People suspected of criminal offences should be extradited to and from Britain for trial: what can possibly be wrong be that?  This is the core of the case for extradition – and thus, by extension, for the European Arrest Warrant (EAW), on which the Commons will vote later today.  Theresa May is putting some powerful arguments for MPs deciding to opt back into the EAW.  Labour, she argues, left the Government no choice under the terms of the Lisbon Treaty but to make a binary decision about it – in or out.  Eleven EU member states have a bar on extraditing their nationals to Britain, and not signing up to the EAW would make it impossible to get criminals from the countries concerned who have committed offences here before British courts and into British prisons.

The Home Secretary has made much of the case of David Heiss, who murdered a British student, Matthew Pyke, in 2008, stabbing him 86 times.  Germany is one of the countries that does not extradite suspects to Britain – or rather was not before signing up to the EAW.  Under its terms, Heiss was back in Britain within two months of a warrant being served on him.  May’s telling of Heiss’s tale is part of her political offensive over the EAW – an artful mix of warnings and charm.  Dire tales have filled the tabloids of terrorists, killers and paedophiles who will be free to murder and maim if the Commons decides not to re-enter the EAW.  The Home Secretary has been at the disposal of anxious Tory MPs who want to voice their anxieties.

She has told them that some of the worst features of the EAW have been addressed.  Not so long ago, British citizens could be extradited on suspicion of crimes abroad that are not crimes here, or for very minor offences, or for investigation rather than charge.  Protections, May says, have been put in place.  That these needed to happen at all highlights one of the two main problems with the EAW: namely, that the legal systems of EU members states are not equivalent.  The case of Andrew Symeou tells a graphic story of what this can mean in practice.  Extradited to Greece on a murder charge based on statements extracted by Greek police through the violent intimidation of witnesses – which were later retracted – Symeou spent over ten months in a Greek prison.  He was never charged.

On this site yesterday, Nick de Bois, Symeou’s MP, argued that the Home Secretary’s new safeguards will not protect the Symeous of the future.  This points the way to the second problem with the EAW: its arbiter will be the European Court of Justice (ECJ), which will therefore be able to apply its human rights jurisprudence, drawing on the EU’s charter of fundamental rights, to the UK criminal justice system within the areas falling under EU policing and criminal justice laws that bind the UK.  The ECJ will therefore act as judge and jury in relation to whether May’s reforms of the EAW stand or fall.  Its role also raises a bigger question.  David Cameron insists that Britain must not be part of a federal Europe.  Yet here is his Government proposing to sign up to the federalisation of extradition.

Critics of the EAW argue that there are alternatives: the 1957 European Convention on Extradition (though this is flawed, since those eleven countries don’t extradite to Britain), a special extradition treaty with the EU, transitional arrangements until one is negotiated – even temporary EAW membership during such negotiations.  The case for a special treaty was put elegantly on this site last week by Christopher Howarth of Open Europe.  It is buttressed by the possibility of Britain voting to leave the EU in a referendum in only three years’ time.  This timetable is a consequence of Cameron’s own referendum plan – one underpinned by the Wharton and Neil private members’ bills on a plebiscite, which the Prime Minister himself has trooped through the lobbies to support.

Shouldn’t the Home Office be proposing an extradition plan that is, as Cameron himself used to say, “built to last” – in other words, which is capable of surviving Brexit?  Friends of May indicate that, like the Irishman in the fable, she would rather not be starting from here.  The first-opt-out-then-opt-back-in hokey cokey, they point out, is a legacy of the Lisbon Treaty that Labour signed.  The Home Secretary is part of a Coalition Government.  The Liberal Democrats would not have agreed to junking the EAW and pursuing a separate treaty back in 2010.  May, the Conservatives and the Commons are thus stuck with a binary choice: the EAW or nothing – and thus the prospect of those murderers, paedophiles and terrorists running free.

The nub of the issue is as follows.  Critics of the EAW, such as David Davis and Dominic Raab, insist that the sky would not fall in were the Commons to reject the EAW later today.  Davis maintains that those other EU countries will want their offenders back, so that they can be clamped safely behind bars.  Britain would thus not become a kind of home-grown Costa del Sol for criminals.  Raab has described the prospect of the collapse of extradition as “ridiculous scaremongering”.  They may well be right.  But let us assume for a moment that this is not so.  What is left on the table is the suggestion that innocent British citizens should be extradited so that foreign criminal suspects can also be – but without our courts having any say in the matter.

This is not a bargain that Conservative MPs should sign up to.  They are being told otherwise.  The Rochester by-election is on.  Ed Miliband is in trouble.  The Tory press has been squared.  The whisper from the Whips will be: don’t rock the boat – and if you’re unhappy, simply stay away from Westminster today.  May even has her own whipping operation. But there is never a good time to rock the boat, in the view of the powers that be.  Furthermore, today’s vote is in one sense a test of whether the Conservative Party means what it says about Europe.  The 2010 manifesto said that a Conservative Government would “negotiate…with our European partners to return powers that we believe should reside with the UK, not the EU”.  It named three specific areas.  One of them was criminal justice.

The Home Secretary will doubtless argue that this commitment has been honoured by Britain opting-out from 135 EU criminal justice measures.  But it is very hard to reconcile with opting back in to the EAW, to put it mildly.  There is a final puzzle.  Both coalition partners have become increasingly keen on differentiation as the election approaches.  For example, Chris Grayling has made a Conservative pledge to defy the ECHR.  Why is there no similar commitment to negotiate an extradition treaty as part of a renegotiation package – and preparation for Brexit, should it happen?  MPs today are lumped with voting on the EAW as part of a bigger package – much to the irritation of the European Scrutiny Committee.  Whatever their view on it as a whole, they should not allow the EAW to pass.