Britain's new European Commissioner is not well known. Over the last year, she has been Leader of the House of Lords, prior to which she held junior ministerial rank, first at Education, then at Constitutional Affairs. She is also an alumna of Bedford College, London.

Her appointment is driven by the anxiety of Gordon Brown to avoid another by-election defeat, which would have happened if he had nominated an MP, rather than concern that the Commission should have a well-known politician for the Trade portfolio. The Trade Commissioner negotiates all external trade deals for an EU of 490 million inhabitants and is one of the most powerful jobs in Brussels.

Although it is practice for replacement Commissioners to be approved (or possibly rejected) by the European Parliament (EP), the treaty (Arts. 214.2 and 215 TEC) is specific in empowering the EP only to reject the entire Commission at the time of its appointment (as opposed to replacements for individuals who have resigned). Art. 213.2 TEC poses a more significant challenge to the Commissioner-designate: ‘The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not’. Art. 1.1.1. of the Code of Conduct of Commissioners also declares: ‘Commissioners may not hold any public office of whatever kind’ . Since Commissioners are not permitted to hold other public office and life peerages cannot be disclaimed, the conclusion seems unambiguous. A Member of the House of Lords cannot become a Member of the European Commission. 

The legal procedure for Commissioner-designate Ashton’s appointment works as follows: Gordon Brown nominates her and she is then accepted (or rejected) by Jose Barroso, who also decides on her portfolio. This has to be ratified by a qualified majority in the Council. A Commissioner not fulfilling 'the conditions required for the performance of his duties', such as beng a member of a national parliament, may be ‘compulsorily retired’ by the European Court of Justice (Art 216 TEC). The EP, formally, has no role.

We shall have to see whether the Commissioner-designate’s leave of absence from the Lords will be accepted by a qualified majority in the Council, the EP (if it is consulted), and the European Court of Justice. The precedent of Lord Cockfield, the Single Market Commissioner from 1985 to 1989, may be cited. Being unable to resign his peerage, he took leave of absence from the Lords, which was not challenged back in 1985. Given the extent of reform to the House of Lords over the last decade, first with the abolition of hereditary peers, then the creation of a Supreme Court and the office of Lord Speaker, it is careless that the right of life peers to resign has not been granted.