There is only one way to reassert our sovereignty – vote to leave

We voluntarily surrendered our powers, but the EU referendum will give us the chance to take them back

If there is one word in the political lexicon guaranteed to make the eyes glaze over, it is sovereignty. We have fought wars over it, executed a king in its name, shared it, pooled it and stood alone in our finest hour in its defence; and yet for most people it remains a rarefied concept, discussed with almost hushed reverence by academic constitutionalists and a handful of Westminster anoraks. The usual suspects were in action again last Thursday when sovereignty was debated in the House of Commons with probably no more than a couple of dozen MPs bothering to turn up.

This, though, is the big issue of the EU referendum. Red cards and emergency brakes for welfare payments may be the sticking points in David Cameron’s negotiations with his European counterparts ahead of next week’s summit in Brussels. But the question to be put to the British people, possibly in June, is really about sovereignty: who governs? Can we set our own laws, raise our own taxes, trade with whom we want, fish in our own waters, invite into the country those whom we choose and remove those we don’t? If we were an independent nation, we could do all of these things, save for activities circumscribed by international treaties. As a member of the EU, we cannot do any of them other than collectively.

However, that does not mean we are no longer a sovereign nation. After all, Parliament, wherein this sovereignty is vested, voted for all of this to happen. The 1972 European Communities Act and subsequent treaties ratified by Parliament represented a voluntary surrender of powers that we could previously exercise ourselves. At the time, there were voices warning against this (Enoch Powell and Tony Benn among them); but the issue of sovereignty was played down in the 1975 referendum.

Minutes of a Cabinet meeting held a few weeks before that 2:1 vote to stay detail how ministers argued that the impact on sovereignty should be spelled out during the campaign. Harold Wilson was urged to make Britain’s ability to block European directives a red line in his negotiations, but the idea was dropped because it was “inconsistent with membership” and unlikely to be permitted.

It would appear that another attempt is about to be made to square this particular circle. In an exchange in the Commons last week, Boris Johnson asked the Prime Minister “how the changes resulting from the negotiation will restrict the volume of legislation coming from Brussels and change the treaties so as to assert the sovereignty of this House of Commons and these Houses of Parliament?”.

Mr Cameron replied: “I am keen to do even more to put it beyond doubt that this House of Commons is sovereign. We will look to do that at the same time as concluding the negotiations.” Downing Street has since indicated that a Sovereignty Bill is on the way and in these pages yesterday Mr Johnson said the Prime Minister had done better than many expected because the UK would no longer be subject to the integrationist pull of “ever-closer union”.

It is apparent that for some leading Eurosceptics, including the London mayor, this sovereignty lock could be a determinant of their support for Mr Cameron. It is likely to be accompanied by plans for a British Bill of Rights and some sort of constitutional court. But all this is window-dressing. The primacy of EU law will be upheld for as long as the European Communities Act remains on the statute book because parliament has taken a sovereign decision to diminish its own powers. This was most starkly confirmed as long ago as 1990 when the Factortame case demonstrated that even an Act of Parliament could be overruled if it breached European law.

Europe has since encroached further on national sovereignty through various treaties. Lisbon brought justice and home affairs within the competence of the EU for the first time, and at the weekend, it emerged that the European Court of Justice may rule that Britain cannot automatically deport criminals with children who are EU citizens. This impinges on a basic tenet of sovereignty: the right of a state to protect its own citizens.

Will a Sovereignty Bill, then, make any difference to this state of affairs? It could put us on a par with other EU countries with constitutional courts, such as Germany, though the court there has never actually vetoed any EU legislation. According to Anthony Speaight QC, a member of the Commission on a Bill of Rights in the last parliament, only the Czech Republic’s senior court has ever used such a power to declare an EU law invalid in a pensions case arising from the break-up of Czechoslovakia.

Moreover, the Supreme Court already carries out this function here in the UK. But why would it ever strike down a law as incompatible with our constitution when Parliament has decreed in statute that EU law takes precedent? Since Parliament is sovereign, that is the constitutional position until it decides otherwise.

As David Lidington, the Europe Minister, said in the Commons last Thursday, “There is only one reason why European law has effect in the United Kingdom at all, and that is because Parliament has determined that that should be so and has enacted laws which give European law legal effect here.” The Conservatives actually promised a Sovereignty Bill in their 2010 election manifesto but it fell by the wayside in the deal with the Lib Dems. Instead, the principle that European law has direct effect in the UK only because of Acts of Parliament was written into legislation in 2011.

But all that does is reaffirm that this country has voluntarily pooled its sovereignty, something we should all be mindful of after 40 years. It does not let us decide who comes into the country, or allow us to reject laws agreed by the EU council even if we don’t like them – just look at the continuing shambles of the Port Services Regulation.

The proposed Sovereignty Bill, therefore, is a gigantic red herring. Parliament still retains sovereignty. The question is whether it will exercise it to restore Britain’s control over its own laws. And it will only do that if there is a vote in the referendum to leave the EU. There is no half-way house.