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

Abstract

This paper argues electoral law can be used to 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. Two case studies will be cited: the United Kingdom Political Parties and Referendums Act 2000 and the on-going process of designing a referendum to be held in Scotland on independence in 2014, which each offer strong evidence to suggest that referendums can be meaningfully regulated by law and that a deliberative referendum process can be constructed.

Keywords: law, constitutional law, electoral law and referendums, constitutional theory, direct democracy, referendums, constitutionalism, civic republicanism, deliberative democracy, Scotland Act 1998, Scottish independence referendum, PPERA 2000, Political Parties, Elections and Referendums Act 2000