Implications of independent report on electoral fraud and “undue spiritual influence”
On 12 August, the Cabinet Office published the independent report (*the Report”) of Sir Eric Pickles, former Secretary of State for Communities and Local Government. Sir Eric had been asked by the previous government to consider what further changes were needed to make the electoral system more secure in light of the 2015 Tower Hamlets election court judgment and the consequent disqualification of the elected mayor for a number of corrupt and illegal practices. The Report, Securing the Ballot, includes recommendations about how the government can prevent such crimes in the UK.
The Tower Hamlets judgment, Erlam & Ors v Rahman & Anor  EWHC (QB), addressed a number of aspects of election law in relation to a petition brought by four members of the public, electors of the Borough of Tower Hamlets, under s128(1) of the Representation of the People Act 1983: one of the thirteen corrupt or illegal practices alleged in the petition related to “undue spiritual influence”.
Status of the Report
By referring to the document as an “independent report”, the Cabinet Office Press Release underlines the fact that this is a report to government rather than a report of government; this is reflected in its foreword, signed by Sir Eric as Government Anti-Corruption Champion, which concludes “I hope the new Prime Minister will take forward this work: for the best interests of the British public and to ensure a democracy of which we should all rightly be proud”. Consequently, it does not represent government policy and there has been no indication of whether any of the recommendations will be progressed; however, parliamentarians with an interest in this area are likely to probe ministers through parliamentary questions &c. Nevertheless, its Recommendation R41 on page 6 is quite clear:
“The offence of undue influence should retain a reference to spiritual/religious influence”
Other considerations of “spiritual/religious influence”
In February last year, our post “Spiritual influence” and elections considered the early case law and the current statutes relating to “spiritual injury” within the Representation of the People Act 1983, as amended:
“115. Undue influence
(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.
Strictly, therefore, the offence is of “making or threatening undue influence through spiritual injury, either directly or indirectly”; whilst “undue spiritual influence” is a convenient shorthand, it tends to detract from the “spiritual injury” aspect of the offence and how making or threatening “undue influence” might be assessed by the court, if this indeed remains relevant today.
An earlier post noted the work of the Electoral Commission’s Research Paper The Regulation of the Campaign and Electoral Offences and its joint consultation with the Scottish Law Commission and the Northern Ireland Law Commission, Electoral Law; the latter reviews UK electoral law, including “spiritual influence”, and makes provisional proposals or asks questions about its reform. The consultation document stated:
“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.
The Law Commission recommended that the offence should be restated to cover “intimidation”, “deception” and “other improper pressure” and proposed that it should include a test of “pressure which a reasonable person would regard as improperly impeding the free exercise of the franchise”. Ironically, the present wording is not dissimilar to s 2 Corrupt Practices Act 1883, itself taken from the Corrupt Practices Act 1854, but substituting the words “temporal or spiritual injury,” in place of ”intimidation”.
We gave an overview of the legislation in “Spiritual influence” and elections and covered Erlam & Ors v Rahman & Anor in our posts here and here. Richard Mawrey QC, who presided over the Tower Hamlets case, commented that “the relevant part of] s115 cannot properly … be considered a dead letter or obsolete” , on the basis that:
“149. … s 115 has a long legislative history. On each occasion that election law has been consolidated and updated … these provisions have been considered by Parliament at least twice since the Second World War and it was not thought appropriate to delete reference to spiritual injury; and
150. The general rule of English law is that, if a statutory provision is considered and construed by the courts in reported cases, then when that provision comes to be re-enacted or consolidated … the provision in relation to undue spiritual influence has been carried forward from statute to statute for well over a century, Parliament must be assumed to have approved the construction placed on it by the courts during that period.”
Furthermore, he concluded:
“669. Again, undue spiritual influence (which is always going to be controversial) needs reconsideration. If it is to be retained (and the court is neutral on that topic), it should be more clearly articulated and, if thought appropriate, re-stated for a 21st century environment”.
Consideration within Securing the Ballot
As noted above, “spiritual influence” comprised only part of the Report’s considerations; its conclusions on these aspects are summarized in four paragraphs [emphasis added]:
“196. The law on undue spiritual influence dates from the late 19th Century and cases mainly relate to the influence of the Roman Catholic clergy in Ireland during that period. In modern society, there continues to be the potential for spiritual leaders to abuse their influence and authority among those with deep religious convictions in order to secure votes for a particular candidate, as seen in Tower Hamlets. Richard Mawrey QC who presided over the Tower Hamlets case suggested that the offence needed to be more clearly articulated, and if thought appropriate, re-stated for a 21st Century environment.
197. The Law Commission considered that the offence of undue influence sought to proscribe “improper pressure” with a view to preventing the improper use of religious or other influence or authority so as to manipulate voting. They recommended that it should be restated to cover “intimidation”, “deception” and “other improper pressure”, and proposed that it should include a test of “pressure which a reasonable person would regard as improperly impeding the free exercise of the franchise”. They argued that this test would enable campaigners, the police, prosecutors and courts to distinguish proper campaigning from improper infringements on the exercise of the franchise.
198. Although the Law Commission’s aim in redrafting undue influence is intended to promote better understanding of the offence, the loss of a specific reference to religious / spiritual influence could reduce understanding by those in positions of religious authority of the need to express political views in a responsible way (so as not to distort the will of voters), and could increase reluctance on the part of those who police electoral fraud to act on abuses. The potential for spiritual leaders, through their pronouncements, to abuse the convictions of religious voters is unique and does not exist in relation to statements by other authorities such as the media, business or other special interest groups whose statements seek to persuade people to vote for a particular candidate. The latter’s statements can be readily dismissed by any voter as opinion, whereas those of spiritual leaders may cause religious voters to believe they have no real choice in how they should vote. In the Tower Hamlets case, the Election Court heard how a voter was seen crying outside a polling station after allegedly being told by a supporter of Lutfur Rahman that it was ‘un-Islamic’ not to vote for Rahman, and that you were ‘not a good Muslim’ if you did not vote for him. The court found that Muslim clerics had participated in Lutfur Rahman’s campaign to persuade Muslim voters that it was their religious duty to vote for him.
