Political legal liability

Table of Contents

Introduction & Summary A Teaser Background Advocating Democracy Democracy’s vulnerabilities Overall defensive strategy The scale of the problem The legal status of politicians? The case for licensing politicians The case against licensing politicians The requirements for license-a statuary body to manage the process The requirements for license-the process The application and length of validity Eligibility to holding a licence Licences: non-renewal, suspensions and cancellations The requirements for license-the standards to be attained The requirements for license-the criteria Awarding or refusing the licence Political legal liability Educational program The Singapore experience Promotion and dissemination References Appendix 1 SWOT Analysis of UK democracy post 2024 UK general election Appendix 2. Governance and misconduct arrangements in certain professions Appendix 3: Table of evidence required for each criterion Appendix 4: Process for converting Criteria satisfied to Licence granting

In preparation of the criteria two issues arose. The first was the comparison with professionals and the standards they uphold and the consequences they face if not met. This was highlighted by events both in the UK (19) and USA (20). When a politician seriously screws up, should there be some further legal consequence beyond losing the licence. This is another new concept, and it too is being introduced for debate.

There is only one specific situation that is under discussion here. It is when the Governmental and Executive Institutions are advocating or carrying out policy that is contrary to the perceived wisdom of the day. This may arise when a government has been elected on a platform that includes popular sensible policies, A, B and C but also includes policy D which not only is neither, but it is also to be pushed causing harm and damage to many. 

Depending on the nature and circumstances of the issue the relevant institutions are parliament and its members, the relevant government ministers including the Prime Minister and the senior civil service as the executive branch. 

If such a liability was to be created, how this would manifest itself if the matter came to a court needs to be worked out.  The issue would be considered a civil matter. The opinion may be sought before the event or after it.

If before the enaction of the policy and once in court the legal test question to be asked would be, “On the balance of probability is the weight of expert opinion very clearly advising that enacting the proposed policy will cause more harm than good?”

The wording is such to acknowledge that experts too can have differences of opinions and that the policy advocates do not seek an outlying opinion that is sympathetic to their cause. ‘Very clearly advising’ is plainly implying much more than 51% of expert opinion. 90% of experts advising in the same direction is patently sufficient. It may depend on the probability-harm analysis of the specific issue. Where expert opinion is approximately equally divided there would be no liability as the test fails. While the overall harm benefit could not be accurately predicted, carrying out the intention may have a favourable outcome, or it may not and give lessons to be learnt for the future.

The opinion may be sought by the Civil service or the politicians themselves. The opinion may be sought by an interested opposition group challenging the government. If the advice of ‘do not enact’ was followed that is the end of the matter.

After the event the legal test is three-fold:

  1. Was there overall harm that ensued unequivocally greater than the benefit?
    1. If ‘No!’-there is no liability
    2. If ‘Yes’ ask question 2
  2. Was expert opinion sought prior to taking the action?
    1. If ‘Yes’ and the advice was ‘may enact’ there is no liability unless it can be demonstrated that the method of obtaining the opinion was flawed. 
    2. If ‘Yes’ and the advice was ‘not to enact’, there is liability.
    3. If ‘No’ ask question 3
  3. If legal advice would have been sought, would the legal test question have been satisfied?
    1. If ‘No’-there is no liability, but future licence may be refused on the basis that expert advice was not sought when it should have been. 
    2. If ‘Yes’ there is liability

What that liability should be is also up for debate. The liability should be limited. There needs to be some penalty but, for example, how does one monetize a crashed economy or harm to the environment? Its purpose is not to penalize or to recompense for damages, but to act as a deterrent to the arrogant politician who believes that their political doctrine is superior to the collective wisdom of the experts in the field. Its purpose like all the criteria is to focus the political minds on acting for the national good 

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