Using Electoral Law to Construct a Deliberative Referendum: Moving Beyond the Democratic Paradox

Abstract

Abstract

Referendums are paradoxical. For some, they represent an ideal model of democracy. For others, however, the referendum is a dangerous device precisely because it is considered to imperil democracy—envisaged by the referendum's critics in exclusively representative form—and as such is best excluded from processes of constitutional change. In this article I address the three main objections to the referendum: that they lend themselves by definition to elite control and manipulation; that there is an in-built tendency of the referendum process merely to aggregate pre-formed opinions rather than to foster meaningful deliberation; and that referendums consolidate and even reify simple majoritarian decision making at the expense of minority and individual interests.

I argue first that these objections are problems of practice not principle, and secondly that the recent turn in deliberative theory offers solutions to each of these problems by suggesting ways to instantiate good practice in the design and regulation of the referendum based upon principles of popular participation, public reasoning, and pluralism in decision making. In particular, properly constructed electoral law and models of regulation can help construct a “deliberative referendum.” This can be done by legal controls in areas such as independent oversight of question-setting, citizen engagement in question formation, guidelines on referendum timing and campaign length, franchise rules, the provision of information to citizens, and laws regulating funding, expenditure, and advertising. I illustrate how the deliberative referendum can be built, drawing upon examples of good (and bad) practice in referendum use throughout the world, while also referring to the growing move towards international standardization in referendum process through institutions such as the Venice Commission of the Council of Europe. The United Kingdom law on referendums and the legislative regime for the forthcoming referendum on independence for Scotland in 2014 are used as principal case studies.