Drafting of Legislation in Compliance with Model Laws

• A. Introduction

  The proponents of globalisation have spearheaded drives for uniform laws and thus propagated model laws. These laws, if not drafted in a simple format, may have an effect on what is drafted at the national level for those countries that choose to adopt them.
  Model laws are aimed at harmonising legislation, improving current laws for resolving regulatory problems and tasks, and bringing the laws closer to international standards of best practice. These laws are non-binding and are based on international principles of best standards, which are recommended for use in national legislation. Model laws are often used as a means of achieving uniformity. Model laws have a quasi-legislative character, and their status is unknown, inaccessible or not readily accessible.
  International cooperation in the area of legislative drafting is challenging. Any change to the legislative initiative or legislative process has a direct bearing on the innermost workings of the state. Hence, drafting of legislation in compliance with model laws or standardised laws is a setback in achieving effectiveness of the national legislation. The use of ready-made laws has the ability to promote regulatory quality, but not the overall legislative quality.
  The article will use Koen Muylle’s criteria of assessing the quality of legislation in terms of its enforceability, consistency, comprehensibility, transparency, plainness, accessibility and clarity.¹xK.J. Muylle, ‘Improving the Effectiveness of Parliamentary Legislative Procedure’, Statute Law Review, Vol. 24, No. 3, 2003, p. 171. The article aims to analyse and critique the challenges of drafting domestic legislation in compliance with model laws in regard to the quality assurance of legislation and will use aviation draft model laws as a case study. It will further analyse the impact of model laws on the legislative process as regards their impact on the role of the significant players in the legislative process.
  The purpose of standardising legal rules is to achieve conformity in the contents and quality of law across different countries.²xK. Pistor, ‘Standardisation of Law and Its Effect on Developing Countries’, G-24 Discussion Paper Series, No. 4, 2000, p. 107. It further ensures that there is consistency in the application, interpretation and enforcement of the law.³xIbid. Conformity to all the above criteria is difficult to achieve. Hence, it is on the basis of the above points that the article aims to critically analyse how the drafting of domestic legislation in conformity with set standards impacts on the drafting process as regards member states’ obligations to expeditiously draft and implement domestic laws in an effort to respond to global crisis. The article will also analyse and critique how the drafting of legislation using model laws and under immense pressure impacts on the quality assurance of the legislative proposal. It will also determine whether model laws serve as a tool for enhancing the legislative process by reducing time that would otherwise be spent on drafting of complex and technical legislation. The expectation as regards the use of standardised laws is that it accelerates the process of legal convergence and doubles the benefit of reducing the transaction costs for transnational investors and increasing the quality of legal institutions. The article will also critically analyse how the use of set standards impacts on the role that ought to be executed by the drafter in the drafting of legislation.
  The article uses model laws set up by the International Civil Aviation Organisation as a case study. I have chosen to use this example or case study, because ICAO as a quasi-legislative authority has the power to promulgate standards and prescribe standards for governing of international aviation safety and obliging member states to implement these standards through their domestic laws. The work of ICAO provides a particularly interesting case study on how to react to unprecedented challenge that requires a fast legislative response, involving not only many technical aspects but also global application. ICAO’s reaction to the threat of terrorism provides an interesting example of effective lawmaking.
  We now live in a world that is more interdependent and increasingly more integrated, and the legislative initiative has shifted. It is now significantly so within the ambit of both international and regional organisations. This prompts cross-cultural, legislative interaction as increasingly, international legal norms need to be implemented in, and aligned with, domestic laws. These organisations may take the legislative initiative, either by setting multilateral standards, drafting uniform codes or, in some cases enacting legislative provisions that nationals are required to transpose into their domestic law. There are perhaps dangers as well as advantages to this globalisation of legislative initiative, which are analysed in the later parts of this article. Uniform solutions to legislative problems tend to lead to considerable disruption when a uniform solution is replaced by another solution. Reaching uniform solutions may need compromise, which in turn require rather open-textured drafting.⁴xEditorial, ‘The Globalisation of Legislation’, Statute Law Review, Vol. 22, 2001, p. iv. Perhaps the greatest weakness of the trend is its lack of democracy. It is a legislative process that may be far removed from those whom it affects and in a sense negates trends towards bringing government closer to the people by way of regionalisation and devolution.⁵xIbid. This lack of democratic devolution may have other repercussions; thus those who draft domestic laws that respond to this globalisation of legislative initiative are generally unlikely to be involved in the international process.
  The drafting of national legislation in compliance with model laws is a setback in achieving effectiveness of domestic legislation. The term effectiveness appears to be elusive.⁶xS. Kirchner, ‘Effective Law Making in Times of Global Crisis’, Goettingen Journal of International Law, Vol. 2, No. 1, 2010, p. 275. In the context of any legislation, effectiveness can only be reasonably measured against the goal that is pursued with the newly created rule. Key ingredients of effectiveness of new legislation, which aims at solving a global crisis, are not only the speediness of the legislative process, but also the binding nature of the rule in question.⁷xIbid. Crisis requires effective legislation, in terms of both speedy creation and the promise of compliance.⁸xIbid., at 275.
  Law without compliance and enforcement is like poetry, it is pleasing to the ear, but has little to do with the practical world in which we live. The study of the efforts to achieve uniformity in international norms and compliance with international legal obligations reveals mixed success, even in areas where there is widespread consensus for the need to have international harmony. Thus, given the inherent sovereignty of the states, the heterogeneous levels of economic ability and the diversity of political priorities, securing compliance with international obligations is rarely an effortless task.⁹xP.S. Dempsey, ‘Compliance and Enforcement in International Law: Achieving Global Uniformity in Aviation Safety’, North Carolina Journal of International Law and Commercial Regulation, Vol. 30, No. 1, 2004, p. 3.
  Commercial international aviation provides a useful case study of how the world community seeks to achieve mutual self-interest by securing global harmony in law. The interplay between conventional international law, quasi-legal standards promulgated by international organisations and national laws, regulations and procedures offers insights as to how complex international enterprises, such as commercial aviation, play on the world stage.¹⁰xIbid.
  Professor Michael Milde argues that the implementation of these laws by contracting states on a global level is a matter of grave concern and doubt.¹¹xProf. M. Milde in P. Dempsey, ‘Compliance and Enforcement in International Law: Achieving Global Uniformity in Aviation Safety’, North Carolina Journal of International Law and Commercial Regulation, Vol. 30, No. 1, 2004, p. 20. The use of Model laws is a good example of possible limitations of compliance to conform national legislation to standards elaborated elsewhere while possibly facilitating international trade also tends to reinforce ‘law-giving’ leadership of the drafting body, without assuring actual participation of the receiving states in the drafting process and without providing a link between the body in charge of asserting compliance with such standards.¹²x‘Uniform Law as a Means of Technical Assistance to Developing Countries’, 1973, p. 71. The use of model laws as a means of technical assistance should be on quality of legislation rather than on worldwide or regional uniformity.¹³xIbid. Thus, the compatibility of the new legislation with the national legal context is most important.
  The structure of this article is as follows: Section A is the Introduction and gives an overview of what model laws entail and their impact on the drafting of national legislation. Section B discusses the problems of dependence on standardised rules with pre-existing legal order and analyses it in terms of the following Quality Criteria: I. Enforceability: Lack of evaluation of the practicability of model laws in the national context impact on the quality assurance of domestic legislation. II. Consistency: It is crucial to ensure consistency in the language and terminology of model laws with the existing national legislation to enhance effectiveness of national legislation. III. Comprehensibility: Model law provisions are often convoluted and unclear; it is therefore crucial to ensure that transposition of model laws into domestic legislation uses language that will be understood in the national context. IV. Transparency: Lack of consultation in the conceptualisation of model laws with the policy implementer’s impact on the quality assurance of the model laws when transposed into domestic legislation. V. Plainness: Model law provisions are often complex, detailed and technical, lack of drafting national legislation in a language that is easy to transpose and comprehend in the national context impact on quality of legislation. VI. Accessibility: Those involved in the drafting and implementation of model laws at the national level are often not involved in the conceptualisation of model laws, and this hampers the feasibility and effectiveness of drafting national legislation. VII. Clarity: Understanding and transparency enhance predictability of the law. Model laws are often drafted in convoluted language, and their transposition into domestic legislation impacts on the effectiveness of legislation. Section C analyses the impact of model laws on the legislative drafting process and the quality control mechanisms available internally. It provides an overview of the impact of model laws on the role played by the legislative drafter and Parliament in quality assurance of national legislation. It further provides an overview of the implications of drafting in compliance with international or regional obligations, such as the time frame for compliance and the impact of draft model law instructions on the legislative process. Section D is the conclusion and gives an overview of the impact of model laws on the drafting of quality national legislation. It also gives an overview of the pros and cons of model laws on the legislative process.

• B. Impact of Model Laws on Quality of Legislation

  Quality of legislation has become a matter of increasing social and political interest. This has been caused by broad concerns as to the complexity and lack of transparency of the decision-making process and the intrusiveness of national rules, which are criticised as inaccessible, unclear and unnecessarily inconsistent, to quote but a few. High-quality legislation is necessary for the credibility of the legislator in a constitutional democracy.
  The quality expectations are that the legislation must be clear, unambiguous, simple and precise.¹⁴xV. Vanterpool, ‘A Critical Look at Achieving Quality in Legislation’, European Journal of Law Reform, Vol. 9, No. 2 2007, p. 195. These standards of quality legislation are effectively the pillars on which quality rests throughout the drafting process. The goal of achieving quality in the use of model laws to draft national laws is inevitable and complex.
  Quality of legislation has two aspects. The first aspect concerns the substance of the law, which pertains mainly to legislative policy and covers the preparation of the new legislation and the assessment of existing legislation as regards the transposition and assessment of the proper application of such legislation.¹⁵xJ.-C. Piris, ‘The Quality of Community Legislation: The View Point of the Council of Legal Service’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 28. The second aspect entails the form of legislation (quality of legislative drafting) and how accessible it is to the public.¹⁶xIbid. Hence, the article will analyse how model laws impact on the quality of drafting domestic legislation and the quality assurance of the end product. The quality of legislation is commonly attached to effectiveness.¹⁷xH. Xanthaki, ‘On Transferability of Legislative Solutions: The Functionality Test’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008, p. 5. Effectiveness is not limited to implementation, enforcement, impact and compliance, but may include both the legal norms and the following of such norms.¹⁸xIbid., at 6. As our case study is to analyse the effectiveness of legislation drafted in compliance with aviation draft model laws, it is worth noting that the quality of legislation has both a legal and an economic dimension. Such legislation will often be approached from either a legal or an economic angle and may compromise on the quality assurance of the end product.

