Spiritual Injury voids Mayor’s Election

3 May 2015 by Martin Downs

Erlam et al v. Rahman et al, Richard Mawrey QC, April 2015, judgment here

The Guardian has reported that Lutfur Rahman, the former directly elected mayor of Tower Hamlets is “exploring the possibility” of judicially reviewing the judgment of the Election Commissioner, Richard Mawrey QC declaring his 2014 election void and barring him from standing in the mandated repeat of the poll.

The only surprise is the qualified nature of the statement as his website had already announced his decision to appeal two days before. This site also directs readers to a petition which describes the case as, “a politically-charged stitch up and an anti-democratic coup.” The Guardian quotes the Head of the Tower Hamlets branch of UNITE as describing the judgment as “an undemocratic assault on the people of Tower Hamlets” which was both “racist” and “Islamophobic”.

This is unlikely to come as a surprise to the Election Commissioner as, in an unusual feature of his judgment, he got his retaliation in first by incorporating an Afterword predicting that those very epithets would be aimed at him. This is all of a piece with a judgment which is replete with colourful language and begins with a rebuttal of criticisms of a previous Judgment on the Oldham East & Saddleworth election.

The master of the well-turned judicial phrase, Underhill LJ remarked that, “there is no duty to be bland” (in HM Prison Services v Johnson [2007] IRLR 951) when referring to judgment writing style, but there are dangers also – most especially the appearance of bias (see also R v Inner West London Coroner ex parte Dallaglio and Another [1994] 4 All ER 139). In this case the judgment is studded with sweeping phrases which some may find reminiscent of language redolent of a report from a District Collector to the Lieutenant-Governor of Bengal circa 1935.

The heart of the judgment is a series of findings of fact. So far as they go to the question of the presence of corruption, they are to the criminal standard of proof.

Even the Election Commissioner appreciated that one aspect of his judgment is very controversial. This concerns the provision in the Representation of the People Act 1983 which states that a person is guilty of a corrupt practice if he is guilty of undue influence. The definition encompasses the use of or threat of spiritual injury against any person in order to induce or compel that person to vote for or refrain from voting. This appears to be a remnant of attempts by Parliament to circumscribe the influence of the Roman Catholic Church in Parliamentary elections in Ireland in the 19^th century but has been preserved in the relevant legislation on each occasion it has been updated.

The Election Commissioner noted, in particular, judgments about elections in the Meath at the 1892 General Election where the results of both constituencies were set aside after considering the content of a pastoral letter by the Bishop of Meath to his diocese. This included the statement, “No intelligent or well-informed man can continue and remain a catholic so long as he elects or clings to Parnellism… I earnestly implore you then, dearly beloved, to stamp out by your votes at the coming general election, this great moral, social and religious evil.”

From this case law, the Court drew two propositions:

• While clergy are entitled to hold and express political views, they cross a line if they seek to use the power and influence of religious office to convince the faithful that it is their religious duty to vote for against a particular candidate (he adds that France also operates rules against the misuse of religious influence on electors – he omits to mention that France is a secular country in contrast to the UK where there is a state religion whose Bishops sit in the legislature); and
• The target audience matters – a distinction being drawn between a sophisticated, highly educated and politically literate community and one which is traditional, respectful of authority and possibly not fully integrated with other communities living in the same area.

As was reiterated in the judgment, Art 10 ECHR is a conditional right subject to:

“such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.”

There was also reference to Article 3 of the First Protocol to the ECHR which states:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

That it was considered is somewhat surprising as in the Prisoners’ voting case: Mclean and Cole v United Kingdom in 2013, the European Court of Human Rights had found that, “local government bodies in the United Kingdom do not form part of the legislature.”

Nevertheless the judgment shows a sharper grasp of Convention law than the Monitoring Officer of Tower Hamlets. The judgment records that when Councillors had tried to press Lutfur Rahman to answer questions in a Council meeting, the Monitoring Officer had advised that this was a breach of the Mayor’s Human Rights – a step the Court dubbed, preposterous.

The Commissioner makes a number of findings of fact which includes the fact that a third of the electorate of Tower Hamlets is from Bangladesh and is imbued with its traditional social framework and that section of the population is overwhelmingly Moslem – a faith that he says places considerable emphasis on loyalty and obedience and adds, “it is wrong therefore to treat Tower Hamlets’ Moslem community by the standards of a secular and largely agnostic metropolitan elite”

Richard Mawrey QC concluded that a letter by 101 Imams to The Weekly Desh supporting the re-election of the Mayor was only too reminiscent of the appeal by the Bishop of Meath to the electors in his diocese in 1892. This was contrasted with the intervention of Anglican Bishops in recent elections – largely on the basis that nobody paid them serious attention. There is no evaluation of the differing status of Imams to Christian Clergy or how the religions view politics.

This is a 200 page judgment. Although it is excoriating about the ex-mayor and Councillors from his party (AKA “cronies” in the colourful language of the Commissioner), it also highlights the shocking injustice suffered by Mr Rahman in the way he was denied the Labour Party nomination in the 2010 poll. Against that, the judgment concludes that Tower Hamlets First, the banner under which the Mayor and other councillors won was really a “one man band” (it didn’t even have a bank account) and the Electoral Commission have now removed it from the Register of Political Parties. The Commissioner also adjudged the Mayor and his agents to be guilty of electoral misconduct – including false registration, personation and other corrupt and illegal practices including making false statements concerning the personal character of his Labour opponent, John Biggs. The judgment also drew on the report of PWC on the distribution of grants by the Council under the Rahman Mayoralty to make findings of bribery.

The judgment lauds towering heroes (the petitioners and Deborah Cohen – the grants whistleblower) and deplores the conduct of villains. However, the judgment does contain some reflective passages in which it muses whether it is reasonable to rely on individual petitioners (risking bankruptcy along the way) to maintain the integrity of elections or whether a better system could not be devised.

The Mayor himself may also feel aggrieved by a system in which any Judicial Review will come too late to allow him to stand in the fresh election – now set for 11 June 2015.

Fresh polls do not always follow a clear narrative. After the Commissioner upheld the petitioner’s case about the election in Oldham East & Saddleworth in 2010 election, declaring that the Lib Dem candidate had been traduced and voiding the election of Phil Woolas of Labour, the electors then duly returned a different Labour MP in the subsequent by-election.

Declaration of Interest

No document concerning local government can pass without a Declaration of interest.

My colleague in Chambers, Alasdair Henderson is standing for Parliament in this General Election in the Bethnal Green and Bow Constituency as a Whig but was not consulted about this article.

The author was previously barred from the Town Hall in Tower Hamlets and suspended as a party officer for his part in organising a demonstration of homeless Bangladeshi homeless families outside the then ruling party’s annual conference. However, the fact that this was a long time ago can be judged from the fact that the Town Hall in question has long since been converted into a luxury hotel.

Sign up to free human rights updates by email, Facebook, Twitter or RSS