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The Representation of the People Act 1983

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The law of “undue spiritual influence” during election campaigns

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OPINION __________

Introduction and summary

1 I am asked to advise the Rev. Dr Giles Fraser on the interpretation and application of s. 115 of the Representation of the People Act 1983 (the 1983 Act) as it relates to “undue spiritual influence” by members of the clergy during election campaigns. Dr Fraser’s interest in this issue arises because he is both a parish priest and a journalist who regularly comments on moral and political issues, including during election campaigns.

2 The issue on which I am asked to advise was one of many considered by Mr Richard Mawrey QC sitting as an Election Commissioner to try an election petition in respect of the mayoral election in the London Borough of Tower Hamlets on 22 May 2014. In a judgment handed down on 23 April 2015,1 Mr Mawrey declared the election of Mr Lutfur Rahman void because of corrupt and illegal practices. One of these practices, which Mr Mawrey found proved, involved the publication in a local newspaper of a letter from a group of imams urging Muslims to vote for Mr Rahman. This, he held, amounted to “undue spiritual influence” contrary to s. 115 of the 1983 Act.

3 Mr Rahman has announced his intention to challenge Mr Mawrey’s decision. Challenges to the decisions of local election courts are by way of judicial review.2 Mr Rahman’s prospect of obtaining permission to apply for judicial review will be likely to depend on establishing an error of law that could have affected the result.

1 Erlam v Rahman [2015] EWHC 1215 (QB). 2 See s. 145 of the 1983 Act and R (Woolas) v The Parliamentary Election Court [2010] EWHC 3169 (Admin), at [56].

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Given recent statutory changes to the judicial review jurisdiction of the High Court,3 it would not necessarily be sufficient to show that Mr Mawrey’s conclusions on undue spiritual influence were arguably wrong in law if his other reasons were (i) not arguably vitiated by any legal error and (ii) sufficient on their own to avoid the election. I am not asked to, and do not, comment on these other reasons for holding the election void. What follows should not, therefore, be taken to indicate any view, one way or the other, on the likelihood of permission to apply for judicial review, or substantive relief, being granted in respect of Mr Mawrey’s decision.

4 On the single issue with which I am concerned,4 I can summarise my views as follows:

4.1 Section 115 of the 1983 Act creates the criminal offence of “undue influence”, which is committed by anyone who (among other things) “directly or indirectly, by himself or by any other person on his behalf… 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”.

4.2 On the plain words of s. 115, conduct is not prohibited unless it involves inflicting or threatening to inflict temporal or spiritual injury, damage, harm or loss.

4.3 In considering what type of conduct falls within that definition, two common law principles of statutory construction are relevant. The first is the principle against doubtful penalisation. The second is the principle of legality. Both point to a narrow construction.

3 See esp. s. 31(3C)-(3F) of the Senior Courts Act 1981, as inserted by s. 84 of the Criminal Justice and Courts Act 2015. 4 Prior to Mr Mawrey’s decision, the English, Scottish and Northern Irish Law Commissions had issued a joint consultation document on the question whether the existing law of undue influence during elections should be reformed: see LCCP 218/SLCDP 158/NILC 20. No concrete proposals have yet been made as a result of this consultation.

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4.4 In any event, by virtue s. 3 of the Human Rights Act 1998 (the HRA), s. 115 must, so far as possible, be read compatibly with Article 10 of the European Convention on Human Rights (ECHR) (which guarantees the rights of the clergy to freedom of expression and the rights of members religious communities to receive the views of their religious leaders) and Article 14 ECHR (which guarantees the right to enjoy that freedom without discrimination on grounds of religion or membership of a profession).

4.5 The prohibition in s. 115 can and should be read narrowly so that a member of the clergy might commit the offence by urging his congregants to vote for or against a particular candidate on pain of excommunication or expulsion from a religious group. But there would be no offence in merely expressing a view about the merits of a candidate at an election; nor in urging congregants or others to vote for or against a particular candidate; nor in asserting a moral or religious duty to vote for or against a particular candidate.

4.6 Mr Mawrey’s construction of the prohibition in s. 115 is much broader. He considers that an offence may be committed where a member of the clergy uses “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”: see [158]. If that were right, it would be very difficult to predict in advance whether making a particular statement would or would not amount to the commission of the offence. This would constitute a disproportionate and impermissible interference with the right to freedom of expression, guaranteed both by the common law and by Article 10 ECHR, and with Article 14 ECHR.