  I. Enforceability

  Enforceability is a key ingredient of effective legislation.¹⁹xKirchner, 2010, at 290. A major element in the legislative process is to determine the effectiveness of proposed legislation.²⁰xA. Kellermann, ‘Guidelines on Quality of EU Legislation and Its Impact on Albania’, European Journal of Law Reform, Vol. 10, No.2, 2008, p. 198. Evaluation of the enforceability of legislation should be treated as an integral part of the lawmaking process.²¹xIbid., at 199. In order to be effective, the rule of law requires that any regulatory rules be workable.²²xJ.P. Salembier, ‘Designing Regulatory Systems: A Template for Regulatory Rule-Making’, Statute Law Review, Vol. 23, No. 3, 2002, p. 172. Thus, rules must be feasible in both practical and economic terms. Member states are responsible for the enforcement of legal rules drafted in accordance with international obligations, and the enforcement of such rules is dependent upon the existing national systems. A more comprehensive rule regarding the quality of rule-making applied in member states includes quality checks at the conception stage, of whether the rules envisaged are fit to be adequately enforced. Rules must be capable of being applied by those whom they concern, taking into account existing administrative and social structures.
  The test for harmonisation of laws is the enforcement of the new law.²³xPistor, 2000, at 106. Even if it were possible to design a perfect law or to develop the best standards for a particular area of the law, the incorporation of the law into the domestic legal system is not a guarantee for it to become effective.²⁴xIbid., at 107. Thus, the process of lawmaking and the compatibility of the new rules with pre-existing ones as well as with given economic and political conditions is more important than the contents of the supplied rules.²⁵xIbid. Quality legislation must be easy to transpose and apply. It is crucial for those involved in the drafting of domestic legislation in compliance with model laws to ensure that the new law will be easy to transpose and fit within the existing national legal system. Assessment of enforceability of the new law is often disregarded, as legislation drafted in compliance with international obligation is drafted for purposes of compliance without taking into consideration the enforceability and practicality of the new law. This may have shortcomings in respect of the enforceability of the new law, such as lack of the appropriate body or personnel and resources for the implementation of the new law. Draft model laws as transposed into domestic legislation should be integrated to form part of the existing legal system. It is worth noting that the provisions in the model laws may conflict with the existing legal system, hence calling for the recasting of the model provisions to accommodate them in the domestic legal system. It is also worth noting that because of the circumstances under which the domestic law is transposed and the technicality of the subject matter, the law is drafted and passed but fails the quality test of implementation as a result of foreign concepts introduced by the new law.
  In practice, those who implement and enforce the rules are often not involved in the development of draft model laws by international bodies. There is a need to ensure that community law is effective and properly implemented in the member states, a process to which ordinary people and businesses as well as administrators and courts actively contribute.²⁶xPiris, 1998, at 26. From the foregoing, it is clear that there are inherent challenges in so far as the incorporation of the model laws into domestic legislation is concerned.
  Section 37 of the SADC Draft Model Law on Civil Aviation illustrates the workability of model laws at the domestic level, and it provides that:

  The Director of Civil Aviation Authority shall have the power to assess violation of the Act and impose civil penalties prescribed in the regulations for such violation […].

  The provision deals with the infringement notices as an alternative to criminal penalties, a legal concept that may not be enforceable in jurisdictions whereby the Public Prosecutions has the mandate to prosecute. It should be noted that the draft model law will introduce a new legal concept that will not only conflict with the already existing legal institutions, but will also be ultra-vires of the supreme law establishing the Public Prosecutions. Despite the conflict with the already existing legal regime, the provision, if incorporated in the domestic law, will be difficult to implement.
  The structuring of a legislative instrument that is legally effective and legally certain is an essential aspect of quality legislation. Legislative proposals should be subjected to careful analysis in relation to existing law, special responsibility areas and practicality.²⁷xG.C. Thornton, Legislative Drafting, Butterworths, London, 1996, p. 133. It is therefore crucial for the drafter to rigorously analyse the practical aspects of model laws and be satisfied that the scheme will work, and that the machinery proposed is practicable and that the legislation will be capable of enforcement.²⁸xIbid., at 138. Pistor provides that political factors should be taken seriously not only because they may delay or dwarf the standardisation, but also because they have a strong impact on the reception of the standardised rule.²⁹xPistor, 2000, at 108. Thus, if rejected for political reasons, it is unlikely that substantial efforts will be made to enforce it. It is therefore worth noting that the drafting of legislation in compliance with model laws curtails the rigorous analysis of the legislative proposal as regards the practicability of the model law at the national level. Hence, evaluation of model laws should be treated as an essential tool in improving the effectiveness of model laws at the national levels. The efficacy of the harmonised rules depends to a large extend on the ability of different countries to enforce the rules.

  II. Consistency

  Consistency in legislative drafting is extremely important. Quality legislation simply cannot exist without consistency.³⁰xL.A. Levert, ‘Work Methods and Processes in a Drafting Environment’, The Loophole, 2011, p. 36. Quality legislation must be consistent with other existing legal rules, and must also be practical.³¹xVanterpool, 2007, at 181. The workability of rules requires that any new rules that are introduced be consistent with existing rules, to avoid giving confused direction to participants that will decrease the efficacy of the regulatory system.³²xSalembier, 2002, at 173. Drafting invariably involves issues relating to terminology and language. A careful balance is required to reconcile consistency in use (that the same word should always be used with the same meaning and the same meaning expressed with the same word).³³xG. Dannemann, ‘Drafting Principles of Existing European Contract Law’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008, p. 175. Texts should be consistent and coherent as to the terminology used, their presentation and structuring. Without consistency the law lacks predictability.³⁴xXanthaki, 2008, at 11.
  Differences in legislative styles, be it domestically as a side effect of a ‘legislative silo’ or in transnational-domestic relations present challenges in the field of coordination of legislation as well as in ensuring a domestic law fits when transnational or international law requires domestic implementation or transposition.³⁵xW. Voermans, ‘Styles of Legislation and Their Effects’, Statute Law Review, Vol. 32, No. 1, 2011, p. 53. Drafting of national legislation in compliance with model laws is a setback in achieving the effectiveness of the domestic legislation in so far as consistency is concerned.
  Uniform provisions are essential to save time in drafting and to improve quality through consistency. It is imperative for the drafter and the member states to ensure that the adoption and use of model laws in the drafting of national legislation do not compromise the quality of the national legislation, as use of model laws may impact on the consistency of the language and terminology of the national legislation. Problems of consistency and compatibility may arise where the rules and concepts used in the model law are also found in different national legislation.³⁶xA.E. Kellermann, ‘Proposals for Improving the Quality of European and National Legislation’, European Journal of Law Reform, 1999, p. 12. This may cause misunderstandings and possible misinterpretation. Harmonisation of standards leaves ample room for ambiguity when translating them into specific domestic rules.³⁷xPistor, 2000, at 106. Foreign national concepts may be inconsistent with the pre-existing legal and social concepts in the law-receiving country.³⁸xIbid. It is crucial to ensure that the model laws as transposed into domestic law are consistent and compatible with pre-existing laws to avoid misinterpretation or misunderstanding of the new legislation. Thus, without ensuring complementarity between the new law and the pre-existing legal institutions, harmonisation may distort the domestic legal framework. The standards should be fitted into the domestic legal system as their meaning and interpretation depends on the pre-existing rules. Consistency increases clarity and reduces the labour of the reader, while for parliamentary counsel it produces certainty by enabling them to rely on predictable outcomes from well-established and precedented approaches.³⁹xS. Laws, ‘Consistency versus Innovation’, The Loophole, 2009, p. 1. This is highly crucial in the drafting of legislation, as introducing new concepts may confuse the users of the statute book and create misunderstanding. Legislative drafters ought to be cautious when drafting legislation in compliance with draft model laws, as there is a potential danger of departing from the traditional drafting style known by the readers and, as such, producing misinterpretation and misunderstanding. Consistency is principally to facilitate and speed interpretation and help understanding by the users, to avoid confusing the user, and to provide the user with something that is familiar and easy to navigate and to understand.⁴⁰xIbid.
  Consistency in the language will promote consistency in interpretation and recognise the need for coherency, both in language and substance in its component Acts. Consistency and conformity to the set standards are essential tools of effective legislation. It is worth noting that as regards the drafting of aviation legislation, the task is complex as the drafter has a duty to adhere to the internal standards such as the constitution, Interpretation Act just to name a few for purposes of consistency. Hence, when it comes to the task of drafting laws at the international level, the task is too technical as there ought to be adherence to the internal set standards and ensure that there is no departure from the norm of drafting provisions. Since draft model laws have their own structures, system and terminology, they lean heavily on the national legal systems, but the approach followed is of ‘pick and choose’.⁴¹xC.W.A. Timmermans, ‘How to Improve the Quality of Community Legislation: The View Point of the European Commission’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 41. Hence, when transposed into domestic legislation, the result is often a blend of national legal concepts and notions into a composite rule system that is already not easily accessible or understandable to specialists in national law.⁴²xIbid. This may also hamper the substance of the rules, the terminology used and the techniques of drafting national legislation.
  A complicating factor that relates more to the consistency of rule-making results from the constraints imposed by the principle of vested powers. Thus, each system must be founded upon the legal base granting the relevant competence. Decision-making procedures often vary according to the legal base, which hence makes it impossible or undesirable for institutional reasons to use one legal base on different legal systems. Hence, this causes legislation to be inconsistent and incoherent when transposed into domestic legislation.
  As regards the role of the drafter in the legislative process, the challenge is overwhelming in that the freedom to choose the form and method may be greatly limited by the detailed nature of the model law. The downside of using harmonised standards in drafting of domestic legislation is the fact that they reduce the choices for domestic lawmakers in developing their own legal solutions, which might be a better fit for the problems they face, or for the institutional capabilities they have.⁴³xPistor, 2000, at 106. It is worth noting that the quality of a piece of legislation is determined not merely by its wording, but rather by an assessment of its likely effects in combination with an economic analysis, in that high-quality legislation is vital in exploiting the opportunities afforded by the international market.
  Section 35 of the Draft Model Law on Civil Aviation Act illustrates how inconsistency can arise between model laws and existing legislation; it provides that:

  The Director may make rules, orders, directives, circulars, notices regarding any matter which the Director may consider necessary in order that the objects of the Act may be achieved.

  Every issue that is likely to impact upon the consistency and practicality of the proposal must be carefully examined.⁴⁴xVanterpool, 2007, at 183. Quality in the substance of the law is therefore contingent on the extent of the analysis pursued by the drafter in addressing all relevant issues before drafting begins.⁴⁵xIbid. The model provision introduces inconsistency with respect to the power to make delegated legislation. It is worth noting that the provision empowers the Director of Civil Aviation Authority to make delegated legislation; this would be ultra vires the existing legal regime, whereby the power to make delegated legislation is often delegated to the minister.
  To illustrate further, Section 49 provides that:

  Any person who contravenes any provision of the Act or its regulations commits an offence, and upon conviction shall be liable to […].

  The provision can be confusing to those who are supposed to implement national legislation. Thus, if provisions that are supposed to attract penalties have penalties stipulated under their respective clauses, it would then not be ideal to have the general penalty clause. Perhaps, it would be better if the provision is drafted by providing that “Any person who contravenes any provision of the Act or regulations to which no penalty is provided, is liable to a penalty of […].” Also, it is worth mentioning that if the provision is transposed in the national legislation where there are drafting techniques that should be adhered to by drafters, it could introduce inconsistency as far as the use of the word ‘conviction’ is concerned. Thus, some drafting conventions discourage drafting penalty clauses in that manner. Hence, if there is an oversight and the penalty clause is introduced in such a manner, it would be inconsistent with the existing legislation.
  It is therefore crucial to ensure consistency in the drafting of national legislation in compliance with model laws. The language and the form of model laws must be consistent with the existing national legislation. Hence, to ensure that the new legislation drafted in compliance with model laws is consistent with existing legislation and fits harmoniously, it is crucial that the language and terminology is consistent. It is therefore crucial to ensure that the process of lawmaking using model laws is compatible with the pre-existing legal system, as their meaning and interpretation depend on pre-existing rules.⁴⁶xPistor, 2000, at 99.

