Nosemonkey's EUtopia

In search of a European identity

The constitutional position of European Commissioners

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…

Two swordsIt 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.


  1. Speaking as an anti EU person I dont think Ashton would have shown much loyalty to Britain anyway. Steering the Con/Reform?lisbon Treaty through Parliament is proof of that.
    That`s another problem with the EU project– it creates a vast gulf between the ruled and the rulers and increases cynicism in both.

  2. As a non-anti-EU person I see her involvement in the Lisbon Treaty ratification as the only reason to become EU Commissioner. I haven’t heard any other good reason so far. And this reason remains quite weak because every speaker would have been involved in the ratification and her only quality was not to fail.

    When it comes to the life peer issue, I don’t see much problems, at least not in terms of substance. Maybe even the Queen could release her from her formal duties for the time she is serving in the Commission…?!

  3. Pingback: Jon Worth » Ashton gets backing from Schulz, so all’s OK (not)

  4. You pose an interesting question, as you say: The question of where a European Commissioner’s loyalties lie is a vital one. You mention that she steered the Lisbon treaty through the Lords, but Gordon Brown steered it through the Commons, which raises an equally vital question; where do our elected government’s loyalties lie.

    On the question of Baroness Ashton I see no problem that is not also evident with any other British EU commissioner, the person she is replacing (Peter Mandelson) epitomises the problem, he firstly took an oath to the Crown, then an oath to the EU and now as he is once again in government and has been raised to the Lords, one assumes another oath to the Crown.

    But Mandelson will also be collecting a large financial handout from the EU for the next three years, whilst he is a serving member of the British government and will eventually be paid an EU pension just like all other ex – Commissioners in the Lords, where do their loyalties lie?

    It would seem that taking an oath and loyalty to ones own country have no meaning whatsoever and are a redundant hangover from a nationalistic past. Because on one level the question of loyalties cannot be answered, yet on another level the answer is so simple as to not need stating.

    Mr Blair was correct when he described the situation with the EU

    Basically you have a choice: co-operate in Europe (EU) and you betray Britain; be unreasonable in Europe, be praised back home, and be utterly without influence in Europe (EU). It’s sort of: isolation or treason.

  5. The real problem with Ashton (who definitely breaches the Commisison’s Code of Conduct) is the one inherent to the House of Lords – it is appointed and unelected. She has served in the government since 2001 without ever facing election. Public authority should not constituted or exercised in this way. The swap with Mandelson, avoiding a troublesome by-election for an unpopular government, compounds the crime and the anti-democratic character of the Lords. Should Europe have place for executive public powers to be exercised by unelected people, whether in Brussels or Westminster?

  6. Robin – indeed. In fact, I think I’ve seen some of the anti-EU crowd claim that any member of the Privy Council who voted for the Lisbon Treaty in Parliament has technically broken their oath, and therefore technically committed treason. But then again, their oath is to the Queen, and she signed the thing into law, so by that logic she’s also committed treason. Time for another regicide, perhaps?

    Julien – true, to an extent this is all largely meaningless theory, but still. Oaths like these are still meant to mean something – and the question of whose interest the Commissioners are working towards, the EU’s as a whole or that of their own nations of origin, is a vital one for the entire Union.

    Please note, for example, the current EU reaction to Italy’s clampdown on the Roma – very slow to do anything at all, because the last Justice Commissioner (an Italian mate of Silvio Berlusconi) deemed it all OK. Was he acting as a independent European or a partisan Italian? I strongly suspect the latter. As long as this remains the case, the independence and impartiality of the Commission – which is vital for it to work effectively as long as it remains in its current form – is deeply compromised.

    Ken – I always start to worry when we’re in agreement about this sort of thing… Heh!

    Bruno – I’m actually quite a fan of including non-democratic elements in governmental systems to provide a check on factional/party interest. It’s got me into a fair amount of trouble in the past – especially when I argued against an elected House of Lords as part of an event organised by the Elect the Lords campaign – all sorts of accusations of elitism, etc. (especially as I’m loosely pro-EU).

    Semi-relatedly, I see no real problem in creating someone a peer so that they can become a minister as long as they remain accountable to the Commons – and as long as they are a) demonstrably more qualified for the job than anyone in the Commons, and b) haven’t previously brought a high office into disrepute. Which kind of discounts Mandelson. I also don’t like the massive hypocrisy of going on about making the House of Lords more democratic while continuing to appoint political buddies to the Upper House – whatever happened to leading by example? But still, it’s not really that different to the US Cabinet situation (something I tried arguing one time in relation to the Commission).

    When it comes to the Commission, I likewise see no fundamental problem with it being unelected – especially now that the EP has proved that it can boot them out. There still needs to be more democratic accountability and greater transparency, though (and it’s worth noting that the highly secretive Council is a far worse offender). The logistics of electing the Commission would also be tricky – just as would electing the US Cabinet (or the UK Cabinet, for that matter). It’s something I’ve been meaning to do a lengthy series of posts on for ages, but have never quite got around to it.

  7. I am against an elected Lords too, it should be abolished. Full stop.
    Why is bureaucratic or non-democratic or monarchial any better than factional/party interest? Governments should be formed out of majorities in unicameral parliaments (first past the post elections naturally), cabinet ministers should be comprised of deputies. All executive functions should be held in the elected government, crown prerogatives (the power of Whitehall) should be abolished and the constitutional role of the monarch removed. I quite like the Chartist ideas.
    There are major problems with the centralisation of executive powers in the US President – one that has been manifest in the long term decline of democratic politics there. As for the EU, I argue, all the time that it is the Council that is the problem.

  8. I can’t say I’ve worked out my ideal political system – far easier to criticise than be constructive, I find (hence the whole blogging thing…)

    The only thing I am certain of is that I want as many checks and balances on government as possible. Majorities are dangerous things, and unchecked rule by majority even more so. Chuck party machinery in there, making the elected representatives beholden to the party rather than the people, and the whole situation gets even worse.

    (Are your Telegraph bosses aware that you like the Chartists and are anti-monarchy, by the way? I know it’s been all change there in recent years, but surely they haven’t gone so far as to allow THAT? Heh…)

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