Today sees Britain’s new European Commissioner, Baroness Ashton, appear before the European Parliament. You never know – something interesting might crop up. Her answers to the usual written questions can be found here. Not much to get excited about, though the anti-EU crowd will no doubt leap on her first justification for her appointment:

“As Leader of the House of Lords, I steered the Lisbon Treaty through that House.”

Perhaps more interesting is a different constitutional issue – that of whether life peer Ashton can be fully independent in her new role – as raised by Jon Worth. Be warned, this one may go on a bit, and I doubt there’ll be many definite answers…

It is, in short, the age-old problem of whether it’s possible to serve two masters – a dispute that’s been ongoing ever since medieval times when increasingly powerful monarchs began to object to the authority of the Papacy, first properly expressed by Pope Gelasius back in 494 in what has come to be known as two swords theory. How can one swear an oath of allegiance to both Pope and monarch? What happens when they come into dispute? This was the very problem – well, part of a larger, more complex problem – that caused England’s break from Rome back in the reign of Henry VIII, the bitter Investiture Controversy during the time of Pope Gregory VII, and countless other spats down the years.

Currently, European Commissioners have to take an oath (PDF) that includes the following:

“I do solemnly undertake: to be completely independent in the performance of my duties, in the general interest of the Communities; in the performance of these duties, neither to seek nor to take instructions from any government or from any other body”

Is this compatible with Ashton’s oath of allegiance to the Queen, sworn on taking up her seat in the House of Lords? Ashton seems to think it’s not a problem:

“For the term of my mandate as Commissioner I have taken leave of absence from the Lords. This means in practice that, although I retain my title, I would not attend the House of Lords, nor take part in votes, give speeches there, or draw any allowances during the period of my mandate.”

All well and good – as according to the Code of Conduct for European Commissioners (PDF), “Commissioners may hold honorary, unpaid posts in political, cultural, artistic or charitable foundations”. But it doesn’t quite answer the question. Can you hold allegiance to the Queen while being “completely independent”?

As life peers who become MEPs have to give up their peerages (something Ashton claims she is unable to do), surely the same should apply to Commissioners – not least because they are explicitly supposed to be acting for the good of the whole of the EU, not just their respective countries. It’s an ongoing problem for British politicians, almost all of whom – if they end up sent to the Commission – will have taken not just the oath of allegiance, but the far more explicit oath sworn by members of the Privy Council (PDF):

“You will to your uttermost bear Faith and Allegiance to the Queen’s Majesty; and will assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates.”

It’s hard not to see this as incompatible with the Commissioners’ oath to be independent and act “in the interest of the communities” – so little wonder UKIP’s Nigel Farrage raised the point on Peter Mandelson’s appointment to the Commission four years ago.

The question of where a European Commissioner’s loyalties lie is a vital one – especially with the ongoing moves to reduce their number, so that not all member states will have a Commissioner of their own nationality. Is Ashton’s first allegiance to the Queen, or to the European Union? It’s not hard to see how anti-EU types could start to ask how can she defend Her Majesty’s “temporal Jurisdictions, Pre-eminences, and Authorities” while working for an organisation that pushes for a pooling of national powers. But turn that around – how can pro-EU types not ask how someone who’s taken an oath to defend national powers can work for the good of the Union? It’s not like it would be hard to pass a quick statutory instrument to absolve British Commissioners from their previous oaths for the duration of their terms. So why haven’t we?

Is the Privy Council oath meaningless? And if so, why does that organisation remain part of the governance of Britain? Or is the oath the Commissioners take meaningless? And if so what does this say about the role of the Commission? Where do Commissioners’ loyalties lie – with the EU, or with their home nations? Because if it’s the latter, the Commission is incapable of fulfilling its allotted task.