In the 17th century, Britain fought a civil war over the principle that no one – not even the King – should be above the law. This conflict resulted in the destruction of the concept of divine right in Britain and the gradual emergence of the system of constitutional monarchy and parliamentary democracy that has formed the basis of so many constitutions ever since (yes, even some of those without monarchs involved).

But at its heart, the English Civil War laid down the concept of the rule of law. This was such a good principle that pretty much the entire world runs on it now, in one form or another.

This idea that no one should be above the law was the first principle of the emancipation of the people. Without this fundamental concept, the subsequent developments in Western ideas of liberty and democracy (primarily via the French and American Revolutions, both partially inspired by aspects of England’s Civil War rhetoric) could never have progressed – for without the rule of law, we are nothing. We survive merely upon the whim of others. All we have and all we are can be taken away in an instant, and there is nothing we can do about it.

In 21st century France, all the Roma have is being taken. Systematically. By the state. Which in turn pleads that it is merely supporting the rule of law, because “they” are in the country illegally. Even though, in most cases, the French state has no idea precisely who “they” are, because “they” don’t deserve to be tried on a case-by-case basis to determine who is and who is not in France illegally. “They” don’t deserve to be presumed innocent. “They” are just a group of undesirables. “They” don’t have names, or rights. “They” are automatically guilty, merely by being of a particular ethnicity. “They” merely need to be removed.

And yet France has the gall to complain when the European Union’s Justice Commissioner points out the similarities between their current actions towards the Roma and the ethnic persecutions of the Second World War?

In 17th century Britain and 18th century France and America, the call was for no monarch to be above the law. In the 21st century the call should be that no government – or, to be precise, no state – should be above the law.

I’ve long argued that this is one of my key reasons for favouring some form of supranational governmental structure:

I for one would welcome legal restrictions on the ability of the state to interfere in our lives through unjust laws. I would like there to be lines in the sand, over which no government can step.

The Economist’s new Charlemagne has the best overview of the background to the current crisis over France’s explusion of the Roma, while The European Citizen has the best overview of the implications of French treatment of Justice Commissioner Viviane Reding’s strongly-worded speech:

Meanwhile, France is hitting back in a manner that only further underlines the fundamental problem – the French government’s belief in the divine right of states: “That is not how you talk to a large state,” says the French Europe minister.

In the old days, no. No it wasn’t. Because if you talked to a large state in a manner they disliked, they were likely to vent their anger through force, just as the monarchs of old did before them. And look how well that turned out for France, back in 1870-71, 1914-18 and 1939-45…

This is why the English Civil War was fought. It’s why the French Revolution started. It’s why the American Revolution happened. “The rule of law” isn’t just about words written in some dusty textbook – it’s about core, fundamental principles. It always has been. It’s about the rights of man – hence Thomas Paine’s use of that phrase as the title of his most famous work. In another, Common Sense, he likewise noted “in America, the law is King”.

This is a principle that the EU has been trying to bring to Europe, a mere two centuries late.

How big does a state have to be to be above the rule of law – laws that France has signed up to, lest we forget? Laws that this very French government recently reaffirmed through the ratification of the Lisbon Treaty? Principles that every member of the UN and Council of Europe has signed up to via the Universal Declaration of Human Rights and European Convention on Human Rights (both of which exist independently of the EU, in parallel to its own rules, so important are these principles considered)?

If France can get away with breaking internationally-agreed laws designed to protect not just ethnic minorities but individuals of any race, colour or creed just because she’s large, can an even bigger country get away with breaking laws designed to protect France? A bigger country like, say, Germany? Remember how that went, France? The Nazis also won an election – does that mean they had the right to invade?

Just as one of the prime motivators of the English Civil War, French Revolution and American Revolution was to escape the oppression of kings, so one of the prime motivators for the formation of what has now become the EU was to protect Europe’s many peoples from the oppression of states, from governments who believe they have some kind of divine right to do what they like because they’ve got the largest army, but also – in the modern world – because they received more votes in an election.

Sorry, chaps – but the rule of law is not trumped by who has the most votes, just as it isn’t trumped by who has the most soldiers, or the biggest stick. Being voted into office doesn’t mean you can do what you like any more than being king means you can do what you like. We’ve progressed beyond that stage.

