Ten Questions

As noted earlier, the Governance Working Group of the Anglican Church of Canada has issued a report outlining the legal and canonical implications of the adoption of the proposed Anglican Covenant. The report invites responses to ten questions. Here are the questions along with my responses.

1. Should the imprecision in the definitions of a number of terms used in the Covenant concern General Synod when it considers whether or not to adopt the Covenant?

Imprecision or elasticity of meaning can be a strength in documents such as theological consensus statements and liturgical texts. In these sorts of texts elasticity allows for agreement on wording by a broad cross section of people because of, not in spite of, the imprecision. We can agree to use the same words without having to mean precisely the same thing. But the Covenant is not a consensus document. It is a set of standards, a set of commitments and undertakings, and a process for measuring whether a given Church is fulfilling its commitments in light of those standards.

The GWG report correctly notes that imprecision in the standards makes it impossible for a Church to know precisely what commitments it is making in adopting the Covenant. When a question arises as to whether a given controversial action is compatible or incompatible with the Covenant, elasticity of meaning becomes a serious liability, because without clear criteria for determining compatibility, inevitably any decision rests heavily on the discretion of the decision-making body and risks being criticized as arbitrary. The imprecision in several definitions in the Covenant thus undermines the credibility of any decision that might in future be made pursuant to the Covenant, and introduces risk that protagonists in a dispute may refuse to accept such a decision. The likely outcome is increased conflict rather than conflict resolution.

2. Should the lack of natural justice and procedural fairness in section 4 concern General Synod when it considers whether or not to adopt the Covenant?

The principles of natural justice are fundamental to producing fair outcomes in any judicial or quasi-judicial process. These principles are essential to the administration of justice in both civil and canonical realms. They are rightly guaranteed in Canon XVIII on Discipline. It is essential to ensure that decisions are not only fair, but that they are demonstrably fair by design rather than by good fortune, and seen to be fair. Without guarantees of procedural fairness, the credibility of the dispute-settling process in section 4 is undermined, and there is a real risk that a decision could be reached which is demonstrably arbitrary and unfair. Because all human processes are fallible, the preservation of fairness must depend on the design of the process, and not on the good will of the members of the tribunal. Fairness is a Gospel value, and the Church should set an example to the world in establishing processes that are demonstrably fair. Implementing a process which is demonstrably unfair is contrary to the fourth Mark of Mission (“to seek to transform unjust structures of society.”) Given that this Mark of Mission is itself part of the Covenant (s. 2.2.2.d) the dispute-settling process in section 4.2 is arguably incompatible with the Covenant.

What is worrisome is that it is conceivable that the outcome of a disciplinary proceeding pursuant to Canon XVIII could be submitted to the Standing Committee for review. Thus a process that guarantees natural justice could be subject to review by a process that violates natural justice.

3. If the Covenant were adopted by General Synod, what wording should be included in the resolution by General Synod to ensure clarity about General Synod’s intention about whether the Covenant does or does not affect the doctrine of the Anglican Church of Canada?

The problem suggested by this question is the lack of clarity about the implications of adopting the Covenant, and specifically whether the Covenant affects the doctrine of the Anglican Church of Canada. Elsewhere I have argued that the Covenant's procedures could overrule a doctrinal statement made by the General Synod pursuant to its jurisdiction over the definition of the doctrines of the Anglican Church of Canada (Declaration of Principles s. 6(i)). If that is what is intended by the General Synod in adopting the Covenant, then it would amount to ceding jurisdiction, which point would have to be very clear prior to adoption. If it is not what is intended, the question is whether the General Synod in fact does intend to adopt the Covenant. Although it would be a trivial matter to include a clause in the adopting resolution to the effect that “adoption of the Anglican Covenant shall not be interpreted to affect the doctrine of the Anglican Church of Canada or the General Synod's jurisdiction over doctrine”, the question is whether such a clause would be consistent with adoption of the Covenant. Adding such a proviso to the adoption of the Covenant would amount either to a partial or conditional adoption or to a unilateral amendment of the Covenant, neither of which is contemplated by the Covenant.

4. If the Covenant were adopted by General Synod, what should be the relationship between the Covenant and the Declaration of Principles and the Constitution of the Anglican Church of Canada? What wording should be included in the resolution by General Synod to achieve this?

