The mayor of Tower Hamlets in east London was removed from office last Thursday by an election court on multiple charges of election fraud. Many celebrated; others were furious. But few have been concerned about the impact this case will have on election law, and by extension for democracy. Here’s why you should be, writes Andrew Ward.
1. The state can call politically charged investigations – and make you foot the bill.
A controversial BBC Panorama documentary in May last year provided the sole evidence for local government minister Eric Pickles to launch a fraud investigation into Tower Hamlets. Despite this investigation finding no evidence of fraud or corruption, Pickles sent in two commissioners to control parts of the council. The commissioners cost £500 a day and the audit cost £1 million – the bill for which was sent to Tower Hamlets, where half of all children are below the poverty line.
2. In fact, they don’t need to bother with democracy at all.
As of yesterday (29 April), Pickles has completely taken over the running of Tower Hamlets council – in spite of zero evidence of service failure, in spite of mayor Lutfur Rahman having already been removed from office. The Pickles hit squad have powers to force elected officials to comply with “any steps” they deem necessary. They will face a “review” following the new mayoral election in June. That’s code for “we’ll leave if the right candidate is elected”.
3. There was no jury trial.
Most of us think that the right to a trial by one’s peers is fundamental. Yet when it comes to election courts, one person can sit in sole judgment over the case, overturning tens of thousands of votes.
4. The logical implications of the judgment’s conclusions are bizarre.
The judgment admits that less than 100 in 37,000 votes were potentially fraudulent. It argues that cheating in itself is a crime, whether or not it influences the outcome of an election. But it also argues that Rahman is responsible not just for the actions of his paid staff or organised canvassers, but for a broadly drawn category of “supporters”.
The definition is in fact so broadly drawn that if someone jumped on a bus to Witney and issued slurs against David Cameron’s opponents, they would be a “supporter” of Cameron and thereby provide a legal basis for his election to be declared void.
5. The judgment is dangerous for anyone who feels discriminated against during an election.
Lutfur Rahman’s Labour opponent said on television that the problem with Rahman’s team was their ethnicity. A year earlier his party had claimed (falsely) that Bangladeshi wards were being favoured for home improvements. As a result, Rahman’s team called him “racially insensitive”. This was enough to get Rahman barred from office.
What happens next time a candidate feels as that they have been mistreated on the grounds of race, gender, or sexuality during the course of an election? Suppose, for instance, that a woman candidate accuses an opponent of sexism. With the precedent of the Rahman case, she could be removed from office if she wins – just because a judge doesn’t recognise her complaint.
6. The state now holds the right to discriminate between religions.
Commissioner Richard Mawrey’s judgment holds that there is “no real difference” between 1890s Irish Catholics and 2010s British Muslims. It argues that while the metropolitan Christian middle classes will ignore the pronouncements of bishops, Tower Hamlets’ Muslims will unthinkingly obey their imams. The assumption that Muslims are more easily led than those of other faiths provides part of the core rationale for finding Rahman guilty of “spiritual influence“.
7. An absurd definition of “minority” has been adopted.
In an equalities context, “minority” refers to power, not numbers. It does not have to mean a numerical minority. Yet racism was dismissed as “in the minds” of Tower Hamlets Bengalis (despite having been targeted by the EDL three times in recent years and had a hundred Islamophobic incidents recorded by the police in one year). Rahman was simply “playing the race card” when he raised issues of discrimination, apparently. Why? Because Bengalis constitute 32% of the population in Tower Hamlets and marginally outnumber those of White British ethnicity. As far as the judge is concerned this means they are “not a minority”.
8. The state can accept a particular interpretation of something as fact when it wants.
The other part of the spiritual influence case was based on a letter written by a group of imams supporting Rahman. They did not say that it was a religious duty to vote for Rahman at all. But the judge concluded that this was the “real meaning” of the letter. He also concluded that the “real meaning” of a Rahman press release calling Labour’s John Biggs “insensitive” was that Biggs was a racist. Yet when Rahman’s side provided similarly constructed arguments about the intention behind some of Biggs’s statements, these were dismissed.
9. Nor does credibility have to be justified by fact.
Dozens of police officers guarding polling stations, a range of count staff and other neutral observers submitted statements saying they saw no malpractice. They were ignored. Similar statements submitted by Rahman supporters were also ignored. Yet the statements of his opponents were upheld as “credible” with little in the way of justification. Postal voting fraud allegations, for instance, were upheld on the basis of a claimed door-knocking expedition by Andrew Gilligan, a journalist with a record of attacking Rahman.
10. In fact, facts don’t have to get in the way at all.
In the bribery claims, the judgment states that Rahman only hired a media adviser to deal with the Bengali media. This is not the case – his opponents criticised his office for paying a considerable sum to a different general media adviser. In the auditors’ report, accepted as factual by the judge, there is no bias found in grant distribution and no evidence of fraud or corruption found. This does not stop the judge from using said auditors’ report as evidence of illegal bribery.
11. Nor does the law, really. Even over free speech.
Section 106 of the Representation of the People Act 1983 (the one about false statements on the personal character of opposing candidates) is meant to apply specifically to official election campaign periods only. There is a reason for this – we have robust libel and defamation laws already (too robust in the eyes of many) and protected free speech on part of the European Court of Human Rights. Section 106 represents an additional infringement on that, which is only justified within tight boundaries to ensure free and fair elections. Yet for some reason the judgment on Section 106 bases itself on a range of incidents prior to the election campaign period.
12. The Rahman trial has handed the state an enormous cosh to annul elections whose results it doesn’t like.
Let’s assume for a moment that Rahman is guilty; not of material ballot rigging, because even the judge does not claim that, but of bribery, spiritual influence and the rest. Adopting the definitions used one could find credible evidence of every charge on part of election candidates up and down the country. Rahman has been taken down not for what he may have done wrong, but for defying the two main parties. The judgment relies upon stoking fears of a Muslim “fifth column” infiltrating British politics. As we know from every clampdown on alleged fifth columns, such things rarely end well for anyone’s democratic freedoms.
This particular clampdown considerably expands the role of the state in controlling elections. As of Thursday last week, a single man can remove a politician from office based on a remarkably broad set of powers to interpret and decide the facts. A judge can suppress freedom of expression, suppress religious freedoms and interpret what are at the absolute worst allegations of unfairness (one set of organisations getting more funding than the other) as bribery.
As of Wednesday this week, the state can take over any local authority it likes on the flimsiest of grounds. The left should be concerned about this. It is gearing up for a clampdown on any local authority that “goes rogue” in the next parliament against five more years of austerity. A government which came to power promising “localism” has ended up placed even more powers into the hands of the central state.
Since those powers have been used against Lutfur Rahman rather than an establishment politician or a celebrity, the usual defenders of “free speech above all else” remain silent. Which is probably why these powers were tested against Lutfur Rahman rather than anyone else.
• Defend Democracy in Tower Hamlets: rally 6pm tonight (30 April), Waterlily Centre, London E1 4TT