  III. Comprehensibility

  Model law provisions are often convoluted and unclear. The principle of the rule of law requires that rules be drafted clearly enough to be understandable to participants, as a participant cannot be guided by an incomprehensible rule. Rules drafted in a complicated and convoluted fashion, while perhaps ultimately decipherable, require that participants seek expert help in interpreting them, which raises the ultimate cost of regulatory compliance in economic terms.⁴⁷xSalembier, 2002, at 172. If one is adopting legislation, one should enhance its quality and ensure that it is comprehensible.⁴⁸xMuylle, 2003, at 171. It is worth noting that the supply of ready-made standards to domestic lawmakers does not facilitate the lawmaking process; rather, they actually impede the acquisition of knowledge.⁴⁹xPistor, 2000, at 112.
  Rules are not free standing and can be understood only in the context of a given legal order. This is a serious constraint for legal transplantation because ‘the meaning of legal statements is a function of social norms, not of the speaker’s intention’. In other words, however perfectly designed a law that is supplied from the outside may be, its impact is ultimately determined by how it is understood by lawmakers, law enforcers and law users at the receiving end.⁵⁰xIbid. Thus, assuming that a cognitive gap exists between any rule that is supplied and the understanding of that rule by its end users, that gap will impede the effectiveness of the transplanted rule. It is therefore essential to ensure that the supplied rule is made simple, rather than detailed and complex.⁵¹xIbid.
  A different legislative style than that which the reader is familiar with can impede ready access to the text of the legislation and thus its comprehensibility, even where it is translated into domestic language.⁵²xVoermans, 2011, at 40. It may compromise the integrity and coherence of national law.⁵³xIbid. Without ensuring complementarity between the new law and the pre-existing legal institutions, harmonisation may distort rather than improve the domestic legal framework, hence resulting in legislative proposals that are difficult to comprehend. The criterion of understanding in enacted statutes is a quality characteristic of the final process of the legislative process.⁵⁴xP. Ziegler, ‘The Status of Normalised Drafting: The Need for Theory Building and Empirical Verification’, Osgoode Hall Law Journal, Vol. 27, 1989, p. 352. It is worth pointing out that despite the far-reaching implications that result from drafting domestic legislation in compliance with set standards, time plays a crucial role in the drafting of legislation. Hence, lack of time in the drafting of legislative proposals is detrimental to the quality assurance of the legislative proposal. Crabbe argues that legislative drafting is an exacting task that requires hours of intellectual concentration.⁵⁵xV.C.R.A.C. Crabbe, ‘The Ethics of Legislative Drafting’, Commonwealth Law Bulletin, Vol. 36, No. 1, 2010, p. 13. Hence, in view of the fact that drafting of effective and comprehensible legislation requires hours of intellectual concentration, it can be argued that the urgency to comply and draft legislation in haste for purposes of ensuring compliance with the ICAO obligations has far-reaching consequences on the quality assurance of the national legislation. Driedger provides that as time is cut, the quality of the bill deteriorates.⁵⁶xE. Driedger, The Composition of Legislation, The Department of Justice, Ottawa, 1976, p. xix.
  The ultimate user’s demands of legislation are, principally, that it should be intelligible, legally certain, and precise and clear. To draft a text that is legally certain, namely that it is unambiguous and leaves as little room as possible for competing interpretations as to its application and intelligibility or ease of understanding assumes secondary importance. Comprehensibility therefore plays an essential role in the effective implementation of national legislation. Language of model laws is too technical and hence too difficult to comprehend and translate into clear domestic legislation.
  It is therefore essential for those involved in the drafting of new national legislation in compliance with model laws to ensure that it is effective in regard to its comprehensibility in the national context. Thus, however perfectly designed a law that is supplied from outside may be, its impact is ultimately determined by how it is understood by lawmakers, law enforcers and law users at the receiving end.

  IV. Transparency

  Consultation affects the quality of legislation. It is a key precondition for transparency in decision-making and, where undertaken, it should itself be implemented in accordance with the highest transparency standards.⁵⁷xKellermann, 2008, at 204. It is essential for the quality of legislation to uphold consultation with affected parties as a fundamental rule. To ensure the effectiveness of rule-making, a thorough consultation of interests involved must be carried out at an early stage of the decision-making.⁵⁸xTimmermans, 1998, at 45. Decisions that are taken before work starts on drafting of legislative text can have a profound effect on the quality of the resulting legislation. Consultation with affected parties before a legislative proposal is finalised is important, not only to enhance the transparency and openness of the decision-making process, but also for the compliance, applicability and enforceability of the law.⁵⁹xG. Schader, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 103.
  Transparency must be seen as integral to the drafting process and in particular as a prerequisite for maximising information flows from external sources.⁶⁰xS. Arkio, ‘Assessment of Draft Legislation in Finland’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 228. Transparency also requires the routine use of consultation at all major intermediate phases of drafting.⁶¹xIbid. The drafting process must be open, transparent, with full information to all interested parties, and consultation must be as wide as possible.⁶²xH. Xanthaki, ‘Transposition of EC Law for EU Approximation and Accession’, European Journal of Law Reform, Vol. 7, No. 1-2, 2005, p. 106. The legislative process must also be carefully planned and coordinated.
  Quality in the form of the law concerns accessibility, namely transparency in the decision-making process and dissemination of the law.⁶³xH. Xanthaki, ‘The Slim Initiative’, Statute Law Review, Vol. 22, No. 2, 2001, p. 114. Quality legislation must take into account the views of interested parties, all of which must be consulted before the proposed measure is put forward. Transparency means that the decisions of the executive and the legislature should be taken and implemented in line with defined rules and regulations.⁶⁴xK. Kabba, ‘Legislatures in Modern States. The Role of the Legislature in Ensuring Good Governance Is Inadequate: A Case Study of United Kingdom and Sierra-Leone’, European Journal of Law Reform, Vol. 12, No. 3-4, 2010, p. 429. It also means that information must be freely accessible and available to those who will be affected by such decisions and their implementation. Lack of transparency during the conceptualisation of model laws to interested parties is a bottleneck in ensuring that model laws are coherent with the whole body of legislation at the domestic level of member states.
  Consultation is of particular utility in the evaluation of the effects of legislation, determining its real impact and possible side effects.⁶⁵xKellermann, 2008, at 203. Transparency also entails the process of pre-legislative consultation. The involvement of interest groups with knowledge and experience in the relevant field will supply the drafter of the legislation with crucial information that may otherwise not be available. It is worth noting that this is a deficiency when it comes to drafting of legislation in compliance with model laws, drafters are often not involved at an initial stage, and are only confronted during the drafting stage. Often, there is little time to analyse and scrutinise the model law to ensure its compatibility with the existing legal system; this will ultimately impact on the quality assurance of the end product.
  Consultation processes are essential in terms of democratic values.⁶⁶xR. Deighton-Smith, ‘Assessment of Draft Legislation’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. LIII. Consultation should begin early and be open and transparent. Participants must also receive adequate and specific information, which often significantly improves the quality of the responses received.⁶⁷xIbid., at IV. The drafting process must be open and transparent, with full information of legislative dossiers available to all interested parties, and consultation must be as wide as possible.⁶⁸xH. Xanthaki, ‘The Problem of Quality in EU Legislation: What on Earth Is Really Wrong’, Common Market Law Review, Vol. 38, No. 3, 2001, p. 658.
  Involving stakeholders in the research of the legislative proposal fosters an increasingly democratic law-making process.⁶⁹xA. Seidman et al., Legislative Drafting for Democratic Social Change: A Manual for Drafters, Kluwer Law International, 2000, p. 173. A transparent process is important in its own right and greatly benefits the intended primary user of the legislation. Although in a democratic state it is vital to adhere to the principle of transparency for purposes of good governance, this is a challenge as regards the process of legislating for purposes of adherence to international obligations. There is often a dilemma with regard to adherence to the principle of transparency and to the time frame for implementing the legislative proposal for purposes of compliance with the international obligations. Time plays a crucial role in the legislative process. However, there is often insufficient time to hold stakeholders’ meetings or consult with those to be affected by the legislation and lack of information available to those involved in the drafting process. Thornton holds that a thorough and wide-ranging discussion with the instructing officer is a necessary part of the undertaking stage of the process.⁷⁰xThornton, 1996, at 132. Such discussions not only give the drafter an opportunity to clarify the points that are unclear but also provide a check on how successfully the legislative proposals in the instructions have been communicated to the drafter.⁷¹xIbid. Thornton further points out that the importance of consultation during the drafting process is not generally recognised.⁷²xIbid.
  Consultation with those who are to be affected improves the quality and effectiveness of the decision-making.⁷³xEditorial, ‘Pre-Legislative Consultation’, Statute Law Review, Vol. 14, No. 3, 1993, p. xv. It is worth noting that even if there is pre-legislative consultation, it is normally on the policy rather than on the draft legislation and the practicalities of its application and enforcement. Hence, it is worth arguing that lack of consultation with those to be affected by the legislative proposal and the drafter impacts negatively on the effectiveness of the legislative proposal drafted in compliance with model laws. The process of pre-legislative consultation with the experts in the field to be legislated upon and the drafter allows for flow of ideas and the practicability of the legislative proposal. Hence, it is not startling that drafting of national legislation that has to adhere to set standards by international organisations impacts on the effectiveness of the legislative proposal as regards lack of transparency before the legislative process begins. Drafters of the legislation at the national level are not involved in the legislative initiative, and as such, this has far-reaching implications on the quality assurance of the national legislation drafted in accordance with model laws. Even if consultation takes place, the process is curtailed by lack of well-thought-out policy. Pistor argues that the perfect construction of the law by legal experts for wide dissemination can deprive the lawmakers and law enforcers in the receiving countries of knowledge of living law, which is context specific.⁷⁴xPistor, 2000, at 99. Hence, model laws or the supply of ready-made rules sterilises the process of lawmaking.
  Information about the existence of a norm and its contents is a prerequisite for any impact of the law beyond a shelf life. External consultation plays a role in maintaining the technical quality of legislation.⁷⁵xKellermann, 2008, at 204. Pre-legislative consultation with the drafter by those involved in the policy formulation is an essential tool for effective legislation. Crabbe provides that conferences with departmental officials will make it possible to iron out areas of difficulty, as the parliamentary counsel will ensure that matters overlooked are dealt with, so that as the bill is drafted it does not reflect the wishes and aspirations of the sponsors, but will be a workable piece of legislation for the benefit of the whole society.⁷⁶xCrabbe, 2010, at 17. Pre-legislative consultation with the drafter and the affected parties is therefore crucial and will ultimately improve the understanding and the credibility of actions by governments and prevent far too frequent amendments once the legislation is enacted.
  It is essential for those involved in the drafting of domestic legislation in compliance with model laws, and interested parties to be consulted during the legislative process, to be able to test the feasibility of the model law and contribute to a better and more effective implementation of domestic legislation. To ensure the effectiveness of rule-making, a thorough consultation of interests involved must be carried out at an early stage of the decision-making. The effectiveness of rules adopted must also be assessed ex post to allow for abrogation or adoption where necessary.⁷⁷xTimmermans, 1998, at 45. Involvement of the drafter is likely to produce a draft more quickly and more in harmony with the existing legislation. As has been mentioned, it is worth noting that the supply of model laws can deprive the lawmakers in the receiving country of knowledge of living law, which is context specific. The process of consulting the drafter and other interested parties during the drafting process of domestic legislation in compliance with model laws is essential as it renders feedback on the suitability and overall workability of the legislation. Hence, the process of consultation and scrutiny is a definitive contributing factor in the attainment of quality legislation.

