Declaration – *I am a resident of Tower Hamlets and have been since before the 2010 General Election. I voted in favour of a directly elected Mayor (despite knowing that it was a vehicle for Respect/Galloway etc, because I thought it was the right thing (I still do). I didn’t vote for Lutfur Rahman in 2010 or 2014 (I’m a member of the Labour Party), and wouldn’t do so if he were allowed to stand in a by-election*
So. Farewell then Lutfur Rahman. Twice elected Mayor of Tower Hamlets, and erstwhile thorn in the side of the Labour Party. After many years skating round the murkiest edges of the cauldron that is local politics in this area of inner East London, he’s finally run out of luck courtesy of Richard Mawrey QC, sitting as an Election Court.
He issued his judgment on 23rd April 2015, and it was a comprehensive demolition of Mr Rahman’s character. At 200 pages, the judgment is a long one, but a definite must-read for everyone. Apart from Mr Rahman himself, who may not appreciate some of the following comments – “Faced with a straight question, he proved himself almost pathologically incapable of giving a straight answer“, “Sadly, it must also be said that he was not truthful. In one or two crucial matters he was caught out in what were quite blatant lies“, “Again, and with regret, it must be said that his grip on reality was not always 100%” and, in what may have repercussions for his status as a solicitor, “I did not find Mr Rahman to be a reliable witness” (the judgment will be passed to the SRA).
As a consequence, the Mayoral election was voided, and Mr Rahman is not eligible to stand for the by-election, as well as being disqualified for holding office for 5 years.
Ten million words wouldn’t be enough to give a proper overview of Tower Hamlets politics. Suffice to say, they are very very different to other areas of London, and anywhere else in the UK. The judgment sets out a good overview. The Bangladeshi population of Tower Hamlets is 32%, which is the backdrop to many of the allegations and much of the findings.
The mayoral election is conducted by AV. In the election of 2010, Lutfur Rahman was ahead by 10.6% after the first round. This narrowed considerably (which is a good indicator of how divisive a figure Mr Rahman is) in the second round, but he still won by 3,252 votes (2.2%). A clear victory, but not as comprehensive as back in 2010.
One quote from Mr Mawrey that irritated me was in relation to this – “The drawback of this system is that it is possible for candidate A to receive 49.9% of the first preference against his main rival B’s 20% (or even 10%) but for B to receive all the second preference votes of the eliminated candidates and to be elected. In effect the election is won by the voters’ second choice of candidate.”
It could be said that this fundamentally misunderstands the nature of AV and how it works. It’s not perfect (STV would be better for starters) but this is a slightly concerning comment. Compare Simon Wright, who won Norwich South in the 2010 election with 29.4% of the vote. Of necessity that means that Mr Wright was the second choice of at least 70% of the electorate.
But anyway, as well a a good background to the political situation in Tower Hamlets, the history of Electoral Courts and the details of the various election offences are set out clearly and in detail.
Allegations and findings
The allegations were numerous and serious – (‘C’ = corrupt practices; ‘I’ = illegal practices):
- a) Personation contrary to s 60 of the 1983 Act (C);
- b) Voting when not entitled to do so contrary to s 61(1) (I)
- c) (Possibly) double voting contrary to s 61(2) (I);
- d) Postal vote offences contrary to s 62A (C);
- e) Tampering with ballot papers etc, contrary to s 65 (I); (proved in part)
- f) Making false statements about a candidate (in this case Mr Biggs) contrary to s 106 (I);
- g) Payment of canvassers, contrary to s 111 (I)
- h) Bribery contrary to s 113 (C);
- i) Treating, contrary to s 114 (C); (not proved)
- j) Undue influence involving the threat of spiritual injury contrary to s 115 (C); 21
- k) Undue influence involving intimidation at polling stations, voters going into polling booths together or leaving campaign material inside polling booths contrary to s 115 (C) (not proved)
- l) Undue influence involving the misleading of voters by claiming that Mr Rahman was a Labour Party candidate contrary to s 115(C);
- m) ‘General corruption’ in the Borough designed to secure Mr Rahman’s election.
Even those allegations where there were ‘acquittals’ there was not a clean bill of health by any means.
