Remember the problems Tony Blair encountered when he tried to abolish the post of Lord Chancellor and found he needed to legislate in order to do so? Well, a similar thing happened last week. The PM wanted to abolish the posts of Welsh, Scottish and Northern Ireland Secretaries and create a new Department of the Nations, but then found he couldn't when government lawyers said they too could not be abolished without legislation.
Dan Hamilton reckons there may also be a problem with the appointment of Baroness Ashton as European Commissioner. If you take on that post you are not allowed to be a member of a national legislature. So the only way she could take up her post is to resign her Peerage. Quite a price to pay for a stint in office that will only last a year. So here's a question...
If you resign a Peerage, can you be given a Peerage a second time, only a year later?
41 comments:
Well, indeed. Of course, the main thing is that (I believe) there's no precedent at all for resigning a Life Peerage (the Peerages Act 1963, for The Viscount Stansgate (Tony Benn), was for hereditary peers). I would welcome being corrected on this, though!
I don't see why not. She could be re-appointed at the drop of a hat - please see P Mandelson for details.
I would like to know what the EC says about chopping and changing our commissioner like that. Surely the trade post was given to Mandy because it suited him and the other commissioners available at the time. Who is to say that Ashton will be best suited to that role? Why should the British PM have control of the EC trade post?
Erm...surely you can't resign a peerage?
Under the 1963 Peerages Act, hereditary peerages may be disclaimed within twelve months of inheriting the title. There is no provision under the 1958 Life Peerages for a life peerage to be disclaimed. Baroness Ashton is Baroness Ashton for life. Legislation would be necessary to provide for a peer to cease to be a member of the House of Lords. This has happened in respect of the law lords who, under the Constitutional Reform Act 2005, will not be able to sit during the period that they serve as members of the new Supreme Court.
I thought that there was some quango or other to approve proposed peerages? Don't Mandelson and, now, Carter, have to have their CVs examined first? Quite apart from the democratic deficit of course
So isn't England a nation then?
Perhaps she could take a leave of absence from the Lords which would allow her to retain her title.
and the man who makes these appointments, one Gordon joined at the hip Peter, is currently telling us he is the man to solve the biggest economic crisis since the 30ies.Time to emigrate with one's savings before exchange control is reintroduced.
I don't think there is a precedent for life peers to resign. Baroness Ludford was apparently prevented from doing so.
There are instances of hereditary peers renouncing their peerages and later being given life peerages - the Earl of Home and Viscount Hailsham being two examples.
I would imagine it would need legislation for her to renounce her peerage. However, as this Govt. makes up everything else, perhaps she should just say "I renounce", spin round three times and spit. That should do it...
What happened then when Lord Cockfield was a Commisar from 1984 to 1988 hsving been a life peer since 1978? Indeed earlier still Baron Richard, a Labour Party representative from 1980 to 1985.
If the rules are new, then surely she has to do is apply for leave of absence from the Lords
There is no mechanism to renounce a life peerage. The Lib Dem MEP, Baroness Ludford, has already tried. So the question is, are we going to tear up our rules yet again in order to humour Brussels (and a peeress who has never once faced the electorate in her life)?
See Will Howell's post over at Lib Dem Voice for the definitive answer to this. Following a statutory instrument, life peers will be able to become commissioners and MEPs provided they do not vote in the HoL during their term of office.
Ian, new rules have been introduced since Lord Cockfield's day. You can only apply for a leave of absence as an MEP (as Sarah Ludford did). There is no provision to do that as a Commissioner.
It didn't seem to be a problem in 1984:
Mr. Foulkes asked the Prime Minister what representations Her Majesty's Government have received from any of the institutions of the European Community regarding the legal problems arising from the appointment of Lord Cockfield as a European Economic Community Commissioner.
§ The Prime Minister None.
§ Mr. Foulkes asked the Prime Minister what legal advice from outside Government she sought regarding the appointment of a Member of the House of Lords as a European Commissioner.
