Corporate witnesses and the risks of refusal

In January 2025, a representative of Shein, the fast fashion e-commerce platform, appeared as a witness before the Business and Trade Committee to give evidence on labour rights in Shein’s operations. In the course of the session, the committee chair, Liam Byrne, admonished the witness for a “reluctance to answer basic questions”, which he said had “frankly, bordered on contempt of the Committee”. Byrne concluded the hearing by saying that “the Committee has been pretty horrified by the lack of evidence that you have provided today. You have given us almost zero confidence in the integrity of your supply chains. You cannot even tell us what your products are made from and you cannot tell us much about the conditions that workers have to work in”.

While it is not the norm for such hearings to become so heated, the example illustrates why appearing before a parliamentary select committee can be such a daunting prospect for witnesses. It has become a routine feature of doing business in the UK for executives to be asked to give evidence in these forums. Senior representatives of UK and international businesses appear regularly before a range of parliamentary select committees to provide their perspectives on a variety of issues, ranging from the competitiveness of the UK’s investment landscape to board-level remuneration. With public inquiries also becoming increasingly common, there are multiple venues away from the courtroom in which business leaders may be asked to give evidence in the public eye. 

The trend reflects a shift in corporate accountability. With regulatory enforcement often slow and litigation expensive, public hearings have arguably emerged as a faster, more visible mechanism for holding companies to account. In contrast to court hearings, such evidence sessions are typically streamed live online and may be picked up by news broadcasters. It therefore goes with the territory that they may present reputational risks for businesses: if lawmakers are interested, there is likely to be interest from the public. The subject matter in question may also be topical and there may be accusations levelled against the company in the course of an evidence session. 

In light of these risks, on receiving a request for witness testimony from a parliamentary select committee or a public inquiry, a witness’s first question may be ‘Should I Stay or Should I Go?’. We explore below the legal and practical issues underpinning these questions, as well as how they differ depending on the forum.

Compulsion powers of public inquiries

Public inquiries exist to investigate issues of serious public concern. The statutory power to compel the production of evidence, including oral testimony, is therefore one of the defining features of an inquiry. 

Under section 21 of the Inquiries Act 2005, the chair of a public inquiry may require a person to attend “at a time and place specified” to give evidence. This sits alongside other evidence-gathering tools, including the ability to compel the production of a witness statement and to order the provision of relevant documents. 

These powers are underpinned by robust enforcement provisions. Section 35 of the Inquiries Act makes it an offence for a person to fail to comply with a section 21 notice without reasonable excuse, punishable by a fine or a term of imprisonment. Under section 36 of the Act, an inquiry may also certify a person’s failure to comply with a section 21 notice to the High Court, which may use the same enforcement powers it has in respect of court proceedings, such as a witness summons backed up by a power of arrest. 

There are a number of recent examples of public inquiries having drawn on these powers to obtain the evidence deemed necessary for their investigations.

In the Manchester Arena Inquiry, a friend of the perpetrator had failed to comply with several requests for evidence from the inquiry’s chair. The chair applied to the court for an order that the individual attend the hearings to give evidence, supported by a direction that, if the individual breached the order to attend, he be detained and brought before the inquiry. Shortly after the order was made, the individual was arrested at Manchester airport on suspicion of seeking to flee the jurisdiction. The police then transported him to the inquiry hearing where he was cross examined. 

The power was also used in respect of the Grenfell Tower Inquiry after a former senior technical advisor at a manufacturer of a product used in the cladding at the tower had failed to respond to attempts by the inquiry to contact him. After the individual had repeatedly ignored the inquiry’s request for evidence, the inquiry’s chair applied to the court for an order requiring a full response, which the court granted. 

These examples illustrate that the tools available to a statutory inquiry to assist it to obtain the evidence it requires to perform its investigatory function are powerful. However, they are not boundless. The limits of statutory inquiry powers were illustrated in June 2024 when Jane MacLeod, former General Counsel of the Post Office, refused to provide oral evidence to the Post Office Horizon IT Inquiry. Ms MacLeod, described by the Inquiry Chair as an "important witness" had provided a written witness statement. However, her legal representatives subsequently informed the Inquiry that Ms MacLeod was "questioning whether she would be able to assist the Inquiry further" by providing oral evidence. 

The chair of the inquiry, Sir Wyn Williams, ultimately concluded that he had "no adequate means of compelling Ms MacLeod to attend" due to her residence in Australia. The Inquiry therefore removed her from the hearing timetable, but Sir Wyn noted that he had “received a considerable amount of disclosure on the issues that are relevant to Ms MacLeod” meaning he did not consider that “her absence prevents me from establishing the facts of her involvement in the matters relevant to the Terms of Reference”. 

The limits of Parliament’s powers

The picture is different for parliamentary select committee hearings. Select committees wield what sounds like an impressive power: the ability to 'send for persons, papers and records'. This eighteenth-century formulation suggests sweeping authority to compel attendance. The reality, however, is more complicated.

If a witness refuses such a formal order to attend to provide testimony, the committee in question can seek for the House (of Commons or Lords as relevant) itself to order the witness’s attendance. Failure to comply with such an order may result in the witness being found by the House to be in contempt of Parliament, and at risk of formal admonishment. Parliament theoretically has the power to fine and imprison those guilty of contempt. However, these have not been exercised since 1880 and 1666 respectively, and there are serious doubts as to whether they could be deployed by Parliament today.