The judgment is slightly more colourful than one would normally expect from a Court of Appeal judgment (“If anyone expected, however, that the Labour Party would relish its triumph at the polls and settle down to govern the Borough in accordance with its socialist principles, they would have sadly misjudged the Tower Hamlets Labour Party” being one example amongst many).
It has been followed by the inevitable accusations of racism and racial bias. Let’s be clear about it, it’s not. But there are parts that make you cringe slightly. At para 183 for example, “it is again right to say that Islam, like many other religions, places considerable emphasis on loyalty and obedience: disloyalty to the faith – a fortiori apostasy – is treated with great seriousness. It would be wrong, therefore, to treat Tower Hamlets’ Muslim community by the standards of a secular and largely agnostic metropolitan elite“, which is a comment that could have been better phrased. There are also parts that are slightly too ‘political’ for my liking in some of the comments (see the paragraph above). Having said all of that, the Judge’s findings of fact seem unimpeachable, and on the law as it is his conclusions followed pretty clearly. What I’d like to look at is a few points of concern. Not as to how the Judge did his job, but where we could benefit from another look at the law.
Is an Election Court democratic?
Personally I don’t buy the argument of “unelected judges unseating democratically elected politicians” – it is right that someone has to adjudicate on these matters, and it has to be a Judge. There’s nothing wrong with that (in any event, if it’s such a problem, why not elect the judges of the Electoral Court? But that’s by the by).
Having said that, it is clear that there are questions as to whether the procedure is a fair and legitimate one. The very fact that a Court has to address its own legitimacy in the judgment indicates that there is a potential problem. Judges unseating elected politicians will never go down that well.
The issue that I do have is identified in para 33 “the petitioner does not have to prove that the corrupt or illegal practices were likely to have affected the result of the election. Mere proof of the practices by the candidate or his agents is sufficient to avoid the election“.
In fairness, the Judge did make a finding of general corruption, and that this may have effected the outcome of the election (which is an alternative way by which an election can be avoided). There is not a great deal of analysis here (as it was not needed), but he does state that “If a fair campaign had been mounted against Mr Biggs or if the Mayor had not sprayed public money round his core constituency or if he had not enlisted the help of the Muslim clergy to put unlawful pressure on Muslim voters, the result would have been very different“. This may or may not be true of course – what the Judge really means is ‘could’, or perhaps ‘should’, rather than ‘would’.
The point (to my mind) of an Electoral Court is to ensure the fairness of an election, a vital part of any democracy. I would question whether an election should be voided unless the Court is satisfied that the behaviour could reasonably have made a difference. Any criminal lawyer will know of the annoying experience of going off to the Court of Appeal to be told “Yes, you’re right the Judge made a mistake … but it wouldn’t have made a difference, so on your way”. Although being on the receiving end of this is a pain, and there are genuine concerns as to whether the Court of Appeal are too quick to do this, one can see the sense in it.
It is not the job of the civil courts to punish the wrongdoing of a candidate (these electoral offences can be prosecuted in the criminal courts), so one possible change that could be debated is whether a petitioner needs to show that the result would/could reasonably have made a difference, whatever is proved.
Where an election is voided, the unseated candidate cannot stand in the resulting re-run. Although this seems on the face of it a fairly obvious consequence, I actually don’t think it is right. This is a punitive action against the candidate that, if it is to be imposed, should only be imposed by a criminal court.
But surely someone who has been guilty of electoral fraud is unfit to hold office? Yes, clearly so. However, that is a judgment for the electorate, not the court. As an electorate, we shouldn’t vote for a fraudster, but if we want to (knowing that they are) then that is our lookout, and I don’t think a Court should stop this.
I realise that the problem with this is that Mr Rahman may actually win a re-run of the election (such is the basket case that is the politics of Tower Hamlets). But you know what? If we vote for him, then fair enough. It is our funeral.
The judgment does throw up some other problems with the current law (some of the ones I see are similar in some cases to the ones the Judge finds problematic) which could use another look.
Making a false statement about another candidate
Obviously in an ideal world, every candidate would be honest about their opponents. Back in the real world, this is never going to happen. Should the Election Court (as opposed to libel etc) be able to place limits on what one candidate can or can’t say about another?
