Time to break the habit?

Apologies for prolonged failure to blog; it's summer and I've been busy carrying a cello around Edinburgh. Anyway, work have once again kindly agreed to let me cross-post this blog I just wrote for them over at Any Other Business to tide you over. Usual disclaimer - No Wealth But Life represents my personal views only and has no formal affiliation with my employer, etc.

Kent County Council has become the latest local authority to come under fire for its investments in tobacco. Why it has been singled out is something of a mystery - as last year's Evening Standard investigation into London boroughs' investments showed, councils who don't invest in tobacco are the exception rather than the rule. But Kent's response is a perfect illustration of a seductive habit - one that may be comforting to investors under pressure, but is less than helpful to those around them.

Faced with media criticism of the pension fund's tobacco holdings, Kent's spokesperson did what investors in their position seem to have done since time immemorial: they fell back on the well-worn mantra, "We have a responsibility to obtain the best possible return on investments."

It’s standard practice for funds, when questioned about the ethics of a particular investment, to respond that their hands are tied by their duty to maximise return. But where does this duty come from? As part of the research for our recent report, I was lucky enough to trawl through pretty much every major court case on investors’ legal duties. I looked long and hard for the oft-invoked ‘duty to maximise return’, and I can confirm that the phrase doesn’t appear anywhere.

This isn’t to say that there’s no basis at all for this view: there is, as they say, no smoke without fire. What the law does say is that pension funds have a duty to act in the best interests of their beneficiaries, and that this will usually mean their best financial interests. But does that rule out disinvestment from particular companies on ethical grounds? Not necessarily.

There is nothing in law that bars pension funds from considering their members’ ethical views. Of course, it would be unfair for them to accommodate the views of a minority if this would result in a serious loss of income for the majority who don’t care. If excluding an investment was really going to damage returns, you’d have to be able to show a pretty watertight consensus among your beneficiaries that the investment was wrong. In the case of tobacco, this might be unlikely.

But what if an investment could be excluded without damaging returns? Lots of funds exclude investments on this basis: if you can show reasonable grounds for thinking an exclusion won’t make any significant impact – for example, because you can substitute another stock which behaves in a similar way – it should be permissible by law. In the case of tobacco, some campaigners have even argued that it makes positive financial sense to exclude it, because litigation and increasing regulation mean the tobacco industry does not have a long-term future. That’s also the view taken by Newham Borough Council, whose pension fund excludes direct investments in tobacco firms.

Of course, not every given exclusion will pass this test. But the important thing is that the test should be applied: if lots of members are unhappy with a particular investment, the fund should examine whether that concern could be addressed without harming the other members’ interest in a decent pension. Instead, too many funds fall back on the easy response of claiming there’s nothing they can do.

So if your pension fund invokes the ‘duty to maximise returns’ to justify an investment you think is unethical, ask them what analysis they’ve done of the impact of excluding that stock. If the answer is ‘none’, challenge them to explain why. They might not thank you for it, but it’s in everyone’s interest to help them break the habit.