Select committees rely heavily on the questions MPs ask of witnesses during oral evidence sessions. Departmental committees have a power to call witnesses (to ‘send for persons, papers and records’) which is delegated to them from the House of Commons. This means that they can compel witnesses within the UK (other than the Crown and members of the Commons and Lords) to attend and answer questions. The exemption for the Crown is significant because it includes ministers – as representatives of Her Majesty’s Government. For example, the Liaison Committee can request, but not compel, the Prime Minister to appear before it.
Normally, a committee will issue an informal request to a witness to attend, and most witnesses will do so willingly. But if a witness proves unwilling, a committee can resort to using its powers and formally summon them.
In most cases such a summons will be sufficient to embarrass a potential witness into appearing. Rupert and James Murdoch finally agreed to give evidence to the Culture Media and Sport Committee on phone hacking only after being formally summoned.
After he refused an informal invitation, the chair of the BIS Committee wrote to Mr Ashley summoning him to attend a hearing on 7 June as part of its investigation into Sports Direct’s pay and working conditions. The BIS committee will now be hoping that their soft power – in the form of impact on the retailer's share price – will persuade Mr Ashley to attend. But so far – in the media at least – he has implied that he does not intend to give evidence as requested on 7 June.
If he does disregard the summons, the committee will have the option of making a report to the House arguing that he has committed ‘a contempt’. In the words of Erskine May, a contempt is ‘any act or omission which obstructs or impedes either House of Parliament in the performance of its functions’. The term is not defined in statute – it is for each House to decide what is and is not a contempt, usually on the advice of their respective privileges committees.
In addition to failure to attend a committee, another offence which has led to witnesses being found guilty of contempt is refusal to answer a committee’s questions. When Oliver Robbins, Second Permanent Secretary of the Home Office, was ‘excused’ from an evidence session before the Home Affairs Committee last Tuesday, the Chair suggested that the committee might ‘hold him in contempt’ for failing to answer its questions about the budget of UK Border Force. Subsequently, having not provided the committee with further details in response to their questions by a 6pm deadline, Mr Robbins has been asked to appear before the committee again tomorrow [Tuesday].
Whether he actually does so will be for ministers to decide. The Government’s view (notably one never endorsed by Parliament) is that civil servants appearing before committees do so as representatives of ministers and under their instruction. Consequently, it is for ministers to decide which civil servant should represent them or whether they would prefer to appear themselves, which could be a possibility in this instance.
It is not clear whether the Home Affairs Committee would actually go as far as reporting a civil servant to the House for contempt when their failure to answer questions could have been because they were following ministerial instructions. But the fact that the Home Affairs Committee went as far as excusing Mr Robbins from an evidence session demonstrates that select committees' longstanding frustrations about their ability to extract information from government and hold civil servants to account – which we have discussed previously – continue to be unresolved.
What is more, if any committee were to report to the House that it believed a contempt had been committed, and the House agreed, it remains unclear what sanctions it would have at its disposal. Historically, those found guilty of contempts could be fined or imprisoned, but those sanctions have not been used by the Commons since 1666 and 1880 respectively. For all sorts of practical, legal and constitutional reasons, it is highly doubtful that the modern House would seriously consider this.
This situation has led some to argue that the sanctions available to Parliament need to be made explicit in legislation. Others contend that such a move could engage the European Convention on Human Rights (ECHR) and disturb the separation of powers between Parliament and the courts. The consequence has been that in recent decades committees have sought to avoid reporting potential contempts to the House precisely because such moves might end up exposing their own impotence. It remains to be seen what course either committee will follow.