There was a massive row in the House of Commons yesterday, with the Government very nearly losing a vote on whether to proceed with the business on the agenda paper, which  scraped through by only nine votes. 

David Cameron and Theresa May had promised to give MPs a vote on the contentious issue of the European Arrest Warrant.  MPs and the media had been led to believe that’s what was happening on Monday, but it turned out that we were being duped.

For anyone who has the stomach for the procedural detail of this sleight of hand, we had been led to believe we were going to be given a vote on whether to opt in to a package of 35 EU justice and home affairs measures favoured by the Government, one of these being the European Arrest Warrant (EAW). 

But it became apparent yesterday morning when we received the day’s ‘Order Paper’ that MPs would only be asked to approve 11 of the 35 measures, just those that “require further transposition into domestic law in order to meet the UK’s obligations under them”. 

The EAW was missing from the list because it not one of the 11 measures that require further implementation, so it wasn’t covered by the draft Statutory Instrument that MPs were to vote on [1]

There was genuine and justified anger in the Chamber because the Prime Minister had promised a vote on the EAW just last week:

"I am not delaying having a vote on it. There will be a vote on it"

The Speaker rightly called it a “sorry saga”.  After explaining he had taken expert advice, he made it very clear that the Government had failed to honour their commitment that there would be a vote, stating “we should try to operate according to sensible standards rather than trying to slip things through by some sort of artifice”.

Even if we had been given a vote on all 35 measures, including the EAW, it would still have been a vote on an un-amendable, take-it-or-leave-it motion that bundled together 35 very different measures.  These included proposals on combating child pornography on the internet; setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes and security in connection with football matches with an international dimension.

I want there to be a European Arrest Warrant and I am not aligning myself with those who want to rip it up.  But I want more reform.  We must have an EAW system with adequate safeguards.  A take it or leave it vote for the status quo is a Hobson’s Choice.

We have to protect people from harm by having a system to stop people who are committing cross border crimes. Crime doesn't stop at our borders. At the same time, the system we approve must have adequate safeguards to respect fundamental human rights.

But what is wrong with the EAW as it stands? The Home Secretary is saying the shortcomings have been addressed.  It is right that reforms have been made via the Crime and Courts Act 2013 to the operation of the EAW to deal with its use for trivial offences and lengthy pre-trial detention of British residents.  These improvements are welcome.  However the changes to date do not adequately address human rights breaches in the requesting state, nor the lack of a prima facie case evidence requirement.

Liberty pointed out to the House of Lords Select Committee in September that, despite the fact that the European Arrest Warrant was negotiated over a decade ago, the standardisation of procedural safeguards for defendants are only now being negotiated at European level and are years away from reaching completion.[2]  We cannot simply sweep these fundamental human rights concerns under the carpet.

What we should have in the Commons is a debate and vote on the need for a reformed EAW, including on the call by Baroness Ludford[3] for a human rights safeguard clause so courts could refuse extradition if an individual's fundamental rights would be damaged.

This important debate has become a political football being kicked about by those who want to end our membership of the EU. What is missing is a real vote and debate about the kind of European co-operation we need and how to balance safety and protection of the public with fairness and human rights and how we do this across our borders.