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In our recent weekly round-up we noted that on 4 February The Times carried a report (£) by Dominic Kennedy on the Election Court hearing of the challenge to the re-election of Lutfur Rahman, the Mayor of the London Borough of Tower Hamlets. Rahman is accused, inter alia, of securing re-election last year by telling Muslims that it was their religious duty to vote for him; and the report says that Richard Mawrey QC, an election commissioner, had said that priests and imams could be committing the 19th-century offence of “spiritual influence” if they told their supporters that it was forbidden to vote for a certain candidate.
As readers might suspect, the issue is more nuanced than The TImes’ report suggests, and whilst we may not comment on the on-going case, this post will explore the issues raised by “spiritual influence”, a term that continues to give rise to confusion as to its meaning and application.
Whereas the legislation on “non-party campaigning”, covered in our post Blogging, campaigning and the General Election, is essentially concerned with spending limits imposed on organisations and individuals by Transparency of Lobbying, (etc) Act 2014, the offence of “spiritual injury” concerns the conduct of individuals during elections, and is one aspect of “undue influence” now included in section 115(2) Representation of the People Act 1983. Nevertheless, as will be discussed, there is a degree of overlap between the two provisions,
Electoral law in the UK has become “complex, voluminous, and fragmented”, with a substantial corpus of primary and secondary legislative material governing elections and referendums. A project to review electoral law was announced by the Law Commission on 19 July 2011 and on 9 December 2014, in conjunction with the Scottish Law Commission and the Northern Ireland Law Commission, it launched the joint consultation Electoral Law which reviews UK electoral law, including “spiritual influence”, and makes provisional proposals or asks questions about its reform.
The Electoral Commission’s Research Paper The Regulation of the Campaign and Electoral Offences provides some background to the offence of “spiritual injury” – “a 19th Century attempt to catch abuses of authority by members of the clergy”. As a consequence of undue influence by threat of spiritual injury an election in the Meath Southern Division Case was avoided [i.e. nullified]: see Dalton v Fulham. O’Brien J said:
“Whatever might be the view taken at one time of the question of the right of the State to step into the domain of human conscience and to say that a person should not be influenced who had himself the power of resisting the influence, we must take the law to be settled by [express terms of statute in this country.] …
The real principle is not that of intimidation in the proper sense, because intimidation in the spiritual relation assumes to be for the benefit of persons intimidated; but it is that of undue influence, which by common law is allowed to void all private acts and [is] applied to the public act of the exercise of the franchise.”
The election court held that, in view of the coordination and influence of the clergy at that time, the reading at the altar of a bishop’s pastoral letter in support of one candidate exerted undue spiritual influence.  The Research Paper states that no definitive test was laid down or exists; but such cases were most frequently brought in Ireland, where the influence of the clergy was most strongly felt.
With regard to the frequent reference to common law in election cases where undue influence by persons in religious authority was addressed, it suggests that this relates to
“the principle that undue influence will vitiate a private transaction, such as a contract or, which is the context more relevant, a will. Those with religious authority exert undue influence if they ‘make use of their power to excite superstitious fears or pious hopes, to inspire… despair or confidence…’ in such a way that it amounts to an abuse of that authority and power.”
Subject to its caveat on the currency of the information, the Research Paper (dated 9 December 2014) states that no recent case of undue influence by threat of spiritual injury has been reported, although it notes the recent election petition arising out of the Tower Hamlets Mayoral elections. However, it states “it is questionable whether a public prosecution would be brought on this basis”, and adds that “clarification of what amounts to undue influence by spiritual injury in the modern era is sorely needed.”
The joint consultation
The joint consultation includes, inter alia, reforms of the offence of “undue influence”; it states:
“11.50 Undue influence was derived from the common law, which used it to vitiate private acts and contracts. Within the modern common law it is understood to be complex and difficult to rationalise. We consider undue influence is best understood if broken down into these components:
(1) Pressure and duress: to include any means of intimidation, whether it involves physical violence or the threat of it, or some other compelling threat.
