In 2015 we posted “Spiritual influence” and elections in relation to a report in The Times on the Election Court hearing of the challenge to the re-election of Lutfur Rahman as Mayor of the London Borough of Tower Hamlets and a subsequent note on the decision in Erlam & Ors v Rahman & Anor [2015] EWHC (QB) 1215. Later posts addressed spiritual influence in the context of elections within the UK.

Following the mayoral and local elections in England on 2 May 2024, The Muslim Vote, a Muslim campaign group, issued Sir Keir Starmer, Leader of the Opposition and Leader of the Labour Party, with 18 demands[*] in order to win back support lost due to his stance on Israel’s war in Gaza. The inclusion in these demands of “Remove the archaic ‘spiritual influence’ offence from statute” prompted an unexpected increase in interest in our original post in 2015. This present post provides a summary of subsequent developments.

Background

Early L&RUK posts addressed the issue of spiritual influence in relation to elections within the UK; although regulated through a specific tranche of statutory legislation, this has its origins through “a 19th Century attempt to catch abuses of authority by members of the clergy”. The offence of “spiritual injury” concerns the conduct of individuals during elections, and is one aspect of “undue influence” now included in s.115(2) Representation of the People Act 1983. The wording is virtually the same as s.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”. The Electoral Commission’s Research Paper, The Regulation of the Campaign and Electoral Offences, noted that there was little unanimity within this early case law on these issues; furthermore, the examples of “clerical intimidation” before the courts have included instances of both direct and indirect “spiritual implications”.

Recent Developments

On 8 May 2024, the House of Commons Library issued Intimidation of candidates and voters (“the Briefing”), which summarizes recent developments. Included in this briefing is an examination of “undue influence”, the electoral offence of intimidating voters – one of the “classic” electoral fraud crimes that date from the Victorian era, when electoral fraud was commonplace.

In 2016 the Law Commission recommended that the law on undue influence should be modernised. It said that it should be restated as an offence of intimidation, deception, and improper pressure on voters. Also in 2016, Lord Pickles issued the independent report commissioned by the then Prime Minister,[**] Securing the Ballot, which recommended changes to the offence of “undue influence”; and the Government’s 2018 consultation, Protecting the Debate: Intimidation, Influence, and Information, included questions on the scope of undue influence. It intended to maintain the general purpose of the offence, that it should refer to threats of violence, non-physical threats of harm, and duress, including from people in positions of power such as faith leaders.

This led to provisions in the Elections Act 2022 which modernised the definition of undue influence for reserved elections. However, elections to the Scottish and Welsh parliaments and Scottish and Welsh local councils retain the old definition.

Elections Act 2022

The Elections Act 2022 updated the wording of the electoral offence of undue influence. Like other aspects of the Elections Act, it only updated the law for reserved elections (those under the jurisdiction of the UK Parliament, such as parliamentary general elections). The new wording in s.8 of the 2022 Act was inserted into the main piece of legislation, as s.114A Representation of the People Act 1983, which sets out the activities that fall within the offence. These include “(e) causing spiritual injury to, or placing undue spiritual pressure on, a person”. 

Consequently, the new definition only applies to reserved elections  and excepted elections in Northern Ireland; the 1983 Act still retains the definition that had been in place since 2006 (the last time the definition was revised). This remains as s.115, but amended to apply only to local government elections in Scotland and Wales. The offence of “undue influence” for other devolved elections is in other legislation (these correspond with the definition in section 115 of the 1983 Act):

• Rule 77 Scottish Parliament (Elections etc.) Order 2015 applies to Scottish Parliament elections.
• Rule 81 National Assembly for Wales (Representation of the People) Order 2007 applies to Senedd Cymru elections.

Disqualification orders

A disqualification order disqualifies the person convicted from holding elected office for five years. It applies to all elected offices in the UK except for membership of the Scottish Parliament and Scottish local government. The disqualification order is an “ancillary order” that the court can apply in addition to a sentence if the conditions are met.

The UK Government had intended the new disqualification orders to apply to all elections. The Scottish and Welsh governments and parliaments are each responsible for legislating for their own local elections and elections to their devolved parliaments. Both initially refused to grant legislative consent motions to the Bill that went on to become the Elections Act 2022 because it contained provisions on devolved elections.

The new penalty took effect on 1 November 2023.

Updated: 9 May 2024 at 06:25.

[*] The eighteen demands as reported in The Independent included: [6]. Issue of guidance that Muslims are allowed to pray at school; [8]. Removal of the extremism definition that Michael Gove introduced; [9]. Commitment to full implementation of Royal Charter re media regulation; [10]. Adoption of the APPG definition of Islamophobia; [18]. Removal of the archaic “spiritual influence” offence from statute.

[**] i.e. a report to government, not a report of government.