09 December 2010

Raising a Question: Dispute Settlement in the Covenant

The proposed Anglican Covenant exists primarily to create a framework for the settling of disputes in the Anglican Communion. Arising as it does in the context of a protracted dispute over local decisions about the inclusion of sexual minorities in the sacramental life of the Church, and of border-crossing interventions from other Churches, it is no surprise that the proposed Covenant reflects this conflict. So how does it propose to deal with conflict?

Section 4.2, “The Maintenance of the Covenant and Dispute Resolution” sets out the mechanism by which disputes would be regulated in the future. The euphemism for lodging a complaint is “Raising a Question.” (4.2.3)

A question may be raised concerning either the meaning of the proposed Covenant, “or about the compatibility of an action by a covenanting Church with the Covenant.” This is the last we hear about questions concerning the meaning of the proposed Covenant, so it is clear that such questions are really not the focus of the process. So let’s focus on the second class of questions, compatibility with the Covenant.

The first thing to notice is that the proposal specifies clearly who may raise a question: a Church itself, another covenanting Church, or an Instrument of Communion.

Presumably when a Church raises a question, it is likely to be a pre-emptive reference to determine whether a course of action it proposes will bring down the wrath of the Communion. In Canada our Parliament periodically refers proposed legislation to the Supreme Court to determine the Court’s opinion as to whether the legislation will be constitutionally valid. So, I assume that the raising of a question by a Church about its own proposal is along similar lines. What’s not clear is the mechanism within the Church for posing the question. Presumably it would be a matter of the particular polity of the Church. In some Provinces, the Primate would possibly have the authority to raise a question. In others, it may require a resolution of the General Synod or equivalent. Some churches might consider giving their highest court the authority and mandate to raise questions, though of course, that would be a change to a canon, which section 4.1.3 assures us is not implied by the adoption of the proposed Covenant.

For an Instrument of Communion to raise a question, there is also no specified mechanism. Again, it might be a matter of the nature of the specific Instrument. The Archbishop of Canterbury could easily just write a letter to raise the question. And the Anglican Consultative Council could adopt a resolution to raise a question. But what of the Primates’ Meeting and the Lambeth Conference? Since they are not legislative bodies, but deliberative bodies, how do they decide to raise a question? A resolution is the obvious answer, but what happens when, as in 2008, the Lambeth Conference is not considering any resolutions? And, anyway, how would the possibility of raising a question appear on the agenda of any of the three collective Instruments of Communion? Presumably, a Church would petition the convenor or president of the relevant Instrument to consider raising a question, but why use a middleman when the Church can raise the question itself?

Finally, another Church can raise a question about the action of one of its Communion partners. Again, one might ask how this would get on the agenda of the other Church. I imagine it is likely to be very similar to the manner in which the current dispute has been conducted, with a dissenting minority within a Church taking an action appealing to another Church to intervene, in this case by raising a question.

But if it’s fairly clear who may raise a question, the phrasing is a bit fuzzy as to how a question is asked, and of whom. Questions don’t arise ex nihilo, they arise from a context and they are asked of someone. In the context, since section 4.2.2 states that the Standing Committee “shall monitor the functioning of the [proposed] Covenant” it would appear that it is the body to send a question to. I know that supporters of the proposed Covenant will think I’m being difficult here, but would it have killed the Design Group to include a phrase like, “in order to raise a question, a Church shall, through its own constitutional and canonical processes, send the question to the Standing Committee of the Anglican Communion”? They could even have supplied the address and a specified form.

(As an aside, this is why the use of the passive voice in Synod resolutions and proposed Covenants should be avoided. It tends to lead to ambiguity. Clarity in these things is always preferable to ambiguity!)

(As a second aside, if there were a reference to some constitutional and canonical processes, that would imply that there were such processes within the constitutions and canons of the covenanting Churches, because, as 4.1.3 tells us, adoption of the Covenant implies no changes to the constitution or canons.)

So, now a question has arisen (note the passive voice) and it has been addressed to the correct person or persons. What next?

Section 4.2.4 tells us that “where a shared mind has not been reached the matter shall be referred to the Standing Committee.” Hold on, here, what’s going on? Didn’t we just send the question to the Standing Committee? So, either my guess was wrong that the Standing Committee is the one to receive questions, in which case I don’t know who else was supposed to receive it, or the Standing Committee is going to refer questions to itself. (And note the passive voice again! “shall be referred” by whom “to the Standing Committee”?) But there’s a bigger problem: what is the process for attempting to reach a shared mind? shared by whom? where’s the process for determining it? what are the criteria?

