Loyalty and Politics: From Case Law to Statute Law

Abstract

Holders of public office, whether elected or not, exercise a range of legal powers, and it would seem to go without saying that they should do so in the public interest. There have always been opportunities to misuse such powers and, what is a separate but overlapping problem, to extract personal gain. These are the same problems that animate the principles governing fiduciary relationships in private law. In this paper, I examine the extent to which the fiduciary principles relating to conflicts and unauthorized profits have been applied to elected politicians. The courts in the UK and in Canada were willing to apply them, as a matter of non-statutory law, directly to elected municipal politicians. In relation to governments with sovereign powers (as opposed to the delegated powers of municipalities), however, the picture is different. While fiduciary principles have been applied to servants of such governments, there is no evidence that the courts have been willing to apply these non-statutory norms to elected members. In Canada, however, recent years have seen an expansion of statutory interventions aimed at subjecting politicians (and other public office holders) to legislated versions of fiduciary principles.

This article examines these developments, offering some reflections on why the courts have made the distinctions that they have. It also asks whether these statutory interventions are well conceived and well designed. Finally, it suggests that fiduciary norms do not belong exclusively either to private law or public law, but rather to certain kinds of relationships wherever they may arise.

Keywords: fiduciary law, conflicts, politics

JEL Classification: K00, K19, K42