The decision in the Rahman case

5 The decision arose from an election petition under Part III of the 1983 Act. Mr Mawrey upheld the petition and declared the election void under ss. 159(1) of the 1983 Act. He found that Mr Rahman and his agents had engaged in various corrupt and/or illegal practices5 and that these practices so extensively prevailed that they

5 The following corrupt and/or illegal practices were held to be made out on the facts: provision of false information contrary to s. 13D(1); false voting contrary to s. 61(1); personation contrary to s. 60; postal

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may reasonably be supposed to have affected the result of the election: see the formal conclusions at [672]-[673].

6 One of the corrupt practices which Mr Mawrey found to be established on the facts was “undue influence involving the threat of spiritual injury” contrary to section 115 of the 1983 Act: see the summary of the practices alleged at [62(j)].

7 Section 115 provides:

“(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 electors, or so compels, induces or prevails upon, or intends so to compel, induce or prevail upon, an elector or proxy for any elector either to vote or to refrain from voting.”

8 By s. 168(1) of the 1983 Act, a corrupt practice (as well as providing grounds for avoiding an election) is an offence punishable by imprisonment or a fine or both.

9 The primary factual basis for the Commissioner’s finding of undue spiritual influence was a letter signed by a group of imams and other senior Muslim leaders endorsing the candidacy of Mr Rahman and calling on voters to support him. This letter, written in Bengali, was published in the Weekly Dash (a local newspaper with a circulation of approximately 20,000) six days before the mayoral election.

voting offences contrary to s. 62A; making false statements about a candidate contrary to s. 106; payment of canvassers contrary to s. 111; bribery contrary to s. 113; undue influence involving the threat of spiritual injury contrary to s. 115.

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The letter, which is quoted in full in paragraph [549] of the judgment, included the following:

“We observe that some people are targeting the languages, colours and religions and attempting to divide the community by ignoring the cohesion and harmony of the citizens. This is, in fact, hitting the national, cultural and religious ‘multi’ ideas of the country and spreading jealousy and hatred in the community. We consider these acts as abominable and at the same time condemnable…

As a cognisant group of the community and responsible voters for the sake of truth, justice, dignity and development we express our unlimited support for Mayor Lutfer Rahman and strongly call upon you, the residents of Tower Hamlets, to shun the propagandas and slanders and unite against the falsehood and injustice.”

10 In reaching his conclusion on undue spiritual influence, Mr Mawrey relied heavily on two Irish cases from the late nineteenth century (the County Meath cases).6 Both involved parliamentary elections that were set aside on the grounds of undue spiritual influence. The spiritual influence in issue took the form of a pastoral letter written by Dr Nulty, the Roman Catholic Bishop of Meath, calling upon voters to reject Parnellism (a political ideology named after Charles Stuart Parnell, advocate of Home Rule and land reform) as incompatible with the tenets of Roman Catholicism. Excerpts from Dr Nulty’s letter are quoted at [155] of Mr Mawrey’s judgment as follows:

“Now Parnellism strikes at the root, and saps the very foundations of the Catholic faith … all the successors of the Apostles have solemnly warned and taught their respective flocks that Parnellism was unlawful and unholy, that it was in distinct, direct, and essential antagonism with the principles of Christian morality, and even dangerous to their faith as Catholics, and consequently that they should shun and avoid it. They who refuse to accept that teaching or that principle on the unanimous authority of the whole Irish hierarchy deprive themselves of every rational ground or motive for believing in the truth of any of the other doctrines of religion… [N]o intelligent or well-informed man can continue and remain a Catholic so long as he elects to cling to Parnellism… I earnestly implore

6 Southern Division of the County of Meath (1892) 4 O’M & H 130 and Northern Division of the County of Meath (1892) 4 O’M & H 185.

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you then, dearly beloved, to stamp out by your votes at the coming election, this great moral, social and religious evil.”

11 The judge in the County Meath cases, Andrews J, concluded that Dr Nulty’s letter amounted to undue spiritual influence because members of the Roman Catholic Church held the teachings of their clergy in high regard and because the letter “plainly threaten[ed] with spiritual injury and loss those electors who should vote in support of the Parnellite candidate.”7 Andrews J did not spell out what this “spiritual injury and loss” was.