(2) Trickery: to cover devices and contrivances such as publishing a document masquerading as a rival campaign’s.
(3) Abuse of a position of influence: where a special relationship of power and dependence exists between the person exerting the influence and the voter.
11.51 The last of these could cover, in certain cases, the influence of a person with religious authority over those who defer to them, but we do not think the law is, or ever was, that any kind of statement by religious authorities as to a campaign matter amounts to undue influence.
11.52 There is a case for removing the express reference to threatening ‘spiritual’ injury, leaving the courts to decide whether someone was in a special position of influence over another which he or she abused. The counterargument is that this might leave the law uncertain. One may go even further, and state that it is impractical for the law to distinguish between proper and improper reasons for voting in a particular way.
11.53 We provisionally propose that the offence of undue influence should be restated to involve pressure, duress or trickery as outlined above, and seek consultees’ views on whether the offence should also cover the abuse of a position of influence.”
Nature of the offence
The term “spiritual influence” may be a useful as a catch-all description of the range of issues involved; however, when applied to what is and what is not permissible, it tends to lead to confusion, and any analysis must address the “undue” component of the influence in addition to the “spiritual” activities than fall within the ambit of the legislation. The latter is currently defined in section 115 of the Representation of the People Act 1983:
(1) A person shall be guilty of a corrupt practice if he is guilty of undue influence.
(2) A person shall be guilty of undue influence—
(a) if he, directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting; or
(b) if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents, or intends to impede or prevent, the free exercise of the franchise of an elector or proxy for an elector, or so compels, induces or prevails upon, or intends so to compel, induce or prevail upon, an elector or proxy for an elector either to vote or to refrain from voting.
The wording is virtually the same as section 2 of the Corrupt Practices Act 1883, itself taken from the Corrupt Practices Act 1854, but substituting the words “temporal or spiritual injury,” in place of ” intimidation.” The 1883 Act was therefore the first statutory provision relating to “spiritual injury”, hence the frequent reference to common law in earlier actions for allegedly corrupt practices; the range of terms used to describe such practices; and the sometimes differing approaches adopted by the courts.
In the Dalton v Fulham case, above, O’Brian J was referring to an earlier statement of Fitzgerald J (later Lord Fitzgerald) in the Longford judgment. This clearly distinguished between “clerical influence” and “clerical intimidation”:
“The Catholic priest has, and he ought to have, great influence. His position, his sacred character, his superior education, and the identity of his interests with those of his flock, insure it to him; and that influence receives tenfold force from the conviction of his people that it is generally exercised for their benefit. In the proper exercise of that influence on electors, the priest may counsel, advise, recommend, entreat, and point out the true line of moral duty, and explain why one candidate should be preferred to another, and may, if he thinks fit, throw the whole weight of his character into the scale, but he may not appeal to the fears, or terrors, or superstitions of those he addresses.”
and indicated that in such circumstances, undue influence might include:
“[threats] to ex-communicate, or to withhold the Sacraments, or to expose the party to any other religious disability, or denounce the voting for any particular candidate as a sin, or as an offence involving punishment here or hereafter.”
However, there is no unanimity within the case law on some of these issues; furthermore, the examples of “clerical intimidation” before the courts have included instances of both direct and indirect “spiritual implications”, e.g. the imposition of immediate sanctions as well as potential threats “hereafter”, as well as less spiritual coercion by clergy. Furthermore, there are few reported cases after the 1883 Act became law.
It is difficult, therefore, to extrapolate the uncertain meaning of “spiritual injury” to present-day application, although some aspects of “clerical influence” identified by O’Brien appear to fall within the “non-party campaigning” provisions of the Transparency of Lobbying, (etc) Act 2014. We would wholeheartedly agree with the statement that “clarification of what amounts to undue influence by spiritual injury in the modern era is sorely needed.”. Readers may submit their views to the Electoral Commission joint consultation which concludes on 31 March 2015.