  V. Plainness

  The use of plain language means the deferral of language that is complicated, technical or convoluted in favour of plain, clear and ordinary language for its intended audience. Plain language is a tool for clarity, precision and unambiguity.⁷⁸xXanthaki, 2008, at 12. Plain language contributes to clarity and therefore serves effectiveness in drafting.⁷⁹xIbid., at 13. Drafting of legislation in plain language is an essential tool for achieving effectiveness of the legislative instrument. Acts of Parliament should be drafted in simple and accessible language to achieve the effectiveness of the legislation.⁸⁰xMuylle, 2003, at 171. There are challenges in the attainment of simplicity of legislation due to globalisation, as the adoption of foreign words and expressions introduces unnecessary and superfluous words and expressions, which result in an increase in vagueness, ambiguity and verbosity among others.⁸¹xF. Ruhindi, ‘The Need for Simplicity in Legislation and Challenges in Its Attainment’, The Loophole, 2009, p. 4.
  Rules drafted vaguely or ambiguously inevitably lead to disputes in their meaning, requiring the interpretive intervention of the courts, all of which decreases the efficiency of the regulatory system.⁸²xSalembier, 2002, at 173. Often complex, detailed and technical language is used in legislative drafting, and such language is increasingly recognised as obstructing plainness and adding to the expense of implementation.⁸³xVoermans, 2011, at 46. It is worth noting that the language used in model laws is often too technical and complex. This is a great challenge that confronts those involved in the drafting of domestic legislation. The drafter has to strive for plainness when drafting legislation, and avoid possibilities of introducing ambiguity when reducing the technical language of the model law. Plain language used appropriately is a very effective tool.⁸⁴xB. Hunt, ‘Plain Language in Legislative Drafting: An Achievable Objective or Laudable Ideal’, Statute Law Review, Vol. 24, No. 2, 2003, p. 112. The language of the legislative text and its intelligibility for the readers and users is one of the principal features by which quality legislation is judged.⁸⁵xVanterpool, 2007, at 191.
  The use of model laws is to ensure uniformity in the application, interpretation and implementation of legislation. It is, however, worth noting that model laws as artificial products have not been tested in any legal system. Therefore, judges and other law enforcers in different jurisdictions lack a common point of reference to interpret those concepts, and this increases uncertainty for the end users of the law. However, where the model law is based on an existing national model, the national legal system may be used as a reference point for further clarifications.⁸⁶xPistor, 2000, at 110. However, there are challenges for those involved in the drafting of domestic legislation which has to adhere to model laws. Use of plain language in drafting domestic legislation in compliance with the model laws is likely to increase the incidence of vagueness and ambiguity, a consequence that drafters cannot allow to occur.⁸⁷xHunt, 2003, at 116. Legislation drafted in wide and general terms is likely to give rise to different interpretation and inevitable challenge.⁸⁸xIbid. At the other extreme, the more one tries to be exhaustive, the more vulnerable the legislation will be to omissions and potential challenges.⁸⁹xIbid. So achieving a healthy balance between the two extremes presents a great challenge to any legislative drafter.
  Clear and simple legislation helps businesses and citizens to comply with the law without imposing excessive burdens and facilitates the task of authorities who have to enforce it.⁹⁰xXanthaki, 2001, at 655. It is worth noting that the challenge of drafting using model laws is a setback, especially if the subject matter is technical and complex like aviation. The choice of words is dependent on the subject area. Thus, if model laws are couched in convoluted language, it is inevitable for domestic legislation to be in clear and simple language. Hence, it is crucial for those involved in the conceptualisation and creation of model laws to commit as much energy to the pedestrian exercise of domestic incorporation as they do to the more alluring task of drafting new international models.⁹¹xK. Anderson, ‘Testing the Model Soft Law Approach to International Harmonisation: A Case Study Examining UNCITRAL Model Law on Cross-Border Insolvency’, Australian Year Book of International Law, Vol. 23, No.1, 2004, p. 23. Hence, efforts towards simple legislation lead to better results, namely efficiency.
  The language of the legislation and on ‘getting it right’ will assist in improving the overall quality of the statute book.⁹²xR. Bigwood, The Statute: Making and Meaning, LexisNexis, Wellington, 2004, p. 90. Language that is clear entails the use of words and sentence structures that are simple, concise, containing no unnecessary elements, and unambiguity.⁹³xVanterpool, 2007, at 188.
  Plain language will help to expose errors, inconsistencies and ambiguities inherent in model laws, as errors are harder to find in dense, convoluted prose.⁹⁴xP. Butt, ‘Modern Legal Drafting’, Statute Law Review, Vol. 23, No. 1, 2002, p. 22. Errors are more easily discerned when sentences are shorter and texts broken down into more easily comprehensible units.⁹⁵xIbid. To illustrate, Section 31(3) of the Draft Model Law on Civil Aviation Act illustrates lack of simplicity; it provides that:

  An investigation of an accident or incident involving:

  1. civil aircraft occurring within Military sites in the territory of the state of the Authority shall be joint responsibility of:

     1. the Minister and the Military with respect to the power to investigate or arrange by contact or otherwise for the investigation of, accidents or incidents involving civil aircraft registered by the Authority, and for the purpose of determining the facts, conditions and circumstances relating to the accident or incident and the probable cause thereof;

     2. the Authority with respect to taking any corrective action intended to prevent similar accidents or incidents in the future based on the findings of the accident or incident investigations authorised under this section;

  2. civil aircraft involved in an accident or incident with a military aircraft in the territory of the state of the Authority or within the military site shall be the joint responsibility of the Authority and the military with respect to taking any corrective action intended to prevent similar accidents or incidents in the future based […].

  3. an aircraft of the armed forces of any foreign state occurring in the territory of the state of the Authority shall be the responsibility of the Military.

  Such a complicated long clause may not only be difficult to understand, but also quite complex to translate. An overzealous attempt at precision may result in redundancy and verbosity.⁹⁶xHunt, 2003, at 117. The sole aim of plain language drafting is to render the text more comprehensible without changing its meaning; that aim is not always realisable as the conversion of model texts into plain language often has the unintended effect of changing the meaning of legislation.⁹⁷xB. Hunt, ‘Plain Language in Legislative Drafting: Is It Really the Answer?’, Statute Law Review, Vol. 23, No. 1, 2002, p. 34. Redrafting the model provision by compressing what might be complex concepts into a shorter provision may lead to uncertainty and difficulties of interpretation.
  It is therefore essential to ensure that model laws are drafted in clear language to ensure ease of transposition into the domestic legal system. Plain language is also effective in exposing poor or inadequately considered policy. Thus, if the subject matter is technical, there is no escape from using technical or complex language in drafting of domestic legislation.

  VI. Accessibility

  Access to legislation is a key element of the rule of law. Drafting of legislation in compliance with model laws is a bottleneck in achieving the effectiveness of domestic legislation as regards accessibility of legislation. The accessibility of legislation is a two-fold concept; one aspect is the transparency of the decision-making procedure leading to the adoption of a new piece of legislation, and the other is how to improve the dissemination of existing legislation and its accessibility.⁹⁸xPiris, 1998, at 31. Provides that community legislation is the fruit of, at times, carefully crafted compromises between the various national positions, generally in technical fields. It does not differ greatly from national legislation, which likewise grows from compromises struck firstly between the ministries involved and then within government and parliament and sometimes even regional bodies. Accessibility of legislation amounts to more than just the readability and comprehensibility of the legislative text.⁹⁹xVoermans, 2011, at 49. The overall accessibility of legislation is also determined by the way it is formally and informally communicated. It is worth noting that in the context of the legislative process, accessibility goes beyond the issue of ability to obtain the law, but whether the intended users of the legislation will be able to understand it once it is implemented.¹⁰⁰xD. Greenberg, ‘Access to Legislation-Legislative Counsel’s Role’, The Loophole, 2009, p. 5. Muylle provides that Acts of Parliament are difficult to apply, worded in obscure terms, too technical and complex and hence incomprehensible and inaccessible to citizens.¹⁰¹xMuylle, 2003, at 171.
  Drafters play a vital role in ensuring access to legislation to the end users and those intended to implement it. However, it is worth noting that the task of ensuring accessibility to citizens of legislation drafted in compliance with model laws is a challenge. The readability and comprehensibility of aviation legislation drafted by international experts is too technical for a layperson to comprehend. In striving for effective legislation as regards accessibility, the drafter has to strike a balance between drafting legislation in clear and simple terms and ensuring that there is no room for misinterpretation when reducing the complexity of the model law. Harmonisation of standards leaves ample room for ambiguity when translating them into specific domestic rules. As such, in the quest to ensure that the law is accessible and drafted in a way that will be easily understood, there is a potential danger of even introducing more complexity by introducing new legal concepts. Drafters therefore have a role in ensuring that the intended legislative proposal fits harmoniously well into the existing legal system, as regards consistency in the use of terminology to ensure that there is no room for ambiguity or misinterpretation.
  It is worth noting that in striving to ensure accessibility of legislation to citizens, a lot of time and resources is spent on untangling the complex language in model law to ensure that it harmoniously fits in the existing legal system. This is a setback in that despite all the efforts and expertise, the domestic legislation will still suffer some flaws due to lack of knowledge in the area and the pressure to respond to the international calls. It is worth noting that lack of accessibility of the model laws to those involved in the drafting process of domestic legislation is a major setback. Thus, it is crucial for the drafters to be involved at an earlier stage and advise on the feasibility of model laws at the national level. Hence, involving them only during the drafting stage when the model laws have been approved invites resistance when it comes to recasting and making changes to the provisions in the model laws.
  It is therefore crucial for those involved in the drafting of national legislation to have access to draft model laws prior to drafting of domestic legislation. Transparency and accessibility in the procedure and the publication of drafts are criteria that have to be shaped according to the concrete institutional context. Access to draft model laws will enhance the quality of drafting domestic legislation, it will offer those involved in the transposition of draft model laws and law enforcers an opportunity to evaluate the effectiveness of the model law at the national level.

  VII. Clarity

  Clarity is an important aspect in legislative drafting. It helps to eliminate ambiguity and vagueness.¹⁰²xCrabbe, 2010, at 19. Clarity, or clearness, is defined as the state or quality of being clear and easily perceived or understood.¹⁰³xXanthaki, 2008, at 9. It depends on the proper selection of words, on their arrangement and on the construction of words. Clarity in the language of the law enhances understanding and transparency of legislation.¹⁰⁴xIbid. Without clarity, the law lacks predictability. According to Xanthaki, democratic states seeking to induce transformation require that the law be understood and followed by common people. Thus, clear law will cut high costs to inaccessible law related to enforcement, application and interpretation of texts whose meaning is under doubt.¹⁰⁵xXanthaki, 2008, at 11. The rule of law demands that, as much as possible, people should know in advance what the law demands of them, and more specifically, markets impose a similar imperative, for without predictability entrepreneurs are less likely to invest.¹⁰⁶xSeidman et al., 2000, at 255. This is more apparent in the context of our case study relating to the drafting of aviation legislation, which is meant not only for combating terrorism, but also for fostering a secure international and regional business. Hence, it is crucial that the legislation is clear and precise for purposes of ensuring ease of understanding by the users. Clarity includes the use of plain language and the avoidance of too many cross-references and of political statements without legislative character.¹⁰⁷xXanthaki, 2001, at 659. Martineau argues that forms often use arcane language, compound expressions and redundant legal phrases. It is worth noting that model laws are often convoluted with long sentences and statements that lack legislative character. Use of vague and not well-defined notions will jeopardise the drafting process and even complicate enforcement of legislation.
  Unclear drafting refers to the nature of decision-making. Model laws are often a product of intergovernmental negotiation, and to obtain compromises, artful wording is used to conceal diverging positions.¹⁰⁸xTimmermans, 1998, at 41. Hence, transposition of such convoluted language into domestic legislation will present great challenges to the readability of legislation. The intelligibility of accurately articulated legislation is therefore an essential quality criterion. A law created wholly of words and technical phrases will probably be precise, but not clear enough to be understood by the non-expert.¹⁰⁹xF. Capelli, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 130. Thornton provides that clarity, in the legislative context, requires simplicity and precision and that the solution to clear and precise legislation lies in the compromise between the precision of the technical language and the ready comprehensibility of the ordinary use of words. The tension between complexity of material and simplicity of expression must be recognised and a reasonable balance achieved. It is therefore crucial to ensure that the language and terminology used in the domestic legislation drafted in compliance with model laws entails the use of sentence structures that are simple, concise and unambiguous.

