Last week a single judge unseated the mayor of Tower Hamlets, Lutfur Rahman, for fixing his re-election in May 2014. Among the reasons presented by deputy high court judge Richard Mawrey QC for removing Rahman from office, was that, in cahoots with local imams, the mayor exerted “undue spiritual influence” on some sections of the electorate, specifically voters from the Muslim Bangladeshi community. The former mayor has now said he will appeal against the judgment. But in order properly to understand this extraordinary and highly politicised piece of law one has to rewind to the middle of the 19th century when it was first introduced as a response to the fear of the Irish, specifically of Irish Roman Catholicism.

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“The Irish hate our order, our civilization, our enterprising industry, our pure religion,” wrote then prime minister Benjamin Disraeli. “This wild, reckless, indolent, uncertain and superstitious race have no sympathy with the English character. Their ideal of human felicity is an alternation of clannish broils and coarse idolatry. Their history describes an unbroken circle of bigotry and blood.” The priest and historian Charles Kingsley wrote in a letter to his wife, “I am haunted by the human chimpanzees I saw [in Ireland]”.

What especially spooked the English establishment was that these people now had the vote. In 1872, the Ballot Act introduced secret ballots into the electoral system. For the first time, landlords were not able to monitor the electoral behaviour of their tenants. And in 1884, the Third Reform Act extended the franchise to all men, irrespective of wealth or property. The fear, perfectly expressed by Disraeli, was that the Irish in particular, often portrayed as sub-human, would no longer defer to their masters and betters and instead be led by Rome. In the late 19th century, the fear of Roman Catholicism mingled with the racist fear of the Irish. “Home rule means Rome rule” was a familiar slogan.

It was in this context that the 1883 Corrupt and Illegal Practices Act was passed into law. And with it the idea of “undue spiritual influence”, the purpose of which was specifically to constrain the influence of the Roman Catholic clergy on what the English establishment took to be the ignorant and impressionable minds of the Irish proletariat. It’s an almost identical version of this 19th century law that has been passed down to us in the wording of the 1983 Representation of the People Act. Here is what it says: “A person shall be guilty of undue influence if he … 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.” Most of this is fair enough. But what is “spiritual injury”?

John Leech’s cartoon Mr G-O’Rilla appeared in Punch magazine in December 1861, accompanying an article quoting calls for Irish independence made in The Nation. Photograph: John Leech/Punch Magazine

In 1892, the bishop of Meath, Dr Nulty, wrote a colourful letter to his congregations, urging them not to vote for “Parnellism” (despite the fact that Charles Stewart Parnell had died the year before). It “saps the very foundations of the Catholic faith” the bishop said. And, as a result of his intervention, the general election result for Meath was set aside on the grounds of “undue spiritual influence”. Reading the bishop’s pastoral letter, it is worth noting that he did not threaten hellfire or damnation. He simply told his congregations that, in his opinion, a vote for Parnellism was incompatible with being a good Roman Catholic.

It is unsurprising that this law has been ignored since the 19th century, despite it remaining on the statute books. It originated in a nasty atmosphere of racist hostility towards Irish Catholicism and was used to suppress the power of the Roman clergy who were feared because they did not behave as tame establishment Anglicans. Ignored, that is, until now. To be clear – Lutfur Rahman was found liable for other transgressions of the law and on those I have no particular comment. But, astonishingly, the central plank of the judge’s argument concerning “undue spiritual influence” is that the Rahman case is structurally similar to the Irish case – and, specifically, he refers to a letter written by 101 imams (and not by Rahman) urging their people to vote for Rahman. About which the judge wrote this: “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 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.”

The judge is unashamed to use a law developed to subdue Irish Roman Catholics and apply it to a religious minority today

So the judge is entirely unashamed to use a law that was developed to subdue Irish Roman Catholics and then apply it to a contemporary religious minority that is suffering from a very similar brew of racism and hostility to what is seen as their foreign religious practises ie Islam. To make matters worse, Richard Mawrey QC uses exactly the same trope of the “thick Irish” and applies it directly to Muslims.

“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.”

How is this not an echo of the racist assumptions of the 19th century? And here we reach the nub of it: this is a judgment steeped in the history and prejudices of English cultural superiority. It was created to deal with the fear that unruly Irish Catholics, many migrating to Tower Hamlets, would not vote the way the establishment wanted and expected them to vote – and the worry that, being uneducated and superstitious, they would listen instead to their clergy.

Those who have defended this law have done so because they believe it is a way of keeping politics and religion apart. The standard line has been that it is OK for a priest to express his voting intentions, but not to sermonise his or her congregation to do the same. It has been assumed that what is prohibited is the use of hellfire and damnation to bully the idiot faithful – though neither the bishop of Meath nor the 101 imams do anything remotely like that. Neither mention punishment or threat or any sort of injury, spiritual or otherwise.

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Now I think there is a big question about why such things should be illegal. I mean, if I think voting for an out-and-out racist party would be a sin (and I do), and that sins have eternal consequences (and I do), then I don’t see why I shouldn’t be able to say such a thing in a free society. And from the pulpit too. There will be plenty of people out there who will tell me I am talking nonsense. And that’s fine – this is the sort of debate that makes a free society free. Indeed, religion is often the canary in the cage of a free society. Furthermore, if the Tory party can arrange for 5,000 small business leaders to say vote Tory, why can’t the imams organise a letter to say vote Rahman? Because the small business leaders are not threatening damnation, comes the reply. But the imams have said nothing of the sort – their crime was to have been too close to Rahman (which, no doubt they were). Indeed, it’s surely more convincing to argue that it was the business leaders who were threatening “consequences” – telling us the economy will go to hell in a handbasket if we don’t vote the right way. Why is this not undue influence? And come to think of it, what about Anglican bishops in the House of Lords? Surely that’s the most egregious example of undue spiritual influence. Yet, of course, it’s the imams and those they support who suffer the consequences of the law. I wonder why.

• Giles Fraser chaired the Tower Hamlets Fairness Commission from 2012-13.