12 Mr Mawrey extracted from these cases some general principles:

“What principles emerge from the Irish cases? The first is that, 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…

The second thing we get from the Irish cases is that the question of spiritual influence cannot be divorced from a consideration of the target audience. Time and again in the Irish cases it was stressed that the Catholic voters were men of simple faith, usually much less well educated than the clergy who were influencing them, and men whose natural instinct would be to obey the orders of their priests (even more their bishops). This principle still holds good. In carrying out the assessment a distinction must be made between a sophisticated, highly educated and politically literate community and a community which is traditional, respectful of authority and, possibly, not fully integrated with the other communities living in the same area. As with undue influence in the civil law sphere, it is the character of the person sought to be influenced that is key to whether influence has been applied.”

13 Mr Mawrey then applied these general principles to the facts before him, and in particular the letter from the imams. At [551], he said:

“What is this document? Although written in a foreign language by clerics of a different faith, Dr Nulty would have had no difficulty in recognising this document. It is a pastoral letter, remarkably similar to his letter to the faithful of County Meath and published in the Drogheda Independent on 2

7 See Southern Division of the County of Meath at 140-141, quoted by Mr Mawrey at [156].

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July 1892. In other words it is a letter from an influential cleric – in this case 101 influential clerics – informing the faithful as to their religious duty. As with the Bishop, the Imams’ message is clear; our religion is under attack, our enemies despise us and wish to humiliate us; it is your duty as faithful sons and daughters of the [Church] [Mosque] to vote for candidate X: only he will defend our religion and our community. As the Imams’ letter puts it ‘[our opponents are] spreading jealousy and hatred in the community. We consider these acts as abominable and at the same time condemnable.’ The Bishop could not – indeed did not – express it more succinctly.”

14 At [563], Mr Mawrey concluded:

“[N]o meaningful distinction can be drawn between the conduct of Mr Hoque and the others responsible for organising the Imams’ letter and that of the Bishop of Meath.”

The relevance of the County Meath cases

15 As can be seen from the passages cited above, Mr Mawrey’s conclusion on undue spiritual influence rested in large part on the analogy he drew between the letter from the 101 imams and Dr Nulty’s letter in the Country Meath cases. At [150], Mr Mawrey summarised what he considered to be the relevant the principle of statutory construction as follows:

“It should also be stated that 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, Parliament has a choice. It can either reject the construction placed on the provision by the courts and replace the provision with one which represents Parliament’s true intentions or it can re-enact the provision unchanged. If Parliament chooses the latter course, it is taken to have adopted the provision with its judicial construction, so to speak, built in. As, therefore, 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 [sc. the late nineteenth century].”

16 This appears to be a reference to the principle described by Lord Macmillan in Barras v The Aberdeen Steam Trawling and Fishing Co Ltd [1933] A.C. 402, at 446:

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“[W]here the language of a statute has received judicial interpretation, and Parliament again employs the same language in a subsequent statute dealing with the same subject matter, there is a presumption that Parliament intended that the language so used by it in the subsequent statute should be given the meaning which meantime has been judicially attributed to it. Parliament, in short, is to be presumed to have given statutory effect to the judicial interpretation so as to render it as binding on the Courts as if it had been expressly enacted in an interpretation section.”

17 This principle – known as the Barras principle – has been recently reaffirmed by the Supreme Court in CN v Lewisham LBC [2014] 3 WLR 1548. See in particular the judgment of Lord Hodge (with whom Lord Wilson, Lord Clarke and Lord Toulson agreed) at [53]:

“[W]here Parliament re-enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re-enacted provision to bear the meaning that case law had already established…”

18 But there are two points to note about the principle. First, it applies to “authoritative judicial interpretations” – ie authoritative judicial statements about the meaning to be ascribed to statutory words. It does not require and has never required courts to assume that every case in which the relevant language was applied to a set of facts was correctly decided, far less to assume that the court is bound to reach the same result whenever there is an analogous set of facts.

19 I think it doubtful that the County Meath cases can be properly regarded as containing any judicial interpretation of the relevant statutory words at all. Andrews J made a finding of fact that Dr Nulty’s letter “plainly” made threats of spiritual injury, but a finding of fact is not a “judicial interpretation”, let alone an authoritative one, and Andrews J did not purport to construe “spiritual injury”.8

20 Secondly, and in any event, the Barras principle is not an inflexible rule. As Lord Macmillan stated in Barras itself at 446-447:

8 The closest to a judicial interpretation of “undue influence” that can be found in the case law comes from an English case, Lichfield (1869) 2 O’M. & H. 25. Willes J explained that “undue influence” in the context of what is now s. 115 of the 1983 Act must involve some assault on the free will of another. He said: “The proper definition of undue influence is using any violence, or threatening any damage, or resorting to any fraudulent contrivance to restrain the liberty of the voter, so as either to compel or frighten him into voting or abstaining from voting otherwise than as he freely wills.”