The predicament facing Parliament played out in 2018-2019 when the Digital, Culture, Media and Sport Committee sought evidence from Dominic Cummings, former campaign director of Vote Leave, in its investigation into disinformation and 'fake news'. Mr Cummings repeatedly declined to cooperate, even after the Committee escalated through all available enforcement mechanisms and the House itself issued a formal order.

In March 2019, the Committee of Privileges found Mr Cummings in contempt of Parliament. The House of Commons subsequently issued a formal admonishment to Mr Cummings a month later. Nevertheless, the impotence of the Committee and Parliament was illustrated in striking terms when less than four months later Mr Cummings was appointed chief political adviser to the Prime Minister, complete with a parliamentary pass. The irony of a person held in contempt of Parliament working at the heart of government and in the Parliamentary estate itself was not lost on observers or MPs.

The postscript is equally revealing. In May 2021, Mr Cummings voluntarily appeared before a different committee investigating the government's COVID-19 response. By that time the former adviser to the Prime Minister, Mr Cummings provided seven hours of explosive testimony in which he appeared to seek to settle a number of scores with his former colleagues. In particular, he said that the former Secretary of State for Health, Matt Hancock, should have been fired for “criminal, disgraceful behaviour” with respect to the latter’s attempt to hit covid testing targets. Mr Cummings’ contempt finding had created no impediment to future cooperation, when it suited him.

The reform debate

Despite its historic rarity, Mr Cummings’ refusal to appear before the select committee was not an isolated incident. There have been other examples of executives resisting giving evidence, including Sir Philip Green after BHS’s collapse and Mike Ashley of Frasers Group in respect of the treatment of his workers, albeit both witnesses ultimately succumbed to pressure and agreed to be questioned. 

These challenges to Parliament’s authority prompted calls for reform. In June 2022, the House of Commons Committee of Privileges (as it was then known) published a report proposing legislation that would give select committees enforceable powers to summon witnesses and order production of documents. These would include creating a new criminal offence of failing to comply with a witness summons, sanctionable by a period of imprisonment or a fine.

Those proposals have not been uncontroversial. Commentators have queried whether select committees are properly equipped to ensure their hearings are fair to witnesses who may have been compelled to provide evidence, particularly given that there is no right of appeal to a select committee report, those conclusions cannot be challenged in domestic courts and MPs benefit from parliamentary privilege insulating them from claims of defamation. Indeed, neither the previous Conservative government (2022-2024) nor the current Labour administration have taken forward these proposals for reform. 

Nevertheless, the Westminster Parliament is something of an anomaly in this regard. Other parliaments in the common law world, notably those of Australia, New Zealand and Ireland have enforcement powers supporting their ability to call for witness evidence. Each of the devolved legislatures that form part of the UK also have such powers in their foundational statutes. Moreover, the use of subpoenas against private persons by the US Congress is a daily part of the rough and tumble of life on Capitol Hill.

Assessing risks of non-attendance

The contrast between public inquiries and parliamentary select committees is therefore stark. For witnesses called to give evidence to a public inquiry, there is little scope to refuse to engage (at least for those resident in the UK). Whereas witnesses summoned to give evidence before a select committee could (metaphorically speaking) choose to thumb their nose at the request. 

In practice, however, there are several reasons why it is generally better for witnesses to engage with a select committee rather than risk a finding of contempt (even if Parliament has been shown to be toothless in its ability to compel attendance at a hearing). 

The first reason to warn against an intransigent stance is that it risks creating a story that would otherwise not exist. Recent examples of witnesses refusing to cooperate with a committee, whether by dodging the questions posed or declining to attend at all, offer a salutary lesson. The refusal of an individual to engage with a parliamentary select committee is far more likely to generate headlines than a decision to cooperate, which remains the default approach of most witnesses. The nature of these hearings means that successful appearances often go unreported precisely because they generate less media interest. 

There may also be other good reasons to engage. Select committees exist principally to scrutinise government and inform policymaking. They therefore offer a powerful channel for influencing policy. A recent example of this arose when the Science, Innovation and Technology Committee questioned representatives of the life sciences sector back-to-back with the Minister for Science, Research and Innovation on the UK’s competitiveness as a market for investment. In the context of questions on mechanisms to control medicines pricing, Andrew George MP asked “We have Ministers before us shortly, in 10 minutes’ time. What should we be pressing them to do?” The question gave representatives of industry a direct opportunity to provide parliamentarians with the fodder to scrutinise the government and thereby influence policy in the interests of the sector. 

The Shein example also demonstrates that showing up is not enough if the witness then stonewalls. The Cummings precedent shows that refusing to attend carries minimal formal sanction. But both examples illustrate the same lesson: whether you stay or go, the reputational consequences can very easily exceed the legal ones. For lawyers advising corporate clients, this means the question is not 'must we attend?' but rather 'what serves our client's broader interests?' More often than not, the answer is strategic cooperation. This is not because Parliament can compel it, but because the alternative creates more problems than it solves. 

Executives that agree to attend without any fuss, appear cooperative and well-prepared, answer questions directly, take responsibility where appropriate and avoid defensive or combative behaviour tend to have unremarkable appearances that don’t make the headlines. For most corporate witnesses, this outcome represents success.

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