Politics is the ‘conduct of public affairs for private advantage’.

Such was the cynical opinion of US journalist and social satirist, Ambrose Bierce (who died around 1914). But, satire apart, public power is a trustee function to be exercised prudently in the public interest, not for the private benefit of office holders. That is certainly what the public expects and it is the lodestar for all politicians of integrity.

That is why the Tower Hamlets election court judgment (given on 23 April by Judge Richard Mawrey QC, sitting as an election commissioner) makes such depressing reading for all with an interest in sound, effective and principled public governance.

For, in the context of an election petition to have the Tower Hamlets mayoral election of 22 May 2014 set aside for corrupt and illegal practices (under the Representation of the People Act 1983), the judgment was a painstaking, robust and excoriating legal critique of the behaviour and regime of solicitor and former mayor, Lutfur Rahman (pictured).

Rahman was found guilty (through his agents and in some cases personally) of various corrupt and illegal election practices under the act including bribery, undue influence, personation, offences concerning postal and proxy votes, providing false information to a registration officer, making false statements as to candidates and paying canvassers.

Rahman was described as ‘evasive and discursive to a very high degree’ and ‘not truthful’. For in ‘one or two crucial matters he was caught out in what were quite blatant lies’. Corrupt or illegal practices were also found to have so extensively prevailed that they may reasonably be supposed to have affected the result of the election.

The election was therefore declared to have been avoided by corrupt or illegal practices and general corruption under relevant provisions of the act. Rahman was also declared ‘incapable of being elected to fill the vacancy or any of the vacancies for which the election was held’ and was reported to the Solicitors Regulation Authority under section 162 of the act.

The court described Rahman’s ‘right-hand man’ Alibor Choudhury, cabinet member for resources (‘perhaps the slang term “hatchet-man” would be more appropriate’) as ‘a very unsatisfactory witness’ who ‘did not hesitate to tell bare-faced lies in the smug assurance that the mere lawyers listening to him would not have the wit to see through them’. Choudhury was also named as guilty of illegal practices and a corrupt practice.

As to the political ‘modus operandi’, ‘Mr Rahman would retain a statesmanlike posture, making sure that he always said the right thing – particularly in castigating electoral malpractice – while what might be called “the dirty work” was done by Mr Choudhury’.

In the course of a careful and thorough 200-page judgment, an unfortunate picture emerged of abuse of process and political power. Fear of giving offence to racial and religious sensibilities was apparently cynically ‘weaponised’ for political purposes. As the judge noted from the evidence, the line taken by Rahman and his supporters was that any critic of the mayor was playing into the hands of the far-right English Defence League (EDL).

An example of the rather tortured logic used to conflate any criticism of Rahman and his colleagues with racism can be seen in paragraph 261: ‘… criticisms of Mr Rahman by his political opponents are adopted and repeated by the EDL: the EDL is a racist organisation: therefore anyone who criticises Mr Rahman is giving aid and comfort to the EDL: therefore anyone who gives aid and comfort to the EDL is himself a racist: therefore it is racist to criticise Mr Rahman’.

The judge noted that this ‘series of propositions informed all the responses of Mr Rahman and his team to criticisms and may be taken to be an epitome of the thought processes of Mr Alibor Choudhury’.

But although the judge thought it inevitable ‘that Mr Rahman will denounce this judgment as yet another example of the racism and Islamophobia that have hounded him throughout his political life’, he gave any such argument short shrift, pointing out stoutly that it ‘is nothing of the sort’. For: ‘Mr Rahman has made a successful career by ignoring or flouting the law (as this petition demonstrates) and has relied on silencing his critics by accusations of racism and Islamophobia. But his critics have not been silenced and neither has this court.’

It certainly was not. For in tackling the sensitive and difficult matter of undue spiritual influence (and finding that this had been established contrary to section 115(2) of the act) the judge was fearless. Although ‘it would have been easy to evade the issue by holding that, notwithstanding the clear words of the statute, spiritual influence should be treated as obsolete’, nevertheless, to ‘evade an issue or to reach a “fudged” solution in the hope of avoiding offence would be an abdication of the judicial function’.

In the last paragraph of his judgment, the judge highlighted the read-across to other profound social and public dysfunctions that have been caused by failures properly to exercise public functions because of misplaced sensitivities: ‘Events of recent months in contexts very different from electoral malpractice have starkly demonstrated what happens when those in authority are afraid to confront wrongdoing for fear of allegations of racism and Islamophobia. Even in the multicultural society which is 21st century Britain, the law must be applied fairly and equally to everyone. Otherwise we are lost.’

A salient example of course is Rotherham, where in her February 2015 report Louise Casey noted that although children were ‘sexually exploited by men who came largely from the Pakistani heritage community’ not ‘enough was done to acknowledge this, to stop it happening, to protect children, to support victims and to apprehend perpetrators’.

In robustly finding that Rotherham Council was ‘not fit for purpose’, in particular ‘failing in its duties to protect vulnerable children and young people from harm’, she highlighted ‘misplaced “political correctness”’ as an ingredient of its unhealthy culture.

But, in its closing pages, the election court judgment highlighted various matters for the Law Commission; including the petition system, which is ‘obsolete and unfit for purpose’. ‘Why,’ the judge asked, since we don’t ‘leave it to the victim of burglary or fraud (a fortiori the victim of rape) to bring civil proceedings against the perpetrator as the only way of achieving justice, do we leave it to the victims of electoral fraud to go it alone?’ A resonant question, illustrated graphically by the uphill struggle of the petitioners who had shown ‘exemplary courage’ in the instant case.

Comment

The Tower Hamlets judgment is lengthy but essential reading for all local government lawyers. As well as being an excellent election law primer, it is also a cautionary tale for all in public service about the deleterious effects of abuse of public power. For the ‘real losers in this case’ were noted as ‘the citizens of Tower Hamlets and, in particular, the Bangladeshi community’. This ‘alarming state of affairs’ being due to ‘the ruthless ambition of one man’.

Nevertheless, Rahman has announced that he will be appealing the judgment and ‘continues to reject all claims of wrongdoing’. According to his website he holds ‘that the integrity of the court system was marred by the bias, slurs and factual inaccuracies in the election judgment’.

However, the judgment is of course what it is, unless it is overturned on appeal.

Nicholas Dobson , Freeths

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