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“If this rule were to be treated as a canon of construction of absolute obligation I can see that it might have very far-reaching and possibly undesirable consequences… In my view the rule of interpretation which I am discussing affords only a valuable presumption as to the meaning of the language employed in a statute.”

21 In my view, there are in this case other presumptions of greater force and relevance tending in the other direction. Before considering these, however, it is necessary to start with the language of s. 115 of the 1983 Act.

The language of the statute

22 The first step in determining the meaning of a provision is to consider the natural or ordinary meaning of the statutory language; it is only when that meaning leads to some result that cannot reasonably have been intended that it is proper to look for an alternative meaning.9

23 Section 115 on its face requires that, in order for undue spiritual influence to be made out, some “spiritual injury, damage, harm or loss” must have been inflicted or threatened. But there is nothing in the quoted passages from the imams’ letter that could reasonably be interpreted as inflicting or threatening any injury, damage, harm or loss. The letter did not, for example, threaten any punishment (whether here or hereafter) for Muslim voters who failed to support Mr Rahman’s candidacy, nor did it threaten exclusion from the religious community. At most, it sought to persuade Muslim voters in the Borough that good Muslims should vote for Mr Rahman. In this respect, it is difficult to see why it should be regarded any differently from a letter from a group of doctors urging voters to vote for or against a particular candidate or party so as to protect the NHS, or a letter from a group of business people urging voters to vote for or against a particular candidate or party for economic reasons.10

9 See, for example, Pinner v Everett [1969] 1 W.L.R. 1266, per Lord Reid at 1273. 10 For recent examples of persuasive speech in the context of the 2015 General Election, on 7 April 2015 The Guardian published a letter signed by more than 100 leading doctors accusing the coalition Government of endangering the NHS and urging voters “to use their vote to ensure that the NHS in England is reinstated”: see http://www.theguardian.com/society/2015/apr/07/senior-doctors-assess-governments-record-on-nhs-letter-in-full. On 27 April 2015, The Telegraph published a letter signed by 5,000 people describing themselves as small business owners expressly endorsing the Conservative Party:

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24 Mr Mawrey seemed to think that the distinguishing feature lay in the susceptibility of those reading the letter to influence from their clergy. But there is nothing in the language of s. 115 to suggest that the susceptibility of those upon whom influence is brought to bear is relevant to the question of whether the offence has been committed. If a threat of (say) ex-communication were made with the relevant intention, the offence would have been committed; and it would be no answer that the threat was unlikely to achieve its intended effect. By the same token, there is nothing to indicate that an offence is more likely to be committed simply because those listening are susceptible to clerical influence.

25 There is certainly nothing in the statutory words to suggest that a letter containing no express or implicit threat could be regarded as giving rise to undue influence simply because (as Mr Mawrey found at [561]) the “traditionalist and pious Muslim voters of Tower Hamlets are going to accept the word of their religious leaders as authoritative”. It is an accepted part of the electoral process that candidates will seek endorsements from people (including actors, comedians or sports stars) who they perceive to be authoritative in the eyes of some section or other of the voting community.11 If Mr Mawrey’s interpretation of s. 115 were correct, endorsements of this kind would presumably also run a risk of incurring criminal liability: the more authoritative the endorser, the greater the risk. This seems to me a powerful indicator that Mr Mawrey’s interpretation is too broad.

The principle against doubtful penalisation

26 It is a well-established principle of statutory construction that a person should not be penalised except under clear law; or, as it is sometimes put, a person should not be put in peril on an ambiguity.12 This principle, which does not appear to have figured in Mr Mawrey’s reasoning, is of particular relevance in the present circumstances.

http://www.telegraph.co.uk/news/politics/conservative/11564897/Exclusive-letter-to-The-Telegraph-from-5000-small-business-owners-who-back-the-Tories.html). 11 For example, Russell Brand is no doubt regarded as “authoritative” by some sections of the voting public. But, even if it could be shown that some people were likely to find him very persuasive, it would be odd to suggest that his endorsement of the Labour Party was improper or corrupt. 12 See eg Bennion on Statutory Interpretation, 5th ed., p. 287; R v Z [2005] 2 AC 645, per Lord Bingham at [16].