§ The Prime Minister The compatibility of Lord Cockfield's appointment as commissioner with his membership of the House of Lords was initially raised by Members of the European Parliament. It was accordingly considered by the Commission and Council Legal Services. They have concluded that there is no incompatibility in such cases where the Member concerned takes leave of absence from the House of Lords for the duration of his appointment as a commissioner.
§ Mr. Foulkes asked the Prime Minister if she will reconsider the appointment of Lord Cockfield as an EEC Commissioner, in view of the legal problem arising from his position as a Member of the House of Lords.
§ The Prime Minister No.
Mike Wood. Sigh. I refer the hon gentleman to the answer above. The rules have changed since 1984.
Iain, it's the rules affecting MEPs that have changed since 1984. I'm not sure that the position of Commissioners is substantially different now.
It's times like these when you become convinced that most conservatives on blogs think that the party sprang into existence in 1979.
Alec Douglas-Home (remember him?)renounced his earldom to become PM and was later created a life peer.
The Statutory Instrument referred to by Niles applies only to peers who are declared elected as MEPs. It does NOT apply to a peer appointed to the Commission.
zeddy: The Earl of Home was able to renounce his peerage under the 1963 Peerages Act. When he was later created a life peer, he could not renounce the life peerage.
I think RJT has the right answer - you can take a leave of absence from the Lords.
If that were insufficient, the Buckhurst Peerage Case is relevant. In short, a peer cannot be deprived of their peerage (R. v Purbeck) except by Act of Parliament; however, the Wensleydale Peerage Case suggests that the Crown's ability to make a peer is illimitable.
The situation would be different if Ashton were a Scottish peer, as these can be given back.
This 'one year job' thing, though, is simply wrong, Iain. There is a difference between 'being fired' and 'resigning'. Peter Mandelson resigned; David Cameron would not be able to fire a Commissioner who had been duly appointed.
xD.
Anonymous said...
"Under the 1963 Peerages Act, hereditary peerages may be disclaimed within twelve months of inheriting the title. "
Alec Douglas-Home and Quintin Hogg had been hereditary peers for more than 10 years before they renounced their peerages in 1963 (after the Act was passed).
Re Hailsham and Hume. I'm sure you'll find that there was a transitional provision allowing any existing hereditary peer who wanted to to renounce within a certain time of the Act coming into force. Otherwise Tony Benn wouldn't have been able to renounce his peerage.
iain,
she must take her life to end her life peerage!
she could do a stonehouse!
Surely Magna Carta prevents the Government (i.e. the Crown) from repealing a peerage, so without any mechanism for renunciation of a life peerage, she's lumbered with it.
Another constitutional issue has emerged recently.
Under Labour, elections(and referenda) are only allowed to be held if Labour thinks it will win.
European Treaty referendum--not held
2007 General Election---not held
Glenrothes--not held yet (trying to find some excuse)
Motherwell Scottish Parliament seat--incumbent given a new non-job to allow him to remain an MSP and avoid an election.
Crewe and Nantwich,and Glasgow East were of course miscalculations of the likely
outcome.
Why link to Hamilton's post when it is just a rehash of the article he hat tipped - http://cep.rhul.ac.uk/cep-blog/2008/10/5/who-is-commissioner-baroness-ashton.html
Three specific question come to mind in relation to this question. Firstly, what is the legal status of the code of conduct for commissioners? By the looks of it, it is a decree of Mr. Barosso and not really binding besides the fact that Mr. Barosso may ask commissioners to resign if the do not follow the code of conduct. Secondly, in the code of conduct, paragraph 1.1.1. states, among other things: “Commissioners may hold honorary, unpaid posts in political, cultural, artistic or charitable foundations or similar bodies. They may also hold such posts in educational institutions. “Honorary posts” means posts in which the holder has no decision-making power in the management of the body in question.” Is it not to be argued that when Baroness Ashton takes leave of absence, she holds a honary, unpaid post in a political similar body to a foundation according to the above mentioned definitions.
Thirdly, if you agree with the above mentioned point, how does this compare to the section that states: “Commissioners may not hold any public office of whatever kind” in the same paragraph of the Code of Conduct, though in a later section?
So no time for novices, then?
Leave of absence it is.