• C. Analysis of Impact of Model Laws on the Legislative Drafting Process

  Quality control systems alone will do little to improve the quality of legislation. It is the quality of those involved in the legislative process that plays a vital role.¹¹⁰xKellermann, 1999, at 29. The internal procedures within member states play a key role in the quality control of domestic legislation. In pursuit of quality in legislation, it must be emphasised that there are many players who must contribute to this achievement throughout the legislative process.¹¹¹xVanterpool, 2007, at 173. There is no doubt that the drafter and the parliamentarians play the most significant role in the testing and scrutiny of the feasibility of model laws in the national context and they are a key component in the quality control process. It is noteworthy that drafting of legislation in compliance with draft model laws impacts on the role of the drafter and of parliament, to draft and pass laws that meet the quality criteria analysed in Section B. This part seeks to analyse the impact of draft model laws on the legislative process, which ultimately impact on the quality assurance of the legislative proposal in the national context.

  I. The Role of a Drafter

  The responsibility of ensuring high quality of legislation lies in the hands of the drafters themselves.¹¹²xLevert, 2011, at 36. They are the guardians of the statute book.¹¹³xIbid. They are experts. They have (or should have) the last word, when it comes to drafting techniques, terminology, structure of a bill, etc. Effectiveness can be viewed as the drafter’s contribution to the efficacy of the drafted legislation.¹¹⁴xXanthaki, 2008, at 5. The common concept of quality in legislation, with effectiveness as its flagship, is promoted by drafters around the world.¹¹⁵xIbid., at 17. Drafters play a vital role in the drafting of legally effective and clearly expressed legislation that best meets the instructor’s policy.¹¹⁶xS. Argument, ‘Legislative Counsel and Pre-legislative Scrutiny’, The Loophole, January 2010, p. 62.
  A central skill for a drafter is to be able to draft in a way that is harmonious with the rest of the statute book and therefore minimises the risk of a successful challenge of legislation based on unintentional variations in word choice or structure.¹¹⁷xS.C. Markman, ‘Training of Legislative Counsel: Learning to Draft without Nellie’, Commonwealth Law Bulletin, Vol. 36, No. 1, 2010, p. 31. There is need for more and more original legislative drafting.¹¹⁸xCrabbe, 2010, at 22. Drafter’s must be technically, professionally and maturely equipped to respond to the new challenges that confront their respective countries. Crabbe provides that there are no model problems and that there can never be model solutions; he further provides that:

  A competent parliamentary counsel does not need a model law. The need is to draft the Bill to solve the problem at hand which may be cultural, economic, political, social or otherwise, not reliance on models which turn out on proper examination, to be intended for other situations not germane to those at hand.¹¹⁹xIbid.

  Quality of legislation depends in large measure on the contribution of the drafter and the processes followed to develop, consult, enact and review the proposal.¹²⁰xDriedger, 1976, at xxiv. It is worth noting that as much as the drafter’s contribution improves the quality assurance of legislation, it is without doubt that the process of drafting effective national legislation can be thwarted by the use of draft model laws. Thus, model laws may have far-reaching consequences on the effectiveness of the end product. This holds true in that drafting of legislation using draft bills drafted elsewhere and under stringent conditions has far-reaching implications for the quality of the assurance of the end product.
  The identification of effectiveness as a common value of drafters leads to the acknowledgement of a common concept of in the definition of quality in legislation, not only in the EU, but in the Commonwealth and beyond.¹²¹xXanthaki, 2008, at 17. It is imperative to analyse the role of the drafter in the drafting process and give an overview of how compliance with set model laws may conflict with the role of the drafter. Markman argues that legislative drafters do not have the primary responsibility for the efficiency and effectiveness of the legislative instrument they are asked to draft and they should be conscious of the workability of what they create. The drafter’s role is not merely to translate drafting instructions into legislative language, but also to produce a legislative instrument that is fit for purpose.¹²²xS. Markman, ‘It’s Just Your Imagination, Some Thoughts on the Role of Parliamentary Counsel in Ensuring Practicability of Legislative Instruments’, The Loophole, 2011, p. 1. Bowman provides that the drafter’s main and most valuable function is to subject policy ideas to a rigorous intellectual analysis.¹²³xG. Bowman, ‘Why Is There a Parliamentary Counsel Office’, Statute Law Review, Vol. 26, No. 2, 2005-2006, p. 70. Hence, it can be argued that in the context of using draft model laws, the drafter’s ability to rigorously analyse the proposal will be hindered by instructions presented in the form of draft model laws. Thus, in terms of drafting legislation, it is crucial for the drafter to understand and analyse the legislative proposal and determine whether it will be an effective legislative proposal fit for the purpose. It can therefore be argued that the compliance with model laws is a setback in the drafting of effective national legislation, in that any enactment should be analysed for its compatibility with existing laws.¹²⁴xD. Miers & A.C. Page, Legislation, Sweet & Maxwell, London, 1982, p. 79. Crabbe provides that legislative drafting does not consist in copying precedents or in polishing what others have drafted.¹²⁵xV.C.R.A.C. Crabbe, Legislative Drafting, Cavendish, London, 1993, p. 14. The Report on the use of uniform or model laws as technical assistance provides that use of technical assistance in the form of model laws should be on quality of legislation rather than on worldwide or regional uniformity.¹²⁶x‘Uniform Law as a Means of Technical Assistance’, 1973, at 71.
  It is worth noting that compliance with international organisations by member states in ensuring that national laws are in conformity with the prescribed model laws is normally done under hasty circumstances. Thus, states are normally put under immense pressure to ensure compliance by drafting and implementing the laws in conformity with the set model laws. It is on the basis of these circumstances that this article seeks to analyse and critique how the drafting of legislation under such circumstances impacts on the role of the drafter in the quest for drafting high-quality legislation and the role of the legislature in the effective scrutiny of legislation and passing of effective and enforceable legislation.
  It is beyond doubt that the quality of the drafting of the legislative proposal rests on the competence of the drafter. There are dilemmas that confront drafters in the drafting of national legislation in compliance with model laws, such as standardised drafting or use of drafting techniques. These drafting techniques are a means of improving the quality of domestic legislation. Drafting techniques include use guidelines, manuals and checklists as means of improving the quality of legislation. They are essential for purposes of clarity, uniformity and transparency of the law and consequently for legal certainty, which is one of the main elements of the rule of law.¹²⁷xJ.H. van Kreveld, ‘The Main Elements of a General Policy on Legislative Quality: Dutch Experience’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 97. Drafters are often obliged to adhere to set drafting traditions, which have been fine-tuned many a time by their legislatures, and it can be argued that they instil the hands-on knowledge and long-standing traditions of their mature legislatures.¹²⁸xXanthaki, 2001, at 667. They serve as tools for both the drafter and the end user of the statute book as regards consistency in the form and representation of legislation. Hence, the issue that could baffle the drafter when drafting national legislation is to strike a balance in use of the drafting techniques and drafting in compliance with model laws.
  The use of model laws or supply of ready-made rules may impact on quality criteria such as consistency, drafting style and terminology. Hence, to provide high-quality services, any organisation needs effective processes.¹²⁹xS. Lortie, ‘Providing Technical Assistance on Law Drafting’, Statute Law Review, Vol. 31, No. 1, 2010, p. 6. Ensuring such high quality of domestic legislation would require that a lot of time be spent on ensuring that the foreign concepts in model laws fit harmoniously into the existing domestic legal system and conform to the internal set standards of quality control mechanisms. However, it may be argued that the translation of the model law into the language of the domestic legal system could give room for introducing some inconsistency in interpretation of the new legal concept. Hence, Lortie argues that uniform provisions are essential to save time in drafting and to improve the quality through consistency and clarity.¹³⁰xIbid.
  The drafter plays a crucial role in the preparation of a legislative draft that will be tested and scrutinised for its quality and that must be so drafted as to be simple, clear and accessible to its audience.¹³¹xVanterpool, 2007, at 173.

  1. Draft Model Law Instructions

  As a general rule, drafters should work on the basis of drafting instructions and not on the basis of a document that is already in the form of a bill.¹³²xLevert, 2011, at 34. Thus, when working from the instructions that are prepared in the form of a bill, a drafter wastes precious time deconstructing the draft in order to properly understand its underlying policy and to make sure the policy is complete and workable, and then reconstructs the bill according to accepted drafting standards.¹³³xIbid. A drafter who makes use of a form, which includes use of draft model laws, must first overcome the ‘psychological barrier to critical judgement’.¹³⁴xR.J. Martineau & M.B. Salerno, Legal, Legislative and Rule Drafting in Plain English, Thomson West, St. Paul, 2005, p. 28. Thus, the drafter should be aware of this barrier not only when reviewing the form to be used in drafting but also in reviewing another lawyer’s draft that appears to be on a pre-printed form. Forms can be helpful tools, but present basic problems.¹³⁵xIbid.
  Draft bill instructions confuse the role of the instructor, and the drafter is almost certain to raise difficulties to construction and mislead.¹³⁶xThornton, 1996, at 130. They slow down the process because the drafter has to penetrate behind the words of the draft to acquire the relevant facts and divine the intent.¹³⁷xIbid. Draft bill instructions do not tell the drafter what the problem is, and how it is to be remedied, but rather how the author thinks an unstated problem can be remedied. Drafting of a bill needs to be approached as a unique exercise and a drafter’s job is to carry out a ruthless analysis.¹³⁸xG. Bowman, ‘The Art of Legislative Drafting’, European Journal of Law Reform, Vol. 7, No. 1-2, 2005, p. 4. It is worth noting that before the drafter can begin the drafting of legislation, they must receive reasonably complete legislative proposals from the sponsors. Drafting instructions that come in the form of draft bills have far-reaching consequences on the role of the drafter and the quality assurance of the legislation. Thus, the supply of ready-made standards to domestic lawmakers does not facilitate the legislative process; rather they impede the acquisition of knowledge.¹³⁹xPistor, 2000, at 102. The drafter who is presented with a draft measure would not be discharging their duties, even if they assumed that a proper legislative plan had been conceived and that proper provisions had been chosen to carry it out.¹⁴⁰xDriedger, 1976, at xix. The drafter cannot confine themselves merely to a superficial examination of the outward form of the measure, and drafting does not consist in polishing what others have written.¹⁴¹xIbid. Thus, law does not operate in a vacuum; hence, use of draft model law instructions should take cognisance of the cultural, economic and political conditions in which it is intended to operate.¹⁴²xCrabbe, 1993, at 12. Thus, the drafter’s job involves much more than simply putting other people’s ideas and words into the form of legislative instruments.¹⁴³xMarkman, 2010, at 28.
  Instructions that come in the form of model laws, without adequate information on the problem to be solved, impede the drafting of quality legislation, as the drafter will spend more time trying to understand the foreign concept and how it can be fitted in the existing legal system.
  Model laws are often drafted by international experts who may not be familiar with the legal system of the receiving states. This imposes a tasking exercise on those drafting domestic legislation to ensure that the model law is harmoniously fitted into the existing domestic law. Robinson argues that drafting does not consist in polishing what others have written, that even assuming that a perfect bill is submitted, the drafter must still subject it to the complete drafting process.¹⁴⁴xW. Robinson, ‘Polishing What Others Have Written: The Role of the European Commission’s Legal Revisers in Drafting European Community Legislation’, The Loophole, 2007, p. 1.
  From the foregoing, it is explicit that the use of model laws in legislative drafting imposes a number of challenges as regards ensuring their practical enforceability in the law-receiving country. The structure of the draft is likely to be confused, and the language is likely to be inconsistent.¹⁴⁵xThornton, 1996, at 130. Standardisation reduces the choices of lawmakers in developing their own legal solutions and leaves ample room for ambiguity when translating them into specific domestic rules. The process of lawmaking and the compatibility of new rules with pre-existing ones as well as with the economic and political conditions is more important than the contents of the supplied rules. Without ensuring complementarity between the new law and the pre-existing legal institutions, harmonisation may distort rather than improve the domestic legal framework, as the language of the draft model is likely to be inconsistent with the existing domestic legal framework.
  It is therefore essential for comprehensible drafting instructions, which will ultimately assist in the production of quality legislation that is clear, simple and intelligible.¹⁴⁶xVanterpool, 2007, at 175.