Or, at least, I thought we had.

Two interesting developments this week have prompted some ponderings…

1) The European Court of Human Rights has ruled the UK police’s stop and search tactics illegal

This creates a serious dilemma for anti-EU libertarians, as shown by the response of anti-EU blogger 13th Spitfire in the (fascinating) comments thread on law blog Charon QC’s coverage of the ruling (via the rather good Jack of Kent). As 13th Spitfire puts it:

Though I sincerely disagree with the Stop and Search laws, it just leaves a very bad taste in the mouth that we have to be told by a foreign court that our domestic proceedings, and by extension our parliament, is illegal.

2) The EU-withdrawalist UK Independence Party has announced that it favours a ban on the burka. This despite UKIP long having portrayed itself as a more or less libertarian party.

Libertarians are a hugely over-represented breed among the political blogosphere. There’s hundreds of them, on both sides of the Atlantic – but in real world politics there’s barely a handful, and they rarely even retain their deposits in elections. They are, however, so vocal on the web that few online political discussions can pass without a libertarian of some stripe cropping up to make their case. As such, libertarian arguments increasinly need to be addressed, even while libertarianism remains decidedly fringe.

The prime unifying belief that they share is that individual liberty is paramount, and that the role of the state should be kept as minimal as feasibly possible. A libertarian, as a rule, opposes bans and restrictions – taking John Stuart Mill’s laudable harm principle as the starting point for pretty much all their approaches to the world, but taking this idea far further than Mill himself (or his fellow small-”L” liberals) ever did.

The libertarian argument against European integration in general – and the European Union specifically – is usually that it implies the imposition of a new layer of government above the national. As libertarians believe small government to be the best form, this is an understandable approach. After all, if you already have a national ministry dealing with policy area X, where’s the need for an additional European-level administration which deals with the same area?

What happens next, however, is that the majority of libertarians seem to take this entirely reasonable argument against the repetition/overlap of governmental/administrative layers, and from it extrapolate that it is the super-national, European-level layer of government/administration which is the unnecessary one.

If the smallest amount of governmental/state interference in the life of the individual – and the maximum level of individual liberty – is the key aim, then surely it is the *national* layer which is superfluous?

If we agree that there are a few basic fundamentals for individual liberty – the right to trial, to vote, to be free from persecution, to free speech, etc. etc. (read Mill and the US declaration of independence for more) – then why, in the case of the EU, have these asserted 27 times in 27 countries, when once should be enough?

If we agree, as most libertarians do, that some laws and regulations are necessary for the smooth functioning of society – agreed systems of weights and measures (to prevent fraud), some level of health and safety guarantees, product standards, environmental/pollution restrictions (all taking Mill’s dictum that as individuals we shouldn’t harm others and applying it to corporations and government bodies), etc. etc. – why have 27 different variants of these laws and regulations, when what’s good for one of us is surely good for all?

This is the fundamental reason why libertarians should be in favour of European integration (note: not necessarily the current nature of European integration or current European bodies, both EU and non-EU, but the general principle) – for an individual in country X to have to abide by different laws than an individual in country Y implies a strong likelihood that the two are experiencing different levels of individual freedom. Plus, most importantly, if individual X goes to country Y, then he/she will have to abide by country Y’s laws – a potential restriction on that individual’s liberty of movement. (Case study: In Germany and Austria, it is illegal to deny the Holocaust; it is not in the UK. When British citizen David Irving went to Austria, having denied the Holocaust, he was arrested and imprisoned.)

Of course, restricting this to a mere continent (and not even all of that) is not ideal. The true libertarian would agree that liberty is universal – for true liberty to exist, what applies to one individual should apply to us all – and therefore we should be pushing for world government, where everyone on the planet has the same rights as everyone else.

But this still doesn’t take away from the fact that if you want small government for maximum individual liberty, the higher the level at which the basic laws and regulations are imposed, the better. Universal is the ideal (hence the UN’s Universal Declaration of Human Rights), but if that proves impossible for now then you surely go for as broad an area as you can? The best part of a continent is not a bad starting point, and is certainly better than a mere individual country. Especially when, as the European Court of Human Rights ruling demonstrates, individual countries cannot be relied upon to safeguard the liberties of their citizens.