There are a handful doing it right now, the Noble Lords Laidlaw and Salisbury among them:
http://www.parliament.uk/faq/lords_leave_of_absence.cfm
"johnse18 said...
So isn't England a nation then?"
It was once upon a time - now it's "the regions" - England as a nation would be an inconvenience to the EU superstate - so with Labours help it's in the process of being broken up. Divide and conquer a timeless classic.
Wake up you English gentlemen before it's too late.
I couldn't care less about all this bloody peerage crap .
MUCH more important is that the British government is typically implying that the English don't exist as a nation which is a clearcut case of national discrimination against the English by the British
unless of course the Department of Nations has only one nation in it ie England
in which case it should be renamed the Department of Nation
or English Department
which is also imsulting because England is worth more than just a bloody department
how about an English parliament, government, first minister, English budget and the rest ?
The Facts...
Article 213 (2) (ex157(2)) of the treaty establishing the European Community
1.(27) The Commission shall consist of 20 Members, who shall be chosen on the grounds of their general competence and whose independence is beyond doubt.
The number of Members of the Commission may be altered by the Council, acting unanimously.
Only nationals of Member States may be Members of the Commission.
The Commission must include at least one national of each of the Member States, but may not include more than two Members having the nationality of the same State.
2. The Members of the Commission shall, in the general interest of the Community, be completely independent in the performance of their duties.
In the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. They shall refrain from any action incompatible with their duties. Each Member State undertakes to respect this principle and not to seek to influence the Members of the Commission 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. When entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. In the event of any breach of these obligations, the Court of Justice may, on application by the Council or the Commission, rule that the Member concerned be, according to the circumstances, either compulsorily retired in accordance with Article 216 or deprived of his right to a pension or other benefits in its stead.
As pointed out, there is nothing under the treaties that would prevent a peer taking up the post of EU Commissioner, as was the case with Lord Cockfield. The only problem lies with the interpretation of the code of conduct, but that may be interpreted in such a way as not to preclude Baroness Ashton from serving. As a peer, she is not the holder of a paid office and can take leave of absence (though the effect of that is simply to say you will not be attending the House); that will probably be sufficient for her to take up the post.
As already mentioned, the Statutory Instrument (already in force, though being challenged shortly in the Lords on a prayer to negate it) refers only to MEPs. It has no relevance to the Commissioners.
She can seek leave of absence from the House of Lords.
Lady Ashton of Upholland was admitted to the Privy Council in 2006 (occupation, whether gainful or not) and she swore an oath of which the last paragraph states
"You will to your uttermost bear Faith and Allegiance to the Queen's Majesty; and will assist and defend all 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. And generally in all things you will do as a faithful and true Servant ought to do to Her Majesty so help you God."
This will be in direct contradiction to the solemn Oath she will have to swear before the Court of Justice of the European Union
“To perform my duties in complete independence, in the general interests of the communities; in carrying out my duties, neither to seek nor to take instruction from any government or any other body; to refrain from any action incompatible with my duties.”
In other words, she, not being a person compelled to do so, will take an engagement in the nature of an oath intending to bind the said accused to commit an offence namely treason.
Juramentum est indivisibile, et non est admittendum in parte verum et in parte falsam.
anoneumouse:
Baroness Ashton is not the first member of the privy council to be appointed as an EU Commissioner. Indeed, she succeeds one.
At October 06, 2008 8:15 PM , Anonymous said...
"Baroness Ashton is not the first member of the privy council to be appointed as an EU Commissioner. Indeed, she succeeds one".
This is true.....................But on that logic the Crown Prosecution service would never have successfully prosecuted someone for the first time using DNA evidence.
Anonymous said...
"Under Labour, elections(and referenda) are only allowed to be held if Labour thinks it will win."
Henley?
Anoneumouse said...
At October 06, 2008 8:15 PM , Anonymous said...
"Baroness Ashton is not the first member of the privy council to be appointed as an EU Commissioner. Indeed, she succeeds one".
"This is true.....................But on that logic the Crown Prosecution service would never have successfully prosecuted someone for the first time using DNA evidence."
What on earth are you talking about? There is no logical relationship. This must qualify for non sequitur of the month.
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