It’s a tricky one. Going back to first principles, we don’t really do free speech in this country, so it’s not a surprise that the Courts give a fair amount of deference to Parliament on this (see paras 89-106 of the Phil Woolas JR following the 2010 election) – “The right of freedom of expression does not extend to the publishing, before or during an election for the purpose of affecting the return of any candidate at an election, of a statement that is made dishonestly, that is to say when the publisher knows that statement to be false or does not believe it to be true. It matters not whether such a statement relates to the political position of a candidate or to the personal character or conduct of a candidate when the publisher or maker makes that statement dishonestly. The right to freedom of expression under Article 10 does not extend to a right to be dishonest and tell lies, but s.106 is more limited in its scope as it refers to false statements made in relation to a candidate’s personal character or conduct.“
Although a call to protect the right of a candidate to be able to make “a statement that goes beyond this and is a statement in relation to the personal character of a candidate“, may seem a strange one, the line between a political and a personal statement is not easy to see. Also, the remedy (if the statement is not libellous, where other remedies are available) is to let the clash of ideas resolve it during the election period. It seems to have been agreed in the judgment that “to call a man a racist was a statement about his personal character or conduct“, which is true, but it is also a political statement. Is it worth having a debate as to where the line should be drawn.
Men of the cloth
I imagine that before this judgment, most people had not heard of the offence of ‘Undue Spiritual Influence’ (see the Law and Religion blog for a good overview). The allegation in relation to this part of the petition was that “Mr Rahman solicited and obtained the support of the clerics, largely through a close relationship between himself and Mr Hoque, the Chairman of the Council of Mosques“.
Why is this a problem? From para 161 – “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’”
The Judge here recognised that this needs to be reconsidered (para 669) to see if it is still valid in modern society. It seems to me that that has to be right, but restrictions of this kind are clearly a disproportionate interference in Arts 9 and 10 ECHR. I imagine an intervention from most religious leaders in relation to a particular candidate would have, if anything, a negative impact on them. But I don’t see why a clergyman should have to restrain themselves to a greater degree than any of their parishioners, or why a parishioner should not have the benefit of the views of they spiritual advisors.
Anyone for pork?
Politicians bribing the votes is as old as the hills. When is this astute politics and when is it bribery so as to avoid the election? I won’t go through all the allegations, they are set out in the judgement, but Mr Rahman was found to have abused his office in this may. It is summarised at para 499 -“A man in control of a fund of money, not his own, who corruptly uses his control to make payments from the fund for the purposes of inducing people to vote for him is, in the judgment of the court, within the opening words of s 113(2) and thus guilty of bribery“.
The chain of reasoning in relation to this at para 484 is compelling, but again it is not clear to me that without a finding that they were actually unlawful, this is a matter for the electorate. It shows that Mr Rahman is unfit for political office, but that is a judgment that should be passed by his constituents. This shows the need for a strong local press and strong local cabinet scrutiny of things done by any mayor, but I am concerned that the definition of bribery is potentially so wide.
Intimidation at the Polling Station
This allegation was not found proved, but it is worth noting that the Judge recommended a tightening of the rules governing the behaviour around polling stations. As someone who has voted in Tower Hamlets and in other areas of London and the wider country (not at the same time of course), I can say that it is a totally different experience here. The number of people outside, and the level of raucousness, is a sight to see.
Whilst I can see the issue, at the end of the day you go through the melee and into the calm of the polling area where you cast you vote in a secret ballot. I’m not sure either if there is a difference between a level of intimidation designed to stop people voting for Candidate X versus voting for candidate Y, but either way, it seems to me that there should be no restrictions (short of that imposed by the Public Order Act/threats of violence etc) on people as they go to vote. In any event, as was noted (para 618) “Though there was no evidence that any voter had actually been induced to change his vote from one of the other candidates to Mr Rahman or to THF,”
Lutfur Rahman is no longer mayor, and he won’t be able to be any time soon. John Biggs will likely win the re-run in June, and he will be an excellent mayor. I imagine that there will be an attempt to get a Rahman-replacement candidate to run, but I don’t know if there is enough time to organise this.
By rights, with such a damning set of allegations proved against him, Mr Rahman should be a spent force and not even be able to collect enough people to nominate him in any future election. This is Tower Hamlets however, so don’t rule anything out – including him being Mayor again. I truly hope that we don’t do that, but the judgement does raise questions as to the role of an Election Court in modern politics. Broadly speaking, it is needed, but there is perhaps not enough deference to local voters as there should be.