  2. Urgency to Comply with International Obligations

  One of the most important factors in good lawmaking is time.¹⁴⁷xLortie, 2010, p. 5. Adequate opportunity must be given to all those involved in preparing legislation to properly complete a full range of the tasks required to produce a bill. Thus, it is essential that legislation be designed and written according to a precisely delineated and rigorously implemented procedure.¹⁴⁸xIbid. Time is an essential tool in the preparation of legislation, and it is therefore crucial for those involved in the drafting of legislation to have ample opportunity to rigorously analyse the practicability of model laws at the national level.
  The structuring of a legislative instrument that is legally effective and certain is an essential aspect of quality of legislation.¹⁴⁹xVanterpool, 2007, at 186. This aspect is deemed crucial for the proper implementation of the legal rules by the authorities and also for the better understanding by the public of such rules.¹⁵⁰xIbid. However, the drafter’s quest for structuring legally effective legislative instruments is inevitable when it comes to the drafting of domestic legislation within set time frames. Time is the enemy¹⁵¹xZ. Ntaba, ‘Pre-legislative Scrutiny’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008. “The work is urgent. It has to be done by at any cost during the limited time available. When a draft is cumbersome with hundreds of provisions requiring careful, patient and detailed scrutiny, time is the enemy. All this involves time and concentration. There is often a constant battle between urgency and limited time.” when it comes to the drafting of legislation that has to conform to international obligations. The pressure to get a bill introduced and enacted is often intense. Inevitably, the quality of the measure can be affected. There is no time to do a ‘perfect job’. Thus, in the rush to pass and implement legislation, the quality of the legislation is compromised.
  Drafting of legislation requires hours of concentrated intellectual labour. It is worth noting that drafting of national legislation for purposes of compliance with international obligations is often done under unrealistic circumstances, and this may impact on the quality assurance of the legislative proposal. Member states often have an obligation to enact and implement domestic legislation within a given time frame. There is no doubt that such hasty decisions impact on the quality assurance of model laws and inevitably on the drafting of high-quality domestic legislation. As time is cut, the quality of the legislative proposal deteriorates.¹⁵²xIbid. Muylle provides that Acts of Parliament should be clear and comprehensible, that modern legislation does not meet these objectives as they are drafted in haste and as such, impact on their editorial quality.¹⁵³xMuylle, 2003, at 171. The Renton Report also provides that the pressure under which legislative counsel work may affect the quality of their output. It notes that by the time instructions are received there is no room for the drafter to take decisions that will make for simplicity and clarity, as the pressure to get things done is usually great.¹⁵⁴xRenton Committee Report, The Preparation of Legislation, HL, 1975, p. 43.
  Late decision-making often causes problems with implementation, partly because the national administration becomes saddled with an implementation term that is too short and partly because the legal subjects have too little time to respond to the new situation. Noting the fact that model laws are often complex as to their language, it is crucial for the drafter to critically analyse and understand them for translation into clear and simple language. The urgent need of governments to have the legislation drafted and implemented within the set time frame has a negative impact on the drafting process. Thus, the drafter’s aspirations to draft legally effective legislation will be thwarted by the government’s aspirations to have the legislation drafted under unrealistic conditions. Hence, this creates a dilemma for the drafter in striking a balance between quality assurance of the legislative product and the need to adhere to the sponsoring ministry’s aspirations. The drafter has a prime interest in maintaining the quality of the end product¹⁵⁵xC. Wilson, ‘Managing Increasing Government’s Expectations with Respect to Legislation While Maintaining Quality’, The Loophole, 2009, p. 22. as custodian of the statute book.¹⁵⁶xS. Laws, ‘Role of Legislative Counsel, Wordsmith or Counsel’, The Loophole, 2008, p. 43. The drafter has to ensure that the bill is drafted in clear unambiguous language and that it integrates with existing legislation. Drafting of national legislation for purposes of compliance with international obligations and fulfilling the aspirations of the government has far-reaching consequences on the effectiveness of the legislation as it results in legislation that is not legally effective.¹⁵⁷xMiers & Page, 1982, at 82.
  It is worth noting that the use of model laws is useful in the later stages of the drafting process. They are often used when time is of essence, but they deprive the drafting team of the wealth of innovative solutions.
  Finally, lack of time hampers the drafting process as there is little time to gain an understanding of the practicability of model laws on the receiving states. Thornton provides that drafting of legislation must be subjected to the five stages of drafting. Without doubt, the pressure to comply with regional or international obligations would hinder the drafter from complying with the five stages of drafting. Thus, there is little time to understand and analyse the practicality of the legislative proposal and to assess whether the legislation is capable of enforcement. There is no time to design and compose an effective legislative proposal, as the process requires a considerable degree of mental discipline, which is often lacking as instructions come in ‘laydrafts’ that often lack an in-depth comprehensive analysis of their feasibility in the receiving countries. There is lack of time to subject model laws to a rigorous intellectual analysis. Late decision-making also causes problems with implementation, partly because the national administration becomes saddled with an implementing term that is too short and partly because the legal subjects have too little time to respond to the new situation.¹⁵⁸xW.R.J. Van Den Henden, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 69.

  II. Role of Parliament in the Legislative Process

  Lack of pre-legislative scrutiny by legislative counsel will result in parliament being presented with ‘half-baked’ bills.¹⁵⁹xA. Kennon, ‘Pre-legislative Scrutiny’ (Analysis), Public Law, 2004, p. 477. The contribution of scrutiny to quality legislation is undeniable. Scrutiny of bills by parliament is an essential quality control measure for effective legislation. The quality or effectiveness of legislation can be measured by the effectiveness of the parliamentary procedures. To prevent legislative defects, therefore, the intervention of national representatives is essential. Karpen argues that the political pressures push for drafts through the parliamentary machinery, lacking time to deliberate and work on the details, legal terms, transparency, etc.; as a result, many laws are inaccessible to citizens and even experts.¹⁶⁰xU. Karpen, ‘Improving Democratic Development by Better Regulation’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008, p. 157. Drafting of legislation to meet the aspirations of government has far-reaching consequences on the scrutiny of legislation by parliament. Parliament requires time to thoroughly scrutinise the bills, but often lacks the time.¹⁶¹xMuylle, 2003, at 171. Demands for immediate legislative action deprive parliament of its valuable role of critically analysing legislative proposals brought before it. Muylle argues that one way of improving the effectiveness of the legislative process is to ensure that bills examined by parliament are well written. Language of domestic legislation drafted in compliance with model laws will hamper the role of parliament in enhancing quality legislation; thus, in adopting legislation, they should enhance its quality.¹⁶²xIbid.
  It is crucial for the elected representatives of states to be able to discuss, in the open and upstream in the process, national legislation. They must be in a position to draw attention to the foreseeable difficulties in enforcement and practicability of the legislative proposal. Thus, parliamentarians are in a position to convey a message that is elaborate, well-balanced, comprehensive and relevant to the interests of the nation and context specific. This will offer them an opportunity to evaluate the effectiveness of domestic legislation drafted in accordance with model laws and ensure that it is context specific and harmoniously fits into the domestic legal system. An effective parliament is therefore crucial in voicing the concerns of the electorate by ensuring that the executive can justify each measure that it proposes to legislate upon.¹⁶³xD.K. Kawooya, ‘Act of Parliament: The Role of Parliament in the Legislative Process’, European Journal of Law Reform, Vol. 12, No. 1-2, 2010, p. 45. It is beyond doubt that their role can be curtailed by over-elaborate, vague and technical legislation and lack of time to vigorously scrutinise the legislative instruments drafted in compliance with model laws. Excessive legislative output is also a bottleneck in quality assurance of legislation by parliament. This will ultimately impact on the parliamentarians’ role of a quality control check of bills. Though, it can be argued that parliamentarians lack the expertise, it is then crucial to ensure that they are presented with well-drafted legislative proposals, in order for them to enhance its quality.¹⁶⁴xMuylle, 2003, at 173. Thus, parliamentarians can influence the lawmaking process and improve the overall quality of legislation. The enactment of quality legislation must be construed by Parliament as a democratic responsibility, and by the people as a democratic right.¹⁶⁵xVanterpool, 2007, at 202.
  Hence, it is crucial for parliamentarians to fully scrutinise a given legislative proposal with a view to securing the greatest quality in the legislation drafted in accordance with model laws.