I have long stated this to be one of my prime motivations for supporting European integration: the ability of super-national bodies to restrict the power that nation states can hold over the individual. Case in point: if you are British, you have obligations but few rights – we remain, technically, subjects, not citizens. As I have argued before (in some detail), it was only with the introduction of EU citizenship that

“for the first time in Britain’s history, British citizens/subjects have the right to vote, to free movement, and so on, rather than just the privilege – we are no longer dependant upon the whim of parliament.”

And yet still we find self-professed libertarians clinging to the old, liberty-restricting national apparatus, rather than the new, liberty-granting super-national bodies of the EU and Council of Europe. Supposedly state-hating libertarians who cling to the state.

It genuinely baffles me. Can any libertarian provide me with a libertarian case for this apparent nationalism? Because the way I see it, nationalism and libertarianism are mutually exclusive – one being a collective idea focussed around the concept of a geographically and legally-restrictive state, the other focussed around the ideas of individualism and freedom.

Via the Convention on Modern Liberty‘s Twitter feed and following yesterday’s post on German concerns about the EU being used as a democratic bypass comes news of a worrying development for the freedom of every EU citizen:

People may be aware of the debate in the UK over access to communications data… but are less familiar with the role the UK government has played in the EU, where it first proposed mandatory data retention, backed by France, Ireland and Sweden, in April 2004. The final stages of its passage through the EU came under the UK presidency of the council, and their officials crawled all over the European parliament to get it passed. Despite widespread opposition from more than 200 civil society groups, the EU data protection commissioners and many in the parliament organised an alliance of the PSE (Socialist group, of which they are part) and the centre-right PPE (Conservative group) to steamroller it through in December 2005…

We have good reason to be very critical of the authoritarian direction the government has taken at home, but we should be equally vigilant of what the UK government gets up to in the EU – and at the same time wake up to the fact that many of the threats to our freedoms and liberties now originate from the EU. Indeed, the surveillance society, which makes suspects of us all, is to be the centrepiece of the next five-year plan for EU justice and home affairs to be adopted later this year (pdf).

As the Convention on Modern Liberty tweet noted, “EU law is now a major threat to privacy… And it’s not eurosceptic to say that”.

But, of course, this in nothing new. I noted the Blair government’s attempts to use the EU to force through unpopular changes a few years back, and was disgusted [on ID cards] and outraged [over internet regulation proposals - the first hints of this current unpleasant legislation] at the time. The real problem is, as ever, the governments of the member states and their ability to wrap up such deals behind closed doors at meetings of the Council – combined with a lack of reporting on the EU in the mainstream press that allows major national newspapers like the Guardian to fail to notice such distasteful legislation until it has already been passed, challenged in court, and passed again.

Give the people of Europe more say in how the EU is run, give the European Parliament more power to halt such unpleasantness, then press reporting on EU affairs would become more attentive, such moves by member state governments to abuse both the EU and its citizens would be spotted sooner, and effective pan-European opposition could be mobilised. As it is, everyone only finds out after it’s too late – no amount of attempts to highlight dodgy legislation from a mere small blog such as this one will ever reach enough people in time.

Meanwhile, let’s just sit back and marvel at how it is the UK – that last European bastion against the forces of totalitarian repression during the 1940s – that has been the driving force behind EU legislation that would not look out of place in Hitler’s Germany, Stalin’s Russia, Mussolini’s Italy, Franco’s Spain, Salazar’s Portugal or Vichy France.

Come on, EU – you’re meant to be better than this.

Update: Oh, the irony – the European Commission’s now complaining about people trying to steal its confidential data. What out OUR confidential data, Commission types?

Good news for fascists today – according to the EU, it’s no longer racist to target a particular ethnic group based on folklore that suggests they’re all criminals.

Up next from Italy and the EU, fresh policies to deal with the threat of witchcraft from little old ladies with pet cats (mostly involving rivers, rocks and bonfires), special breeding programmes to provide more hunchbacks so we can rub their humps for luck to get out of the credit crunch, and a new drive to round up all Jews into ghettoes to prevent them from using their vast wealth and international network of spies and accomplices to secretly rule the world.

