Has Brown made a monumental error in putting forward Baroness Ashton to replace Peter Mandelson as the UK’s European Commissioner?

That’s the interesting issue raised in a comment by Giacomo Benedetto (more on his blog) on my previous post about the UK’s new nominee. The issue has also been covered by Iain Dale and by Conservative Home. The latter cites the European Commission staffing regulations, but I reckon it’s even clearer than that – this is from the Treaty of Nice (i.e. the closest to constitutional law in the EU):

Article 245

The Members of the Commission shall refrain from any action incompatible with their duties. Member States shall respect their independence and shall not seek to influence them in the performance of their tasks.

The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not.

So could Ashton stay as a Lord and be a member of the European Commission? Baron Arthur Cockfield was a life peer, nominated to the European Commission by Margaret Thatcher in 1984, serving until 1989. Yet at the time of his nomination the Treaty of Rome was still in force, the European Parliament had only been directly elected for one term, and the power for the European Parliament to not approve the nomination of the Commission had at that point not been tested. So I don’t think that will be enough to satisfy the EP.

What about giving up the peerage? Baroness Ashton is a life peer, and there is one precedent where a life peerage has been rescinded – that of (Baroness) Sarah Ludford whose role in the House of Lords and as a Lib Dem MEP needed to be resolved from 2009 (more from No geek is an island, and Bondwoman in the comments). So Ashton would probably need something similar in order to be able to comply with Article 245.

Problem is that to do something similar for Ashton under Section 2(2) of the European Communities Act would require the Statutory Instrument to be tabled for 1 month in the Library of the House of Commons and the House of Lords (if I remember correctly – I’m not home so can’t look it up – can someone correct me in the comments?), and if members of the scrutiny committees in either Lords or Commons objected then the process could be delayed further. Could some Tory politicians be so machiavellian to cause a major delay?

Whichever way Baroness Ashton’s hearing in the EP’s International Trade Committee is going to be very interesting, especially as it’s packed with members of the EPP (it’s the only Committee where the De Hondt system of allocating MEPs to committees is not fully applied). Like Richard Corbett everyone I’ve asked that knows Ashton does not doubt her competence, but I would differ from Corbett’s analysis of how easy her hearing will be.

Sorry for the constitutional geekery, but this is politically fascinating.

[Note: this entry has been redrafted to take on board comments, and I’ve also re-thought a few aspects]


  1. Carl Gardner

    Under the ECA 1972 the government can choose (and I think almost always, possibly even always, has chosen) to make secondary legislation under the “negative resolution” procedure, under which (as I recall) MPs would have 40 days (“the 40 day rule”) to object and get the measure voted down. If they did, it would be as it were deleted retrospectively, i.e. it would be as though it’d never been law.

    But there wouldn’t necessarily be a waiting period before the measure became law. The government normally lays an SI before Parliament for 21 days before it comes into force. This is “the 21 day rule”. But it’s not a rule of law, and is often broken. The government has to explain why it is doing so to the Joint Committee on SIs, which can complain in a report if it’s not satisfied. It can’t strike the SI down or anything.

    So, to sum up. Under the ECA ’72 the government can today make an SI which comes into effect immediately – say, midnight tonight. At the same time it writes to the JCSI explaining why it’s broken the 21 day rule and just accepts criticism if need be. But the 40 day rule operates anyway, so MPs could vote the measure down and in effect annul it ab initio.

    If memory serves me right, days of recess don’t count against the 40 day rule. So Baroness Vadera would still be at risk in the Autumn.

  2. Meglena Kuneva reviews books. I think that’s an occupation, let’s have her sacked.

  3. Bondwoman

    It’s clear that both the EU and the UK consider members of the house of lords, in principle, to be members of a legislature. Otherwise, it would not have been insisted upon that the UK enact a special statutory instrument to deal with the problem of a member of the house of lords who is a lib dem MEP and who has offered to resign her peerage in order to carry on as an MEP. It’s a truly peculiar beast our house of lords, but it is definitely part of the legislature under the rubric “the queen in parliament”.

  4. Igor Guerra

    In my view, it’s the same dubious point about Presidency of the European Council (in Lisbon Treaty) being or not “an occupation”.
    If we consider Lords sui generis MPs, it’s not clearly compatible. On the other hand, if Lordship is to be considered largely a cerimonial position, it’s compatible.

  5. You propose a very British solution – oh, if she’s not there in the Lords then we need not bother. If you were Helmuth Markov, member of Die Linke / GUE-NGL in Germany, and chair of the INTA committee that will question her, would you buy that argument? With the EP elections on the horizon why not raise your profile a bit?

  6. Jeremy Hargreaves

    I really think she would be able to argue that being an absent member of the Lords was not ‘engaging in an occupation’, gainful or otherwise. If you are not active in the Lords then by being a member of it you are not ‘engaging an activity’ any more than by being a member of, I dunno, your local cricket club or something.

    And I do have to point out the irony of worrying about the second sentence of the Treaty extract you quote, when the first is so universally, er, honoured more in the breach than in the observance! 🙂

  7. Timing would be a problem perhaps? Don’t you have to deposit documents in the Library of the Houses of Parliament for a month if you’re using Section 2.2 of the European Communities Act? So presumably they would not manage this before she had to face a hearing in the EP. Plus if the Tories were clever about it then maybe they could actually ask for it to be debated in one of the scrutiny committees?

  8. Bondwoman

    Yes, I was wondering about this. The statutory instrument necessary to make it possible for sarah ludford to be an MEP after 2009 has now been passed. http://www.opsi.gov.uk/si/si2008/uksi_20081647_en_1. Something similar could be done for ashton?

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