Policy Background Undue Influence
Recent reports have recommended several improvements to the existing corrupt practice of undue influence, which is the electoral offence designed to protect electors from malicious interference and intimidation. The Pickles Report recommended that "a lower test of ‘intimidation’ than the one currently set in the Representation of the People Act 1983 should be introduced" and that "undue influence should retain a reference to spiritual / religious influence." The Law Commissions’ Electoral Law: a joint final report  (2020) recommended that "undue influence should be restated". The (previous) Government committed to clarifying the offence of undue influence after 100% of respondents to the Protecting the Debate  consultation (2018) agreed that the law requires greater clarity.
	These recommendations and commitments also reflect some of the conclusions of the Tower Hamlets Election Court, set out in the judgement Erlam & Ors v Rahman & Anor    [2015] EWHC 1215 (QB). Commissioner Richard Mawrey concluded that "undue influence involving the threat of spiritual injury" occurred at the 2014 Tower Hamlets mayoral election, to the extent that the election had to be declared void. He also concluded that section 115 of the Representation of the People Act 1983 (‘RPA 1983’) is insufficient to tackle intimidation of electors because it "does not penalise thuggish conduct at polling stations of the sort that occurred in 2014."
	The main purpose of section 8 of the Act is to clarify the activities which constitute undue influence in order to make the legislation easier to interpret and enforce. This is achieved by creating a new section 114A of the RPA 1983, which updates and clarifies undue influence as set out in section 115 (which originated in the nineteenth century). It does so using modern terminology, and by clearly separating out the types of conduct that can amount to undue influence as provided in subsection (4), while defining more clearly the purpose and agency of that conduct in subsections (2), (3), and (5). New section 114A makes clear that the following activities constitute undue influence, when carried out for the purpose of forcing a person to vote in a particular way, forcing them not to vote at all, or otherwise interfering with their free exercise of the franchise:
The use or threat of physical violence;
Damage or destruction to property (or the threat of such damage or destruction);
Reputational damage (or the threat of such damage);
Causing or threatening to cause financial loss;
Causing spiritual injury or exerting undue spiritual pressure. ‘Undue spiritual pressure’ refers to a level of improper or inappropriate pressure which goes beyond the free expression of opinions on political or other matters that have implications for the principles of a religion;
Any other act or omission designed to intimidate a person which is not already covered above;
Any act or omission designed to deceive a person in relation to the administration of an election
	The modernised offence of undue influence in new section 114A is, as is the case for the undue influence offence provided in section 115, a corrupt practice. As the RPA 1983 (or other legislation governing the conduct of an election, referendum or recall petition) already sets out, a person who is convicted of the corrupt practice of undue influence is liable to up to one year’s imprisonment or a fine or both. This person (or a person who is named personally guilty of the corrupt practice in the report of an election court) is also incapable of being elected to or holding certain elective offices for five years; if the person already holds elective office, they would be forced to vacate that position. Section 8(3) and Schedule 5 of the Act also provide that the effects of this five-year incapacity as a result of committing an offence under section 114A will apply consistently across certain elective office types across the UK. This means that if a person is guilty of undue influence in relation to any electoral event in any reserved or excepted elections, they will be incapable of being elected to or holding all relevant reserved or excepted elective offices. Section 115 RPA 1983 will continue to apply in relation to elections in Scotland or Wales under the local government Act.