El Pais has more (in Spanish – or automatically translated)

Three thoughts on all the Westminster excitement (for non-UK readers, the short version – the Shadow Home Secretary has resigned his seat as MP to force a by-election, which he has announced that he intends to fight on the single issue of the erosion of civil liberties in Britain, following the contentious and close vote to extend the legal period of detention without trial to 42 days):

1) No one (outside of blogland) really cares about a bunch of muslims being locked up (and no one outside of blogland thinks the risk of anyone other than terrorist suspects being affected is a serious one). Nor do they care much about ID cards and a national ID database, or about there being loads of CCTV cameras invading our privacy every second of the day with no discernible impact on crime rates (the “if you’ve done nothing wrong you’ve got nothing to hide” mentality still being massively dominant) when their house price is plummeting and/or it’s costing more to fill up at the pumps and do the weekly shop. The next election will almost certainly be fought over the economy, with Gordon Brown’s ten years as Chancellor being painted as ten years of luck that set us up for a crash by the Tories, and as ten years of stability showing Gordon Brown to be the best man to weather the economic storm by Labour. Civil Liberties are simply not an election-winning issue.

2) This is aimed at Cameron far more than Labour, and smacks of sour grapes that Davis hasn’t got the influence within the party to make this a central plank of the Tory attack strategy. He’s throwing his toys out of the pram, because two-time leadership loser Davis can’t hack that he’s not the boss. He almost certainly does believe (pretty much) everything he says on the civil liberties front – he’s got a decent enough track record, (though his support of 28 days does raise a few questions and contradictory positions on gay rights do cause some concern) – but it’s hard not to see this as anything more than another internal Tory party spat.

3) It is, however, moderately interesting that one of the most senior opposition frontbenchers sees parliament’s influence as so diminished that it’s easier to spread his message (pretty much literally) from a soapbox. Maybe someone should get the man a blog…

(Far more interesting, of course, is the result of the Irish Lisbon Treaty referendum – expected later today, and expected to be very close indeed. But will there be any irregularities that may allow a legal challenge from the losing side?)

Yes, that’s right. The police have asked that every single last one of us has our DNA sampled just in case we commit a heinous crime. And the government are AGAINST it.

Hang on. Was there a coup d’etat overnight or something? Where’s the REAL government?

The Home Office said a mandatory database “would raise significant practical and ethical issues”

It’s a veritable Damascene conversion! I eagerly await the now surely inevitable announcement of the abandonment of the equally impractical and ethically suspect ID database.

Home Office minister Tony McNulty told BBC that a national database was not a “silver bullet” and that it would raise practical as well as civil liberties issues.

Yes, that’s THE Tony McNulty. Him of blind loyalty to the ID scheme fame.

“How to maintain the security of a database with 4.5m people on it is one thing,” he said.

“Doing that for 60m people is another.”

Hurrah! Does this mean they’ve seen the light?

Hint: almost certainly not.

It was only a matter of time before Britain’s ridiculous libel laws led to an internet service provider shutting down a bunch of websites in the face of a writ.

But the ISP hosting Bloggerheads and Craig Murray‘s blog, which appears to have shut down one of their servers following a writ from Uzbek millionaire Alisher Usmanov, have been a bit dumb on this one.

Because rather than point out that doing them for libel for hosting a website is much akin to suing the company that produces the paper a newspaper is printed on rather than the newspaper itself, they’ve scrapped not just the two sites accused of the libel, but a bunch of innocent bystanders – including the decidedly high-profile Tory Boris Johnson.

Which strikes me as a breach of contract on the ISP’s part, which should open them up to being sued by those whose websites have been affected – in the case of Boris, potentially for large amounts of money due to the potential damage the loss of service could do to his campaign.

But ignoring that, depending on how long his website’s down (and whether any data has been lost in the process), this odd bit of fall-out from Usmanov’s legal threats could have a serious impact on the Boris campaign to become mayor of London. Were such a writ to be issued during a general election, the results could be major.

