During the negotiations over the Lisbon Treaty, the Labour  Foreign Secretary David Miliband gave the European Scrutiny Committee of the House of Commons the soothing assurance on February 16, 2007, that acceptance of the Charter of Fundamental Rights would not “extend the reach of European courts into British law”, and that it “only records existing rights under domestic and international law and does not create new ones”. Over the past eight years, this assurance appears to have crumbled.

Kieron Beal QC and Tom Hickman, a prominent legal academic, co-authored in 2011 a study pointing out that the Luxembourg court provided a “sledgehammer” to litigants far more powerful than the Strasbourg court: “The supremacy of EU law means that primary and subordinate national legislation which is declared incompatible with a directly effective EU law right, and therefore invalid, must be disapplied by national courts.  Fundamental rights are directly effective. Primary or subordinate domestic legislation that contravenes those rights protected by EU law must therefore be disapplied by national courts in respect of the person relying upon them.”

It is easier to bring a case to the Luxembourg Court than to the European Court of Human Rights in Strasbourg and the damages awarded by Luxembourg are far larger than by Strasbourg. The former EU Commissioner for Justice, Vivian Reding, warned in 2012 that the Charter of Fundamental Rights would become a “powerful tool”: “To all those who are not satisfied with the current state of Union law as regards fundamental rights, I say: Be patient. It has only been two years since the charter came into force. We should give it time to develop.”

These points may be viewed as Eurosceptic. This is not necessarily the case. They may equally be used by supporters of a United States of Europe (such as Commissioner Reding) to suggest that, having gone this far, the logical course of action is to accept the disappearance of national sovereignty and to pursue democracy through fully-fledged federal institutions. All I wish to do here is to state two things. First, it is vital that discussion about the character of UK democracy (and thus about sovereignty) should play a far larger part in pre-referendum discussions than has been the case so far. It would be tragic were fundamental questions about the future of the nation to be decided by elite prejudices, by economic considerations, by whether Nigel Farage’s bonhomie is appealing, or even by views on immigration and counter-terrorism. The debate about the nature of democracy in the modern world should be the key.

Second, there needs to be especially careful examination of rhetoric about “shared sovereignty” as a halfway house between national independence and federal integration. There are some things which cannot, in practice, be shared. If democracy is about giving the final say to the citizens of a country at the ballot box, it follows that the national legislatures they elect must be able to reflect their will — in other words, they must be fully sovereign. Obviously, there are practical limitations to the power of any single nation, but these are different from legal restrictions. By way of example, the ending of legal segregation in the southern states of the US did not bring de facto segregation based on economic, educational or cultural inequalities to an end. Such informal divisions are quite different to segregation by law. Similarly, increasingly complex and powerful legal restrictions on the elected UK legislature by the EU treaties have effects on democratic governance, which are not the same as de facto economic and security pressures.