Written evidence from Mr Iain Wright MP, Chair of the Business, Energy and Industrial Strategy Committee (SCC0009)

Exercise and enforcement of powers of the House

This letter responds to your request to provide views on your current inquiry relating to select committee powers. It draws heavily on my Committee’s recent experience in exercising these powers in relation to testing inquiries into BHS (jointly with the Work and Pensions Committee) and into Sports Direct. The views expressed are my own, but also reflect the consensus in the Committee that emerged in our discussion of the issues.

In terms of the three options outlined in the paper submitted by the Clerk, the “do nothing” option should be ruled out. The present uncertainty around enforcement of select committee powers is liable to be exploited by witnesses to undermine proper committee inquiries. We saw this clearly in our Sports Direct inquiry, where the response by Mike Ashley to a summons to appear was a series of letters which used the absence of clarity around the Committee’s powers and processes – and those of the Privileges Committee in the context of proceedings on an allegation of contempt – as an excuse to delay agreement and potentially to not appear at all.

My own view is that it was the potential threat to the share price of his company, rather than any recognition of the Parliament’s powers, that eventually persuaded Mr Ashley to attend. As a Committee, we were determined to assert our right to hear evidence directly from whom we chose; but we were very conscious that a refusal to attend would have significant consequences for the conduct of future select committee inquiries and for the reputation of Parliament as a whole. This outcome was only narrowly averted. That is why the option of refusal to attend should be removed, beyond any conceivable doubt.

The option of a statutory regime is not attractive. My Committee is strongly of the view that responsibility for, and control of, select committee inquiries should, as a matter of principle, remain with Parliament rather than be passed the courts. It was this Parliamentary control which allowed us not to engage in detailed procedural objections and queries raised on behalf of witnesses, which could have delayed or derailed our work. The published correspondence between Mike Ashley and myself gives a good indication of the nature of the legal issues which any legislative solution would need to negotiate. 

Having dealt with some determined individuals, I do not believe that a mere restatement or assertion of Parliament’s powers would necessarily be sufficient to gain cooperation in all circumstances. The legal limits of these powers are bound to be tested at some point. Some element of legislative underpinning may therefore be necessary to secure our ability to exercise our powers with confidence. I am therefore attracted to the option suggested in the paper by the Clerk of the House of the Speaker asking the courts to enforce a properly exercised power of summons by a select committee.

There would need to be proper limits established to prevent the courts being embroiled in lengthy procedural arguments with both witness and committee, but this should be possible to achieve through discussion and agreement of a protocol governing fair committee process. The minimal involvement of the Speaker and the courts would provide sufficient protection for witnesses against any abuse of powers by committees and remove the existing uncertainty.  It would also be more effective for non-compliance with a summons to become subject to the existing sanctions for contempt of court rather than for Parliament to seek to assert its ancient sanctions to fine or imprison.

In respect of the power to call for papers and records, I believe it would be helpful for your Committee to address the interaction of committee powers with existing statutory powers relating to confidentiality. In our joint inquiry on BHS we sought and obtained a great deal of information, most of which we were able to publish, but this process sometimes involved considerable negotiation and testing of the Committee’s powers. For example, the Pensions Regulator is legally prohibited in providing information it obtains to third parties, including, arguably, select committees. In oral evidence, some lawyers and advisors felt more constrained than others by duties of commercial confidentiality and legal privilege. It would be helpful to establish with greater certainty the rights of select committees to override such duties, where necessary. 

In conclusion, the absence of clarity around the enforcement of select committee powers did not, in the end, prove too damaging to our recent high profile inquiries, but it certainly made our task more difficult and open to challenge. I urge your Committee to take this opportunity to provide greater clarity, for the benefit of select committees and those with whom we engage.

April 2015