Already my head is spinning and we’ve only just managed to lodge a complaint, er, raise a question!

At least now we know that the Standing Committee is in charge of the question and its process. So what next? Well, first “the Standing Committee shall make every effort to facilitate agreement” presumably by whatever process it chooses, given that no process is mentioned. Question is, wasn’t there already some kind of process to attempt to reach a shared mind? What’s the difference between that and facilitating agreement? At least the Standing Committee isn’t on its own here, for it “may take advice from such bodies as it deems appropriate.” It’s not clear, of course, whether such advice should be solicited by the Standing Committee, or might just arise, ex nihilo, from some body or other, whether celestial or terrestrial. In the latter case, it seems the Standing Committee can determine whether to listen to the advice or not. Not that there are any criteria to guide the Standing Committee with respect to the appropriateness of the body offering the advice. (Is it just me, or does the Standing Committee have a huge amount of discretionary power?)

In addition to taking advice from appropriate bodies, “where appropriate, the Standing Committee shall refer the question to both the Anglican Consultative Council and the Primates’ Meeting for advice.” (4.2.4) So were neither the Anglican Consultative Council nor the Primates’ Meeting appropriate bodies for consulting in the previous sentence, except “where appropriate” in this sentence? This is beyond confusing. And unfortunately, the proposed Covenant doesn’t bother (again) to give criteria for determining where consulting these two bodies is appropriate. Which is a problem, given that it is mandatory (“shall”), albeit conditional. Or is this sentence meant to imply that the Standing Committee shall not consult either the Primates’ Meeting or the Anglican Consultative Council without also consulting the other one? (Such an interpretation makes sense, given the fears expressed that the proposed Covenant would turn the Primates’ Meeting into a Curia.) And if that’s what it means, why didn’t the Design Group just say it?

So, while the Standing Committee is trying to figure out, er, is engaged in the process, it “may request a Church to defer a controversial action.” (4.2.5) This suggests either that any action about which a question has arisen is presumed to be “controversial” or that there is some mechanism (what? with what criteria?) by which the Standing Committee may make an interim decision that the action is controversial. Deferring a controversial action is thus apparently an investigative tool. Of course, it’s only a request. The Church doesn’t need to agree to the request and the Standing Committee has no power to compel the Church to defer. We’re all so polite. But, “if a Church declines to defer such action, the Standing Committee may recommend to any Instrument of Communion relational consequences....” So the Church can’t be compelled to comply with the request to defer its action, but if it chooses to exercise its autonomy in carrying on, “relational consequences” may apply.

Next, the Standing Committee “may make a declaration that an action or decision is or would be ‘incompatible with the Covenant’”. (4.2.6) But such a declaration would be made “on the basis of advice received from the Anglican Consultative Council and the Primates’ Meeting.” This raises a couple of questions. First, does the Standing Committee have the power to make such a declaration without the advice of the ACC and the Primates’ Meeting? And if the two bodies disagree, does that also preclude such a judgment? And if the Standing Committee has determined in 4.2.4 that it is not appropriate to consult these two bodies, is it then precluded from determining that an action is or would be “incompatible with the Covenant”? In other words, what, precisely, are the conditions that must obtain in order for the Standing Committee to declare definitively that an action is “incompatible with the Covenant”? It would be helpful if the proposed Covenant actually specified these points.

Finally, (4.2.7) “on the basis of the advice received the Standing Committee shall make recommendations as to the relational consequences which flow from an action incompatible with the Covenant.” It’s interesting that here the Standing Committee is again required to make recommendations. (“shall”, not “may”) But more interesting is the question, “which advice, precisely?” Does this imply that if the Standing Committee has not sought, or not received, any advice that no “relational consequences” will ensue? And which bodies may give advice that imply that relational consequences may be recommended? The ACC? The Primates? Both? Some other body determined (randomly? capriciously?) to be appropriate? GAFCON?

Obviously, if you’re still with me, there are a number of holes in the process here, and I have a series of other questions to raise with respect to the process, but this blog post has gone on long enough. I will address further issues, including other elements that have been ignored or omitted, in my next post. Watch this space.

It seems to me that the first question that ought to arise with respect to the meaning of the Covenant (4.2.3) is what on earth is the process for raising questions, and how exactly are they to be addressed?


  1. You raise some pertinent questions - the process has not been thought through sufficiently...though that would involve even more legalese paperwork for distribution...

  2. Thanks, David. Yes, a more thorough document would require more legalese, but there's no getting around the fact that a legal document requires legal language.


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