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27 On the construction favoured by Mr Mawrey, the s. 115 offence is committed by “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” (see [158]); and the susceptibility of those on whom the influence is brought to bear is relevant. But this makes it very difficult to predict whether a particular statement will or will not fall foul of the prohibition. A priest preparing a weekly sermon during an election campaign would have to ask a series of questions to which the answers might be less than obvious. How sophisticated are my congregation? Are there some members of it who are less sophisticated? How much power and influence do I have over them? Are they likely to be so swayed by what I say that they will accept it uncritically?

28 There is no need to read s. 115 in this radically indeterminate way. 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 in the sermon becomes much clearer. There must, for example, be no ex-communication or exclusion from the community – and no threat of these. But, provided that no “injury, damage, harm or loss” is inflicted or threatened, the priest is just as free as anyone else to say (for example) that a vote for a particular candidate would be incompatible with moral or religious principle.

29 Adopting the latter construction does not remove all difficult cases. There remains a penumbra of doubt over the case where a priest says that a vote for a particular candidate would give rise to consequences in the afterlife. Is the priest threatening these consequences, or merely warning of them? But, notwithstanding the existence of these few difficult cases, the narrow construction outlined in §28 above seems to me to give rise to considerably less ambiguity and uncertainty than Mr Mawrey’s broader one.

The principle of legality

30 More recently, the courts have articulated an equally important common law principle of statutory construction: the principle of legality. The content of this principle was described by Lord Hoffmann in R v Secretary of State for the Home Department ex p. Simms [2000] 2 AC 115, at 131:

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“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”13

31 Freedom of expression is a fundamental right recognised by the common law: see eg Simms per Lord Steyn at 126.

32 In this case, the principle of legality means that – to the extent that there is any ambiguity – s. 115 must be read as restricting freedom of expression to the minimum possible extent.

33 This too seems to me to militate strongly against Mr Mawrey’s construction.

The obligation to read s. 115 compatibly with the Convention rights of members of the clergy and their congregations

34 Section 3 of the HRA provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

35 Among the Convention rights are those conferred by Article 10 ECHR, which provides:

13 The principle has been affirmed on numerous occasions since, most recently by the Supreme Court in R (Evans) v Attorney General [2015] 2 WLR 813 per Lord Neuberger at [56].

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“(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

36 Article 10 confers two separate rights, a right to impart information and ideas and a correlative right to receive them. The prohibition in s. 115 interferes with both the former (in the case of members of the clergy) and the latter (in the case of members of their congregations).

37 Also relevant is Article 3 of the First Protocol to the ECHR, which provides:

“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.”

38 The European Court of Human Rights (ECtHR) has repeatedly held that political expression enjoys a high degree of protection under the Article 10.14 As a result, there is in general relatively little scope for restricting political speech or debate on matters of public interest.15

39 In Bowman v United Kingdom (1998) 26 EHRR 1, the ECtHR emphasised the particular importance of allowing information and opinions of whatever kind to

14 See eg Lingens v Austria (1986) 8 EHRR 407 at [42]: “[F]reedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.” See also Handyside v United Kingdom (1976) 1 EHRR 737 at [49]: “Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.” 15 See Wingrove v United Kingdom (1996) 24 EHRR 1 at [58]: “[T]here is little scope under Article 10 para. 2 of the Convention for restrictions on political speech or on debate of questions of public interest.”

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circulate freely during the period immediately before an election.16 However, it went on to note that “in certain circumstances… it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the ‘free expression of the opinion of the people in the choice of the legislature’”. In striking the balance between these two rights, States are accorded a margin of appreciation (though in the Bowman case itself, the margin was exceeded).17

40 The Grand Chamber of the ECtHR has recently reaffirmed these statements from the judgment in Bowman and, more generally, the importance of according States a margin of appreciation in imposing controls designed to safeguard the integrity of the democratic process.18

41 But, even where a margin of appreciation applies, in order to satisfy Article 10(2), any restriction on freedom of expression must (i) be prescribed by law; (ii) pursue a legitimate aim; and (iii) be necessary in a democratic society.19

42 As to (i), the phrase “prescribed by law” imports the general Convention requirement of legality – ie the requirement that any restriction of a fundamental right be specified by domestic law that is accessible and clear, in the sense that it is “formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct”.20 If Mr Mawrey’s interpretation of s. 115 were correct, I do not think this requirement would be satisfied. For the reasons given in §27 above, it would be impossible for a member of the clergy to foresee