199. The potential for spiritual influence to be exercised in society may be increasing, and it is important that the legislation unambiguously protects voters of any faith from having their religious beliefs manipulated in order to prevent them freely exercising their vote. Bullying a voter by asserting that they will ‘burn in hell’ for not supporting a candidate is ultimately no different from threatening physical violence or from an employer threatening to sack a worker. Freedom of worship and the right to vote are important and hard-fought British liberties. Britons should be able to exercise both those liberties without injury or intimidation.”
Spiritual Influence and Article 10 ECHR
In Erlam & Ors v Rahman & Anor, the Election Commissioner observed:
“160. Very little argument was directed to the potential effect of Art 10 of the ECHR on this aspect of electoral law or as to its interaction with Art 9 (religious freedoms) and Art 3 of the Protocol (free and fair elections). The court proposes to adopt the approach of the Divisional Court to Art 10 in Woolas…In applying Art 10, therefore, a balance must be struck between the right of free speech itself and the competing rights and obligations that arise in a democratic society.
161. In the case of undue spiritual influence, the balance is very well articulated by the judgment of Fitzgerald J in Longford albeit written some three-quarters of a century before the ECHR was even contemplated. The priest or other religious authority has the right of the ordinary citizen to hold and express political views and the law will protect that right. There is, as has been said, a line beyond which the priest may not go and that line is reached when the priest uses his religious and moral influence to attempt to ‘appeal to the fears, or terrors, or superstition of those he addresses’, to ‘hold hopes of reward here or hereafter’, or to ‘denounce the voting for any particular candidate as a sin, or as an offence involving punishment here or hereafter’.”
In view of his interest as “a parish priest and a journalist who regularly comments on moral and political issues, including during election campaigns”, the Rev Dr Giles Fraser sought counsel’s opinion on “the interpretation and application of s 115 Representation of the People Act 1983 (“the 1983 Act”) as it relates to “undue spiritual influence” by members of the clergy during election campaigns”. Unlike the Report and Law Commission’s recommendations, this was directed at the current legislation. The opinion was broadly critical of the Mawrey judgment, noting:
“36. Article 10 confers two separate rights, a right to impart information and ideas and a correlative right to receive them. The prohibition in S115 interferes with both the former (in the case of members of the clergy) and the latter (in the case of members of their congregations).
38. The European Court of Human Rights (ECtHR) has repeatedly held that political expression enjoys a high degree of protection under the Article 10. As a result, there is in general relatively little scope for restricting political speech or debate on matters of public interest.
42. … insofar as s 115 is interpreted as imposing special restrictions on members of the clergy, it would be necessary to establish that there are good reasons to single them out for special restrictions. Even if there were good reasons in the late nineteenth century, it is very doubtful that it remains appropriate to regard members of the clergy as occupying so uniquely authoritative a position as to justify imposing special restrictions on their speech during election campaigns. If, on the other hand, S115 were read as imposing similar restrictions on anyone using power and influence to persuade, it would represent an extraordinarily broad – and vague – restriction on freedom of expression during an election campaign.”
It concludes in that the judgment “misstates and misapplies the prohibition on undue spiritual influence in s 115 of the 1983 Act” .
Securing the Ballot is essentially an independent policy recommendation of no official standing. Although it benefited from 66 written submissions from individuals and organisations, some of which (presumably) raised legal issues relating to undue spiritual influence, paragraphs 196 to 199 do not allude to any legal analysis of the associated issues. Whilst “the potential for spiritual influence to be exercised in society may be increasing”, to date the Election Courts have only addressed spiritual influence in relation to voting in two cases: Tower Hamlets and Washwood Heath, Birmingham where the claims of Shamsur Rehman, (LD), against his Muslim rival, Ansar Ali Khan (Lab), were dismissed. In both cases, the actions were brought by private individuals or groups of individuals, in line with the Law Commission’s view [at 1.48] that “[I]t is questionable whether a public prosecution would be brought on [the basis of the present legislation]”.
In addition to Sir Eric’s assertion about the increase of “spiritual influence”, (which may or may not be the case), the problem with his conclusion is the justification for retaining the offence in its current form, viz. “spiritual leaders may cause religious voters to believe they have no real choice in how they should vote”. As Martin Chamberlain QC pointed out:
“There is no need to read s 115 in this radically indeterminate way [i.e. that adopted by Richard Mawrey]. If one concentrates on the need to show ‘spiritual injury, damage, harm or loss’ – actual or threatened – with the relevant intention, the decision about what can be included … becomes much clearer” .
The introduction of the Law Commission’s recommendation, above, with an accompanying test of “improperly impeding the free exercise of the franchise”, would clarify the position of the Election Commissioner in his/her determination of whether any “undue influence” had been exercised by anyone during an election campaign, whether perceived to have been in an authoritative position or not.
Ironically, the problem could have been addressed by the actions of Lutfur Rahman himself since “undue spiritual influence” was the only aspect of the Mawrey judgment on which he was granted leave to apply for Judicial Review; however, this option is now out of time.
Given its “maintain the status quo” conclusion, there is a possibility that Sir Eric’s conclusions might be destined for the government’s “Pending/Do Not Disturb” tray, along with caste discrimination, cohabitation, lack of burial space &c. However, should the government decide to act, the Law Commission’s suggestions require only a change the wording of s 115 of the 1983 Act and empowerment of the Secretary of State to produce guidance.