Sports Direct’s founder Mike Ashley has indicated to the media this week that he will challenge the authority of the House of Commons’ Business, Innovation and Skills (BIS) Select Committee by refusing to appear before MPs investigating pay and working conditions at the retailer, despite being formally summoned.
In a letter dated 15 March 2016 the Select Committee Chair, Iain Wright MP, indicated to Mr Ashley that the Committee had decided to summons him to give evidence on 7 June 2016 in relation to the employment rights of agency workers at Sports Direct and the statutory regime governing the provision of support for the self-employed and employees. The letter encloses an extract of the minutes of its meeting of 15 March which simply states "Ordered, That Mr Mike Ashley attend the Committee on Tuesday 7 June". The letter concludes with a reference to reserving the right to take the matter further, including seeking the support of the House of Commons in respect of any complaint of contempt.
Mr Ashley has said, “My current intention is that I will not attend Westminster on 7 June as I believe the proposal by [BIS select committee chairman] Iain Wright MP – whom I have offered to meet in Shirebrook – is an abuse of the parliamentary process. I therefore intend to challenge the attendance order issued by the BIS committee and I will be sending a formal reply to the committee in due course.”
In February 2016 the House of Commons Information Office updated its "Guide for witnesses giving written or oral evidence to a House of Commons select committee". Unsurprisingly it does not dwell on whether or not a witness must attend, instead focussing on practical matters and information for witnesses who do attend (usually without summons) to give oral evidence.
There is however reference to the power to compel people (but not Government Ministers of Members of either House) to give evidence – this comes from the powers delegated to the House "to send for persons, papers and records" (referred to as "PPR").
These powers are not contained in any Act of Parliament and are inherent in Parliament as a sovereign body, with the House of Commons delegating them to its committees. This is why the letter to Mr Ashley refers to seeking support of the House of Commons in relation to any contempt. In reality this would involve the Chair reporting the defiance to the House and asking the House for an order enforcing the Committee’s order.
There is not much precedent for this. According to an FOI release of an unpublished internal memo for Select Committee Staff the last occasion a witness defied a PPR summons was in 1920. On that occasion the witness attended when subsequently ordered by the House to do so. In theory the House has a wide scope for enforcement in cases of defiance, including detention. But these powers have not been used in modern times. Imprisonment has not been used by the House since 1880. In 1978 it formally resolved to use its powers of penal jurisdiction sparingly and only when it was essential to enable it, its Members or its committees to perform their functions. In an interview with the Guardian in 2011 it was apparent that parliamentary officials had been unclear about how to respond when Rupert Murdoch, chairman of News Corp, initially said he would not give evidence to the Culture Select Committee. This revealed uncertainty about what powers were and the Speaker John Bercow suggested select committees should have enforceable powers to compel witnesses in British jurisdiction to attend, and not, as at present, "depend on a toxic blend of bad publicity and the entirely implausible threat of imprisonment." He called for powers to fine witnesses who do not co-operate or all-party support for the criminal law to intervene against unco-operative witnesses, as well as an additional "sparingly used power" to call them to the bar of the Commons to apologise. However at the time his calls went unheeded and to date nothing has changed.
We can watch with interest how this brinkmanship unfolds. Mr Ashley would make legal history if he fulfils his intention to challenge the authority behind PPR, similarly it would be a powerful step should the Commons ultimately imprison Mr Ashley for his defiance and it is perhaps likely that we will again hear Mr Bercow reiterate his calls for a range of more meaningful sanctions.