judge in an election year, including an old speech by then Vice President Joe Biden.
There was no rule blocking the appointment of a new judge in an election year, but the argument that the people should have the right to choose the President who will make the choice might sound reasonable and indicate the intent to fulfil their duty of care to the people.
However, in 2020 when Justice Ruth Bader Ginsburg died just 38 days before the Presidential election, the Republicans changed their beliefs completely and confirmed a replacement justice before the election that could (and did) see a change of President.6
If the Senators had a legal obligation to fulfil their duty of care to the people, it would have been impossible for them to justify their grounds for blocking the appointment of a judge for 11 months and then confirming another in a little over a month.
Politicians represent all of their constituents, not just the ones who voted for them. Maintaining consistency in the way they do their jobs is essential to ensure that they’re representing all people equally and if placing them under a legal obligation to act fairly is the only way to ensure such behaviour, can you think of any reasons not to implement such a law?
- https://obr.uk ↩︎
- https://en.wikipedia.org/wiki/September_2022_United_Kingdom_mini-budget ↩︎
- https://www.courtstatistics.org/__data/assets/pdf_file/0022/30559/A-Profile-of-Hung-Juries.pdf ↩︎
- https://www.reuters.com/graphics/USA-TRUMP/LAWMAKERS/xegpbedzdvq/ ↩︎
- https://en.wikipedia.org/wiki/Merrick_Garland_Supreme_Court_nomination ↩︎
- https://en.wikipedia.org/wiki/Amy_Coney_Barrett ↩︎