So, come on elected representatives – you may be able to say whatever you like about whomever you like from the floor of the Commons chamber, but surely now that Boris has been hit you can see the stupidity of a libel system that can have such results?

At the very least, isn’t it about time – a good two decades after the web began to come into use – that we determined who is legally responsible for online libels? Otherwise anyone with any money will be able to shut down freedom of expression merely through a few well-placed threats. Anyone with any sense would think it fair for Usmanov to sue Tim Ireland and Craig Murray if they have indeed libelled him (though considering their lack of money, you’d have to think it a bit pointless and silly) – but why should their web hosts be at risk for something that they had nothing to do with?

(The current Private Eye has another ridiculous libel case, revolving around the litigation-happy Saudi billionaire Sheikh Khalid bin Mahfouz, who has just forced Cambridge University Press to pulp a book with a supposed libel, and who has previously taken French writers to court in Britain over an alleged libel in an American edition of a book when as few as 23 copies were sold in the UK via Amazon.com… Because, utterly insanely, that’s currently considered enough to bring it within the jurisdiction of the British courts.)

DK has the best roundup and overview of this latest EU-wide attack on freedom of speech from our dear German chums (60 years on still not realising that you don’t fight fascism by banning things), with the International Herald Tribune providing a nice summary of the issues (with a bit less of the invective).

Personally, I think we should extend this even further – if we’re banning Holocaust denial, let’s ban other forms of denial that contributed to the Holocaust.

So, let’s make it a criminal offence for Germans to claim “yes, I/my father/grandfather was a member of the Nazi party, but I/he didn’t really BELIEVE any of it, honest” – and, while we’re at it, also ban French people from going on about the glory of the Resistance without simultaneously adding the qualifier “but of course the vast, vast majority of the country either just kept their heads down, and did nothing to stop the Nazis from carting off thousands of French Jews, Homosexuals, etc. – or actively collaborated, like the large chunk of the country that was part of the Vichy regime”.

But, of course, as adding on the denial of Stalin’s genocides as an offence was explicitly rejected, there’s not much chance of that. This new law, in other words, merely sweeps the ills of Europe’s recent past under the carpet, and continues to raise the Nazi regime onto an almost sacred pedestal. Hatred of Hitler is in danger of becoming Europe’s new official religion.

In other news, my computer’s still dead, so Andy of Siberian Light will be hosting the Euroblog Roundup this week – entries, as usual, to EUroundup [at] gmail [dot] com – ta! (And yes, I’m fully aware that Siberia is not, by any stretch of the imagination, part of Europe. Shush…)

I was a bit annoyed last year when I ended up getting lumbered with one of the first of the new “e-passport” things. Not any more – I should have had more faith in our government’s ability to cock everything up. It’s likely to break in a couple of years – huzzah! (Meanwhile, everyone else is going to have their fingerprints taken like a common criminal as from the year after next. Welcome to our brave new world…)

Still stupidly busy by the by – and if anyone can tell me why the sidebar screws up in that first link to an archive page (as it tends to do with certain parts of this template for reasons best known to itself, probably due to a misplaced /div tag in one of the php files, though Christ alone knows which one) then I’d be grateful. Otherwise I may have to do a hasty re-design when I get a moment – which probably won’t be until at least this time next week…

Sorry – missed this yesterday… The [tag]European Parliament[/tag] has yet to vote on the final report following its investigation into CIA [tag]extraordinary rendition[/tag] flights in Europe, but finalised it is (and you can download it from the temporary committee’s website in umpteen different languages).

In short:

“It is implausible, on the basis of the testimonies and documents received, that certain European governments were not aware of the activities linked to extraordinary rendition on their territory… [it is] implausible that many hundreds of flights …could have taken place without the knowledge of either the security services or the intelligence service”

Quick and easy:

More: Deutsche Welle, the Independent, EU Observer, Former UK Ambassador Craig Murray, EurActiv

The European Parliament’s Socialist Group (to which the UK’s Labour party MEPs belong….) has backed the report, the EPP-ED group has criticised it for being biased and inaccurate, so it may still not get through the European parliament without a fight. A lot of people in a lot of governments want this suppressed as much as possible.

Not that they really care, of course – it’s not like anyone’s going to be able to force them to act on it…