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):
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 Baroness Ashton is a life peer, and there is one precedent where a life peerage has been rescinded – that of (Baroness) Sarah Ludford whose role in the House of Lords and as a Lib Dem MEP needed to be resolved from 2009 (more from No geek is an island, and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]