European Arrest Warrant powers worth fighting to keep

Amber Rudd says it is a “priority” to stay within the European Arrest Warrant “arrangement”. The government should be able to achieve this goal without crossing its red line of ending the European Court of Justice’s jurisdiction.

Responding to MPs’ questions on Monday, Rudd said: “It is a priority for us to ensure that we remain part of the arrangement, and I can reassure members in all parts of the house that our European partners want to achieve that as well.” Rob Wainwright, the British head of Europol, echoed her comments yesterday while giving evidence to the Home Affairs Committee.

Although the EAW has its critics, no extradition treaty in the world allows as deep cooperation. It lets law enforcers move suspected criminals around Europe rapidly to face justice. Between 2004 and May 2016 official statistics show that 8,671 wanted individuals have been surrendered by the UK to other countries and 1,273 have been brought back to the UK.

There is little chance the UK can remain an official member of the EAW after Brexit, as it is an agreement specifically between EU member states. But the government should be able to negotiate a similar agreement as non-EU members Iceland and Norway have done. They benefit from the EAW’s streamlined system for surrendering suspects.

One advantage of such an arrangement is that the UK would not technically be under the ECJ’s jurisdiction – something that would ring alarm bells among the hard Brexit brigade. Norway and Iceland are required to ensure their courts take account of ECJ case law; but the ECJ is also required to take account of their courts’ case law.

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A Norway-style agreement would put UK courts and the ECJ on an equal footing. EU countries could bring disputes to the ECJ if, for example, Britain refused to surrender a suspect despite having agreed to previously. But the ECJ’s powers would only apply within this specific agreement, and its ultimate sanction would probably be to suspend or cancel the agreement – something the UK courts would have equal power to do.

Some Brexiters might still be unhappy with such an arrangement. But given Theresa May’s own history of backing the EAW, the government is unlikely to pay too much attention to them on this

There is, though, one way in which such “shadow” membership of the EAW would fall short of our current position. Many EU states, such as Germany and Poland, have provisions in their constitutions banning the extradition of their own citizens. This is waived for other EU states. It’s not clear that these governments would go through the hassle of changing their constitutions to accommodate Brexit Britain. So we may have to accept that even the best EU-UK agreement is a weaker crime-fighting tool.

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Edited by Hugo Dixon