The Law Commission of England and Wales and the Scottish Law Commission have published their joint report on Electoral Law. One of the issues that the two Commissions have had to deal with is that of “undue influence”. Its Terms of Reference were to “review the law relating to the conduct of elections and referendums in the UK, including challenges and associated criminal offences”.

In the Tower Hamlets case – Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (QB), which we noted at the time – Mr Commissioner Mawrey QC held that a letter signed by 101 religious leaders and scholars published in a Bengali-language newspaper (with an estimated readership of 20,000) six days before polling day constituted undue influence by the threat of spiritual injury. Drawing on a series of nineteenth-century Irish cases, he summarised his view of the scope of s.115 Representation of the People Act 1983  like this:

“while clergy of all religions are fully entitled, as are all citizens, to hold and to express political views and to argue for or against candidates at elections, there is a line which should not be crossed between the free expression of political views and the use of the power and influence of religious office to convince the faithful that it is their religious duty to vote for or against a particular candidate. It does not matter whether the religious duty is expressed as a positive duty – ‘your allegiance to the faith demands that you vote for X’ – or a negative duty –’if you vote for Y you will be damned in this world and the next’. The mischief at which s.115 is directed is the misuse of religion for political purposes. A strong case can be made out for saying that the rule against misuse of religion is even more necessary in a country which prides itself on being a secular democracy than it might be in a state where there is a universal and dominant religion which is part of the fabric of society. It is noticeable that other democratic countries, such as France, operate rules against the misuse of religious influence on electors” [158]

He concluded:

“Controversial though it may be, and likely to cause offence, it is none the less the clear duty of this court to hold that the participation of the Muslim clerics in Mr Rahman’s [ie the successful candidate’s] campaign to persuade Muslim voters that it was their religious duty to vote for him and, in particular, the Imams’ letter, did, however unwittingly for most of the signatories, cross the line … between what is permissible and what is impermissible [564].

Sadly, therefore, the court feels it has no option but to find that there was undue spiritual influence contrary to s 115(2) of the 1983 Act [565]”

The reform of the s.115 offence of undue influence was the subject of recommendations by Sir Eric Pickles, which led to a Government commitment to reform it. The Pickles Report recommended “[a] lower test of ‘intimidation’ than the one currently set in the Representation of the People Act”. The reference in the Government response to “spiritual injury” indicates that the Government intends to retain the element of the current offence: on that point, the response concludes:

“We concur that the existing offence of spiritual interference should be maintained. Accepting this recommendation requires no change to existing legislation”.

The two Law Commissions, however, would prefer to see the offence described as “improper pressure”.

On the specific question of religious influence and threats of “spiritual harm”, the Law Commissions conclude as follows:

“11.51  In our view there is a continued case for proscribing interventions by people with influence over others, including religious figures, intended to manipulate voting behaviour. But, plainly, not every religious pronouncement is objectionable. Commissioner Mawrey QC’s judgment in Tower Hamlets made it clear that the clerics’ letter had crossed a line and amounted to the misuse of religion for political purposes. It is not, however, clear where section 115 of the 1983 Act draws that line.

11.52 Modern-day electorates are subjected to a range of opinions, pronouncements, admonishments, and warnings from various sections of the community. Plainly the political opinion of community or business leaders is not and should not be prohibited from being expressed. Similarly, a member of the clergy may express political as well as religious views, and is protected in doing so by articles 9 and 10 of the European Convention on Human Rights and the Human Rights Act 1998. Religious leaders’ freedom to express the tenets of their faith includes expressing a view on the compatibility with those tenets of the policies of political parties. Limitations on freedom of expression and on the manifestation of religious beliefs must be prescribed by law, and be necessary in a democratic society.

11.53  Accepting that misuses of religious influence ought to be capable of being covered by an electoral offence, the next question is whether the law should refer to such influence specifically. Our interim report recommended that it should simply be a potential form of improper pressure for the purposes of the recommendation summarised at paragraph 11.27 above. We remain of that view.

11.54  We referred above, at paragraph 11.45, to Sir Eric Pickles’ view that the potential for spiritual leaders to abuse the convictions of religious voters is unique, and that the absence of a reference to “religious/spiritual influence could reduce understanding by religious leaders of the need to express views in a responsible way”. We are not persuaded that, as a general proposition, the level of influence which can be exerted by religious leaders is unique; it can be shared by charismatic leaders of groups of various sorts. We believe that the best approach to proscribing improper pressure is to focus attention on the form of pressure applied rather than the nature of the relationship in which it is applied. We remain of the view expressed in our interim report, that it would be impossible to devise a comprehensive catalogue of such relationships and fear that instancing one particular type of relationship in statute has the potential to distort the application of the provision.