16 See at [42]: “Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system… freedom of expression is one of the ‘conditions’ necessary to ‘ensure the free expression of the opinion of the people in the choice of the legislature’… For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely.” 17 Ibid, at [43]. 18 Animal Defenders International v United Kingdom (2013) 57 EHRR 21, at [111]. 19 See eg R v Shayler [2003] 1 AC 247, per Lord Bingham at [23]. 20 See Gillan v United Kingdom (2010) 50 EHRR 1105, at [76]; R (T) v Chief Constable of Greater Manchester Police [2015] AC 49, per Lord Wilson at [30]. Both these were cases concerning the “according to law” requirement in Article 8(2) ECHR, but it is well established that the substance of the requirements is the same.

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with any precision, even with advice, whether a statement supporting or endorsing a candidate at an election would fall foul of the prohibition. From the standpoint of a legal adviser, the only safe advice to give would be to say nothing at all about any candidate at the election. This seems to me to emphasise the “chilling effect” of Mr Mawrey’s construction.21

43 As to (ii), the prohibition does pursue a legitimate aim – namely, protecting the integrity of the democratic process.

44 However, as to (iii), I consider that, on Mr Mawrey’s construction, the prohibition in s. 115 would fail the “necessary in a democratic society” test, even taking into account the margin of appreciation to be accorded to the State. I reach that conclusion for three reasons. First, it imposes a restriction on the content, and not merely the form, of political speech during an election campaign.22 Secondly, it is not confined to particular media.23 Thirdly, 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, s. 115 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.

45 Mr Mawrey did consider Article 10 ECHR, at [160] of his decision. But he recognised that very little argument had been directed towards it. In my view, s. 3

21 When finding restrictions disproportionate under Article 10(2), the Court has repeatedly placed weight on the “chilling effect” of the fear of sanction on the exercise of freedom of expression: see most recently Baka v Hungary (2015) 60 EHRR 12, at [101], and the cases cited there. 22 In Bowman, the Government argued that the campaign spending limits at issue there were justified because there were other means by which the applicant could get her message across, including having her views published in newspapers or publicized on television or radio. The ECtHR rejected this argument, and found the restriction disproportionate, in large part because the restriction operated in practice to prevent the applicant from getting her message across: see at [46]-[47]. 23 The fact that the prohibition on political advertising at issue in the Animal Defenders case was applicable only to broadcast media (and not print media or the internet) was regarded by the Grand Chamber as critical to its compatibility with Article 10: see at [117] and [124].

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HRA and Article 10 ECHR would tell decisively against Mr Mawrey’s broad construction of s. 115, even if (contrary to my view) that construction were otherwise correct.

Discrimination against members of the clergy

46 Given my conclusions in relation to Article 10 ECHR, it is not strictly necessary to address the question whether Mr Mawrey’s construction would also violate Article 14 ECHR. However, for completeness, I consider it strongly arguable that it would, at least insofar as Mr Mawrey’s construction of s. 115 singles out members of the clergy for special restrictions. To that extent, the prohibition discriminates on grounds of religion and/or on grounds of profession in the enjoyment of the right to freedom of expression. Both grounds of distinction are capable of engaging the protection of Article 14.24 For the reasons given in §25 and 44 above, I can see no proper basis for singling out members of the clergy as uniquely authoritative or influential so as to justify these special restrictions.

47 Article 14, therefore, provides an additional reason why Mr Mawrey’s construction is wrong in law.

Conclusion

48 For these reasons, I consider that Mr Mawrey’s decision in the Rahman case misstates and misapplies the prohibition on undue spiritual influence in s. 115 of the 1983 Act.

MARTIN CHAMBERLAIN QC

8 May 2015

24 Discrimination on the ground of religion is prohibited on the face of Article 14. Discrimination on the ground of membership of a profession has been held capable of falling within “other status”: see eg Nerva v United Kingdom (2002) 36 EHRR 31 and Sidabras and Dziautas v Lithuania (2006) 42 EHRR 6.

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The Representation of the People Act 1983

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The law of “undue spiritual influence” during election campaigns

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OPINION FOR THE REV. DR GILES FRASER ___________________________________________

Leigh Day Priory House

25 St John’s Lane London

EC1M 4LB