• D. Conclusion/Recommendations

  The objective of this article was to assess the impact of model laws on the quality assurance of domestic legislation. While good arguments can be found to justify the standardisation of laws, the likelihood of their having any beneficial impact hinges on several factors. The standards need to be fitted into the domestic legal system. However, they are not freestanding, and their meaning and interpretation depend on pre-existing rules.
  Model laws have a quasi-legislative character, and their status is virtually unknown, inaccessible or not readily accessible. Model legislative texts should, in accordance with fundamental quality requirements, be clear, consistent, comprehensible, accessible, accurate, effective and enforceable.¹⁶⁶xKellermann, 1999, at 11.
  A statute is the ultimate instrument of state intervention.¹⁶⁷xR.C. Bergeron, ‘Globalisation of Dialogue on the Legislative Process’, Statute Law Review, Vol. 23, No. 2, 2002, p. 89. Any change to the legislative process has a direct impact on the innermost workings of the state, and hence, this makes international cooperation in the area of legislative drafting all the more challenging.¹⁶⁸xIbid. The problem with uniformity is that even the most perfect human drafting process cannot make objectively ‘right’ decisions.¹⁶⁹xL. Ribstein & B. Kobayashi, ‘Uniform Laws, Model Laws & Limited Liability Companies’, University of Colorado Law Review, Vol. 66, 1995, p. 951. To achieve uniformity of law, some states adopt the model law as close to verbatim as possible, which has potential effects. Verbatim adoption increases the proposals’ potential effect on state enactments because legislatures may adopt some provisions of uniform proposals simply to maintain uniformity rather than because of the preferences of local legislators and interest groups.¹⁷⁰xIbid. Model laws prevent potential ‘herding’ by state legislators, where they ignore their private information and blindly follow leader states.¹⁷¹xIbid., at 960. This has a negative impact on the effectiveness of domestic legislation, as member states will blindly adopt model laws in their domestic legal framework, without taking into account the enforceability or workability of the model law in the domestic legal system. This ultimately results in hasty adoption of model laws into domestic laws which do not meet the fundamental quality criteria analysed in Section B.
  The key perspective is that legislation is a basic tool of government and that carefully and expertly crafted legislation is fundamental to a properly functioning democracy.¹⁷²xArkio, 1998, at 227. Model laws are a setback in achieving effectively crafted legislation. Uniformity may impose a ‘dull blanket’ and stifle experimentation.¹⁷³xJ. Goldring, ‘Globalisation, National Sovereignty and the Harmonisation of Laws’, Uniform Law Review, Vol. 3, No. 2-3, 1998, p. 1. Thus, the supplies of ready-made standards impede the acquisition of knowledge and sterilise the process of lawmaking.¹⁷⁴xPistor, 2000, at 102. Seeking to harmonise the laws of multiple political states in any one particular area of international business transactions is a daunting enough task, given the wide range of legal approaches that the states may have taken in any area.¹⁷⁵xA.B. Overby, ‘UNCITRAL Model Law on Electronic Commerce’, Tulane Journal of International and Comparative Law, Vol. 7, 1999, p. 220. For legislatures and drafters, the point that needs to be reiterated is that ineloquently incorporating even relatively minor divergences from the model law will preclude realisation of the benefits of harmonisation.¹⁷⁶xAnderson, 2004, at 23. It is important that adoption is not undertaken simply by jumping on the international bandwagon without considering past domestic experiences; thus, endorsing a model law with only a single or no changes does little to promote their own interests.¹⁷⁷xIbid., at 23. In an effort to improve the quality of legislation, it is crucial that adoption of model laws is based on experience and on correcting the errors revealed by practice. It is vital for states to benchmark from others the implications of adopting model laws and take cognisance of the quality criteria of such laws at the national level.
  The criterion variable is a quality characteristic of the final product of the legislative product. As international law brings states closer in terms of globalisation, it is crucial for the states and those involved in the legislative process to ensure the quest for quality assurance of their domestic legislation, rather than compromise on the quality of domestic legislation for purposes of enhancing international trade and recognition. Model law provisions should be clear, consistent, comprehensible, accessible, transparent, effective and enforceable, for ease of transposition into domestic legislation of receiving states. In practice, the achievement of these quality criteria at the national level is unattainable, as the freedom to choose the form and method may be greatly limited by the detailed nature of the model law.¹⁷⁸xKellermann, 1999, at 12. It is commonly known that in legal matters ‘the devil lies in the details’, these details are not included in the standards; the laws to be enacted by different countries, however, will need to be much more specific. The perfect construction of law by legal experts for wide dissemination can deprive lawmakers and the law enforcers in the receiving countries of knowledge of living law, which is context specific.¹⁷⁹xPistor, 2000, at 99. Thus, use of model laws may deprive the drafting team of the wealth of innovative solutions that can be identified through the analysis of legal systems further afield.
  The quality criteria analysed in Section B of the article are essential tools for the effectiveness of any legislative proposal. It is crucial for member states to analyse these elements as quality control mechanisms, before embarking on any legislative project. A failure to take cognisance of such tools and procedures may result in defective and ill-considered decisions, which will ultimately impact on the overall quality assurance of the statute book. It is worth noting that this is not a matter of careful drafting, but of assessing the possible effects of the model laws and the adequacy or receptivity of existing structures to have the rules properly implemented, applied and enforced. Investigation into the implications and application of an enactment, whether prospective or retrospective can be a factor in improving the effectiveness and efficiency of our law production.¹⁸⁰xH. Schaffer, ‘Evaluation and Assessment of Legal Effects Procedure Towards a More Rational and Responsible Law Making Process’, Statute Law Review, Vol. 22, No. 2, 2001, p. 152. It will help to realise political decisions and to balance costs and benefits of legal solutions. Evaluation of legislation cannot bring about the ‘perfect law’, but it can improve the quality of legislation, which is something that is lacking in regard to the drafting of domestic legislation in compliance with model laws.
  From the analysis of transposition of model laws into the domestic legal system, it is clear that the differences in legislative styles present challenges in the field of coordination of legislation as well as challenges in ensuring that a model law is compatible with the domestic legal system. The differences in legislative style in accessibility, transparency and enforceability all point to potential best practice to achieve greater legislative effectiveness.
  Despite the challenges imposed on model laws, they can serve as tools and offer guidance to the novice legislative drafter as a starting point. If the model law is well drafted, it can be used as a template for the actual draft, requiring that it be supplemented and tailored to the particular drafting task. Despite the deprival of knowledge and level of critical analysis imposed by the use of model laws, they can save the drafter considerable time in the more technical and new areas of the law and when time is of essence, and can thereby expedite the drafting process.
  In a world where states are drawing closer under the influence of globalisation and the subsequent rise of international and transnational law, domestic legislation and its distinctive features are no longer isolated and difficult to access. Model laws can also be evaluated for their efficiency by states that lack the legislative resources to draft and analyse complex legislation.
  Despite the constraints facing the drafter in the use of model laws, the drafter still has a duty to devise legislative solutions that are effective and legally permissible. Although draft model bills may serve as a guide and useful tool to a drafter, it is worth mentioning that it is essential for the drafter to ensure that the model law as transposed into domestic laws falls within the ambit of the existing legal regime and does not conflict with the constitution and other existing legislation. Bergeron argues that the ideal legislative process for any given country is the one that best implements that country’s constitution.¹⁸¹xBergeron, 2002, at 90.
  For domestic laws to be effective, they need to have local constituencies with a strong interest in and understanding of the laws. This is the prerequisite for the new law to become part of the continuous process of legal change, without which the formal legal system will remain largely irrelevant. Legal standards developed at the supranational level are typically distilled from legal practice in individual countries without their merits having being tested in a functioning legal system. The generality of standards raises the possibility of subscribing to them without necessarily implementing them.¹⁸²xPistor, 2000, at 102. Member states will simply comply and have the legislation in place for the purposes of avoiding sanctions. Hence, this will defeat the whole purpose of enacting model laws. It is also worth noting that time plays an essential role in regard to the effectiveness of the transposition of model laws into domestic legislation. Drafting of national legislation within set time frames by state signatories is a setback in drafting quality national legislation that meets all the quality criteria.
  The concerns about quality legislation should apply at both international and national levels, and there should be a mutual connection in striving for quality legislation. The nature of model laws will continue to make it difficult to draft high-quality domestic legislation. The increasing quantity of legislation at the national level will make it increasingly difficult to assess the effects of the new legislation on the existing body of law however well drafted the new law appears to be. A high standard legislation is a precondition for credible government action. Hence, those involved in the conceptualisation of model laws should ensure their quality, which should inevitably be applied at the national level. If model laws are badly drafted, inevitably the quality of national legislation will be affected. As our case study focused on the potential implications of drafting national legislation in compliance with model laws, it is essential that economic desirability and political feasibility are brought down to the legal standards, which in turn have to fit within the margins of the existing legal system. Thus, fitting the new law into the system of the statutes will reveal damage to other statutes.¹⁸³xJ. Stark, The Art of the Statute, Fred B. Rothman, Littleton, CO, 1996, p. 18. Legitimacy, consistency and effectiveness are in this respect key words. These are essential tools that reduce uncertainty and contribute to improving the substantive quality of legislation.
  Making legislative drafting a professional endeavour and, more importantly, distancing the process from politics has enormous benefits in terms of impact on the effectiveness and quality of legislative activity.¹⁸⁴xBergeron, 2002, at 86. The best strategy to counter the challenges of standardisation is to ensure that countries have the capacity to enforce the newly adopted law. Thus, the key to success for any given country will be the establishment of effective legal institutions. Instead of developing legal standards by legal experts, lawmakers around the world should be given access to alternative legal solutions found in living legal systems. This would enable domestic agents to identify problems and find solutions that are adequate and potentially effective given the institutional constraints their countries face.¹⁸⁵xPistor, 2000, at 127.

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Noten

• 1 K.J. Muylle, ‘Improving the Effectiveness of Parliamentary Legislative Procedure’, Statute Law Review, Vol. 24, No. 3, 2003, p. 171.

• 2 K. Pistor, ‘Standardisation of Law and Its Effect on Developing Countries’, G-24 Discussion Paper Series, No. 4, 2000, p. 107.

• 3 Ibid.

• 4 Editorial, ‘The Globalisation of Legislation’, Statute Law Review, Vol. 22, 2001, p. iv.

• 5 Ibid.

• 6 S. Kirchner, ‘Effective Law Making in Times of Global Crisis’, Goettingen Journal of International Law, Vol. 2, No. 1, 2010, p. 275.

• 7 Ibid.

• 8 Ibid., at 275.

• 9 P.S. Dempsey, ‘Compliance and Enforcement in International Law: Achieving Global Uniformity in Aviation Safety’, North Carolina Journal of International Law and Commercial Regulation, Vol. 30, No. 1, 2004, p. 3.

• 10 Ibid.

• 11 Prof. M. Milde in P. Dempsey, ‘Compliance and Enforcement in International Law: Achieving Global Uniformity in Aviation Safety’, North Carolina Journal of International Law and Commercial Regulation, Vol. 30, No. 1, 2004, p. 20.

• 12 ‘Uniform Law as a Means of Technical Assistance to Developing Countries’, 1973, p. 71.

• 13 Ibid.

• 14 V. Vanterpool, ‘A Critical Look at Achieving Quality in Legislation’, European Journal of Law Reform, Vol. 9, No. 2 2007, p. 195.

• 15 J.-C. Piris, ‘The Quality of Community Legislation: The View Point of the Council of Legal Service’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 28.

• 16 Ibid.

• 17 H. Xanthaki, ‘On Transferability of Legislative Solutions: The Functionality Test’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008, p. 5.

• 18 Ibid., at 6.

• 19 Kirchner, 2010, at 290.

• 20 A. Kellermann, ‘Guidelines on Quality of EU Legislation and Its Impact on Albania’, European Journal of Law Reform, Vol. 10, No.2, 2008, p. 198.

• 21 Ibid., at 199.

• 22 J.P. Salembier, ‘Designing Regulatory Systems: A Template for Regulatory Rule-Making’, Statute Law Review, Vol. 23, No. 3, 2002, p. 172.

• 23 Pistor, 2000, at 106.

• 24 Ibid., at 107.

• 25 Ibid.

• 26 Piris, 1998, at 26.

• 27 G.C. Thornton, Legislative Drafting, Butterworths, London, 1996, p. 133.

• 28 Ibid., at 138.

• 29 Pistor, 2000, at 108.

• 30 L.A. Levert, ‘Work Methods and Processes in a Drafting Environment’, The Loophole, 2011, p. 36.

• 31 Vanterpool, 2007, at 181.

• 32 Salembier, 2002, at 173.

• 33 G. Dannemann, ‘Drafting Principles of Existing European Contract Law’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008, p. 175.

• 34 Xanthaki, 2008, at 11.

• 35 W. Voermans, ‘Styles of Legislation and Their Effects’, Statute Law Review, Vol. 32, No. 1, 2011, p. 53.

• 36 A.E. Kellermann, ‘Proposals for Improving the Quality of European and National Legislation’, European Journal of Law Reform, 1999, p. 12.

• 37 Pistor, 2000, at 106.

• 38 Ibid.

• 39 S. Laws, ‘Consistency versus Innovation’, The Loophole, 2009, p. 1.

• 40 Ibid.