Church of England and electoral law
In an earlier post we observed that the article in The Times led the Archbishop Cranmer blog to ask, not unreasonably, ‘If Imams may not influence Voters, why should Priests or Bishops?‘ In particular, “If it should be illegal for religious leaders to guide or ever-so-subtly coerce others in how they might vote, why are the 26 Lords Spiritual in the Upper Chamber of Parliament?” A narrowly-focused response would be that within the terms of s115 Representation of the People Act 1983, it is fairly clear that the Lords Spiritual do not exert “undue influence”. The broader issue clearly relates to the raison d’être of the Lords Spiritual, which has been the subject of much discussion elsewhere.
Another pertinent issue that was raised by Frank is “how does it all mesh with the C of E’s anathematization of the BNP?” Readers will recall that on 3 June 2014 the House of Bishops voted to make membership or support of the British National Party (BNP) or National Front (NF) a potential disciplinary offence for clergy. The CofE Press Release stated:
“The formal declarations by the House of Bishops mean that a complaint of misconduct can be made under the Clergy Discipline Measure 2003 against any cleric of the Church of England who is a member of, or promotes or expresses or solicits support for, the BNP or NF.”
The declarations were laid before the General Synod at its July meeting in York and came into force at 5.30 pm on 11 July 2014. Section 1 of the Clergy Discipline (Amendment) Measure 2013 amends section 8 of the Clergy Discipline Measure 2003 as follows:
“(4) Notwithstanding subsection (3) above, it shall be unbecoming or inappropriate conduct for any archbishop, bishop, priest or deacon to be a member of, or to promote, or express or solicit support for, a political party or other organisation whose constitution, policies, objectives, activities or public statements are declared in writing by the House of Bishops to be incompatible with the teaching of the Church of England in relation to the equality of persons or groups of different races.”
The Explanatory Note GS 1946-7X states, [emphasis in original]:
“Section 8 of the Clergy Discipline Measure 2003 (‘the CDM’), as amended by the Clergy Discipline (Amendment) Measure 2013, provides that the House of Bishops may declare in writing that the ‘constitution, policies, objectives, activities or public statements’ of a political party or organisation are ‘incompatible with the teaching of the Church of England in relation to the equality of persons or groups of different races’”.
A declaration under section 8 CDM does not involve any incompatibility with the European Convention on Human Rights. The Convention allows a church to require its clergy to behave in accordance with its teaching.”
A similar policy, but without the same statutory credentials, was adopted by the Association of Chief Police Officers in 2004 whereby “no member of the Police Service, whether police officer or police staff, may be a member of an organisation whose constitution, aims, objectives or pronouncements contradict the general duty to promote race equality”, which specifically included the British National Party.
 Dalton v Fulham (1892)  O’M & H 130.
 See also the Northern Division of Meath case (1892) 4 O’M & H 186.
 The Galway Case (1869) 1 O’M&H 303 at 305 to 307, citing the old (private law) case of Huguenin v Baseley 14 Ves 288.
 “Muslim told to “vote for mayor or be damned”, the Times, 21 August 2014 http://www.thetimes.co.uk/tto/news/politics/article4181614.ece.
 An Act for the better prevention of Corrupt and Illegal Practices at Parliamentary Elections, c61, 1883.
 The Act was the first statutory provisions which required candidates to publish their expenses.
 As in the case before the Canadian Supreme Court, Brassard et al v Langevin, (1877) 1 SCR 145, in which a priest is reported to have said: “[k]now ye well that one day God shall ask you to give an account of it before His formidable tribunal. Is it not true that on your death-bed you would reproach yourselves bitterly if your conscience should upbraid you for having contributed, by your vote, to the election of men who wish to separate the Church from the State and who are working to destroy the confidence which you are to have in the priest?”
 Cessation of access to a pew in a Nonconformist Chapel, Re: Northallerton (1870), 2 O. & H. 6.