• 41 C.W.A. Timmermans, ‘How to Improve the Quality of Community Legislation: The View Point of the European Commission’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 41.

• 42 Ibid.

• 43 Pistor, 2000, at 106.

• 44 Vanterpool, 2007, at 183.

• 45 Ibid.

• 46 Pistor, 2000, at 99.

• 47 Salembier, 2002, at 172.

• 48 Muylle, 2003, at 171.

• 49 Pistor, 2000, at 112.

• 50 Ibid.

• 51 Ibid.

• 52 Voermans, 2011, at 40.

• 53 Ibid.

• 54 P. Ziegler, ‘The Status of Normalised Drafting: The Need for Theory Building and Empirical Verification’, Osgoode Hall Law Journal, Vol. 27, 1989, p. 352.

• 55 V.C.R.A.C. Crabbe, ‘The Ethics of Legislative Drafting’, Commonwealth Law Bulletin, Vol. 36, No. 1, 2010, p. 13.

• 56 E. Driedger, The Composition of Legislation, The Department of Justice, Ottawa, 1976, p. xix.

• 57 Kellermann, 2008, at 204.

• 58 Timmermans, 1998, at 45.

• 59 G. Schader, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 103.

• 60 S. Arkio, ‘Assessment of Draft Legislation in Finland’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 228.

• 61 Ibid.

• 62 H. Xanthaki, ‘Transposition of EC Law for EU Approximation and Accession’, European Journal of Law Reform, Vol. 7, No. 1-2, 2005, p. 106.

• 63 H. Xanthaki, ‘The Slim Initiative’, Statute Law Review, Vol. 22, No. 2, 2001, p. 114.

• 64 K. Kabba, ‘Legislatures in Modern States. The Role of the Legislature in Ensuring Good Governance Is Inadequate: A Case Study of United Kingdom and Sierra-Leone’, European Journal of Law Reform, Vol. 12, No. 3-4, 2010, p. 429.

• 65 Kellermann, 2008, at 203.

• 66 R. Deighton-Smith, ‘Assessment of Draft Legislation’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. LIII.

• 67 Ibid., at IV.

• 68 H. Xanthaki, ‘The Problem of Quality in EU Legislation: What on Earth Is Really Wrong’, Common Market Law Review, Vol. 38, No. 3, 2001, p. 658.

• 69 A. Seidman et al., Legislative Drafting for Democratic Social Change: A Manual for Drafters, Kluwer Law International, 2000, p. 173.

• 70 Thornton, 1996, at 132.

• 71 Ibid.

• 72 Ibid.

• 73 Editorial, ‘Pre-Legislative Consultation’, Statute Law Review, Vol. 14, No. 3, 1993, p. xv.

• 74 Pistor, 2000, at 99.

• 75 Kellermann, 2008, at 204.

• 76 Crabbe, 2010, at 17.

• 77 Timmermans, 1998, at 45.

• 78 Xanthaki, 2008, at 12.

• 79 Ibid., at 13.

• 80 Muylle, 2003, at 171.

• 81 F. Ruhindi, ‘The Need for Simplicity in Legislation and Challenges in Its Attainment’, The Loophole, 2009, p. 4.

• 82 Salembier, 2002, at 173.

• 83 Voermans, 2011, at 46.

• 84 B. Hunt, ‘Plain Language in Legislative Drafting: An Achievable Objective or Laudable Ideal’, Statute Law Review, Vol. 24, No. 2, 2003, p. 112.

• 85 Vanterpool, 2007, at 191.

• 86 Pistor, 2000, at 110.

• 87 Hunt, 2003, at 116.

• 88 Ibid.

• 89 Ibid.

• 90 Xanthaki, 2001, at 655.

• 91 K. Anderson, ‘Testing the Model Soft Law Approach to International Harmonisation: A Case Study Examining UNCITRAL Model Law on Cross-Border Insolvency’, Australian Year Book of International Law, Vol. 23, No.1, 2004, p. 23.

• 92 R. Bigwood, The Statute: Making and Meaning, LexisNexis, Wellington, 2004, p. 90.

• 93 Vanterpool, 2007, at 188.

• 94 P. Butt, ‘Modern Legal Drafting’, Statute Law Review, Vol. 23, No. 1, 2002, p. 22.

• 95 Ibid.

• 96 Hunt, 2003, at 117.

• 97 B. Hunt, ‘Plain Language in Legislative Drafting: Is It Really the Answer?’, Statute Law Review, Vol. 23, No. 1, 2002, p. 34.

• 98 Piris, 1998, at 31. Provides that community legislation is the fruit of, at times, carefully crafted compromises between the various national positions, generally in technical fields. It does not differ greatly from national legislation, which likewise grows from compromises struck firstly between the ministries involved and then within government and parliament and sometimes even regional bodies.

• 99 Voermans, 2011, at 49.

• 100 D. Greenberg, ‘Access to Legislation-Legislative Counsel’s Role’, The Loophole, 2009, p. 5.

• 101 Muylle, 2003, at 171.

• 102 Crabbe, 2010, at 19.

• 103 Xanthaki, 2008, at 9.

• 104 Ibid.

• 105 Xanthaki, 2008, at 11.

• 106 Seidman et al., 2000, at 255.

• 107 Xanthaki, 2001, at 659.

• 108 Timmermans, 1998, at 41.

• 109 F. Capelli, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 130.

• 110 Kellermann, 1999, at 29.

• 111 Vanterpool, 2007, at 173.

• 112 Levert, 2011, at 36.

• 113 Ibid.

• 114 Xanthaki, 2008, at 5.

• 115 Ibid., at 17.

• 116 S. Argument, ‘Legislative Counsel and Pre-legislative Scrutiny’, The Loophole, January 2010, p. 62.

• 117 S.C. Markman, ‘Training of Legislative Counsel: Learning to Draft without Nellie’, Commonwealth Law Bulletin, Vol. 36, No. 1, 2010, p. 31.

• 118 Crabbe, 2010, at 22.

• 119 Ibid.

• 120 Driedger, 1976, at xxiv.

• 121 Xanthaki, 2008, at 17.

• 122 S. Markman, ‘It’s Just Your Imagination, Some Thoughts on the Role of Parliamentary Counsel in Ensuring Practicability of Legislative Instruments’, The Loophole, 2011, p. 1.

• 123 G. Bowman, ‘Why Is There a Parliamentary Counsel Office’, Statute Law Review, Vol. 26, No. 2, 2005-2006, p. 70.

• 124 D. Miers & A.C. Page, Legislation, Sweet & Maxwell, London, 1982, p. 79.

• 125 V.C.R.A.C. Crabbe, Legislative Drafting, Cavendish, London, 1993, p. 14.

• 126 ‘Uniform Law as a Means of Technical Assistance’, 1973, at 71.

• 127 J.H. van Kreveld, ‘The Main Elements of a General Policy on Legislative Quality: Dutch Experience’, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 97.

• 128 Xanthaki, 2001, at 667.

• 129 S. Lortie, ‘Providing Technical Assistance on Law Drafting’, Statute Law Review, Vol. 31, No. 1, 2010, p. 6.

• 130 Ibid.

• 131 Vanterpool, 2007, at 173.

• 132 Levert, 2011, at 34.

• 133 Ibid.

• 134 R.J. Martineau & M.B. Salerno, Legal, Legislative and Rule Drafting in Plain English, Thomson West, St. Paul, 2005, p. 28.

• 135 Ibid.

• 136 Thornton, 1996, at 130.

• 137 Ibid.

• 138 G. Bowman, ‘The Art of Legislative Drafting’, European Journal of Law Reform, Vol. 7, No. 1-2, 2005, p. 4.

• 139 Pistor, 2000, at 102.

• 140 Driedger, 1976, at xix.

• 141 Ibid.

• 142 Crabbe, 1993, at 12.

• 143 Markman, 2010, at 28.

• 144 W. Robinson, ‘Polishing What Others Have Written: The Role of the European Commission’s Legal Revisers in Drafting European Community Legislation’, The Loophole, 2007, p. 1.

• 145 Thornton, 1996, at 130.

• 146 Vanterpool, 2007, at 175.

• 147 Lortie, 2010, p. 5.

• 148 Ibid.

• 149 Vanterpool, 2007, at 186.

• 150 Ibid.

• 151 Z. Ntaba, ‘Pre-legislative Scrutiny’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008. “The work is urgent. It has to be done by at any cost during the limited time available. When a draft is cumbersome with hundreds of provisions requiring careful, patient and detailed scrutiny, time is the enemy. All this involves time and concentration. There is often a constant battle between urgency and limited time.”

• 152 Ibid.

• 153 Muylle, 2003, at 171.

• 154 Renton Committee Report, The Preparation of Legislation, HL, 1975, p. 43.

• 155 C. Wilson, ‘Managing Increasing Government’s Expectations with Respect to Legislation While Maintaining Quality’, The Loophole, 2009, p. 22.

• 156 S. Laws, ‘Role of Legislative Counsel, Wordsmith or Counsel’, The Loophole, 2008, p. 43.

• 157 Miers & Page, 1982, at 82.

• 158 W.R.J. Van Den Henden, in A.E. Kellermann et al. (Eds.), Improving the Quality of Legislation in Europe, Kluwer, The Hague, 1998, p. 69.

• 159 A. Kennon, ‘Pre-legislative Scrutiny’ (Analysis), Public Law, 2004, p. 477.

• 160 U. Karpen, ‘Improving Democratic Development by Better Regulation’, in C. Stefanou & H. Xanthaki (Eds.), Drafting Legislation: A Modern Approach, Ashgate, Aldershot, 2008, p. 157.

• 161 Muylle, 2003, at 171.

• 162 Ibid.

• 163 D.K. Kawooya, ‘Act of Parliament: The Role of Parliament in the Legislative Process’, European Journal of Law Reform, Vol. 12, No. 1-2, 2010, p. 45.

• 164 Muylle, 2003, at 173.

• 165 Vanterpool, 2007, at 202.

• 166 Kellermann, 1999, at 11.

• 167 R.C. Bergeron, ‘Globalisation of Dialogue on the Legislative Process’, Statute Law Review, Vol. 23, No. 2, 2002, p. 89.

• 168 Ibid.

• 169 L. Ribstein & B. Kobayashi, ‘Uniform Laws, Model Laws & Limited Liability Companies’, University of Colorado Law Review, Vol. 66, 1995, p. 951.

• 170 Ibid.

• 171 Ibid., at 960.

• 172 Arkio, 1998, at 227.

• 173 J. Goldring, ‘Globalisation, National Sovereignty and the Harmonisation of Laws’, Uniform Law Review, Vol. 3, No. 2-3, 1998, p. 1.

• 174 Pistor, 2000, at 102.

• 175 A.B. Overby, ‘UNCITRAL Model Law on Electronic Commerce’, Tulane Journal of International and Comparative Law, Vol. 7, 1999, p. 220.

• 176 Anderson, 2004, at 23.

• 177 Ibid., at 23.

• 178 Kellermann, 1999, at 12.

• 179 Pistor, 2000, at 99.

• 180 H. Schaffer, ‘Evaluation and Assessment of Legal Effects Procedure Towards a More Rational and Responsible Law Making Process’, Statute Law Review, Vol. 22, No. 2, 2001, p. 152.

• 181 Bergeron, 2002, at 90.

• 182 Pistor, 2000, at 102.

• 183 J. Stark, The Art of the Statute, Fred B. Rothman, Littleton, CO, 1996, p. 18.

• 184 Bergeron, 2002, at 86.

• 185 Pistor, 2000, at 127.