I believe that the Covenant, if adopted, would be constitutional or quasi-constitutional in effect. That being the case, the resolution to adopt the Covenant should make this clear, most straightforwardly by including reference to the Anglican Covenant in the Declaration of Principles. One way to accomplish this would be to insert a new clause 7(a) stating “the General Synod, and the Provincial and Diocesan Synods in the Anglican Church of Canada shall exercise their authority in their several jurisdictions in accordance with, and subject to the procedures of, the Anglican Covenant.” Section 9(a) would have to be amended as well, inserting “With the exception of section 7(a)” at the beginning. The effect of the first amendment would be to make all Synods in Canada explicitly subject to the terms of the Anglican Covenant. The second amendment would do the same with respect to bishops exercising the (undefined) powers inherent in the office of bishop.

Including the Covenant in the Declaration of Principles is, of course, contrary to the assurances that its adoption does not imply any constitutional change or limitation in autonomy. (Section 4.1.3)

5. What consultation with (or approval by) the Provincial and Diocesan Synods [is required] before General Synod considers a resolution to adopt the Covenant? Beyond any legal requirements, what consultation (or approval) should take place?

If the Covenant is to be included in the Declaration of Principles as suggested above, then it requires a two-thirds majority of each Order at two successive sessions of the General Synod as well as consent of all the Provincial Synods. (Declaration of Principles ss. 11(a)(ii-iii)). Beyond that, the dioceses should also be consulted, particularly in light of the limitations on the exercise of their authority implicit in the adoption of the Covenant. Although there is no mechanism for the dioceses to signify their assent, the Rules of Order do provide for a vote by dioceses (Rule 20). Ideally, every Diocesan Synod should be requested to debate the Covenant and to signify their intention to be bound by it. No Province should give its consent without the consent of the dioceses, even though this is not constitutionally required. Nevertheless, if adoption of the Covenant is tantamount to a constitutional change for the General Synod, the same is true for the Provinces and dioceses.

6. If General Synod were to adopt the Covenant, what steps would have to be taken to be able to fulfil the obligation under section 4.2.9 for there to be adequate mechanisms within the Canadian Church to ensure that all parts of the Canadian Church comply with the Covenant? What steps would need to be taken by General Synod, the Provincial Synods and the Diocesan Synods to put in place such a mechanism?

If the Covenant were included in the Declaration of Principles as suggested above, then any action contrary to the Covenant by any Synod would be ultra vires. What would be required would be some kind of constitutional mechanism to nullify any action by a Synod. One way to accomplish this would be to give authority of nullification to either the General Synod or the Council of General Synod with respect to Provincial and Diocesan Synods, and perhaps to the Supreme Court with respect to the General Synod, unless the declaration of incompatibility by the Standing Committee is understood itself to nullify any action in question.

The General Secretary could act as the Covenant Compliance and Liaison officer.

The difficulty in specifying mechanisms to ensure compliance is that it is impossible to know in advance exactly what actions might be incompatible with the Covenant and hence what would constitute compliance. Any compliance mechanism would have to be reactive, taking action only when the Standing Committee has declared an action by a Canadian synod to be incompatible with the Covenant.

But beyond synodical action, it is possible to contemplate that an action by a bishop might be declared incompatible with the Covenant, and thus also ultra vires. For example, a bishop's decision to ordain a candidate could be overturned by the Standing Committee in response to a question. Or even the election and consecration of a bishop could be nullified. The implications of such a ruling are obviously serious, especially if it were to occur well after the fact. There is nothing in the Covenant that prevents it from being used retroactively. In such a case it is difficult to imagine how compliance could be ensured. In fact, ensuring compliance could conceivably prove so onerous a task that the General Synod might seriously consider withdrawing from the Covenant.

7. Is the strong synodical place of the laity in the Canadian Church sufficiently upheld in the decision-making processes in the Covenant?

Since 1857 the clergy and laity of the Anglican Church of Canada have had authority to meet in Synod to determine the doctrine, discipline and policies of the Church. The same question could be asked with respect to the place of the lower clergy in Canadian synods. The chief decision-making authority in the Covenant process is centred on the Standing Committee, of which 50% is Primates and 50% representatives of the Anglican Consultative Council. The latter half would comprise bishops, clergy and laity, with no rules about the proportions of each. Where bishops are a small minority in Canadian Synods, and clergy and laity approximately equally represented, this proportion is not present in the Standing Committee. Thus the significant role played by both laity and lower clergy in Canadian synods is omitted in the mechanisms of the Covenant. Nor is there any youth representation in the Standing Committee. In practice, the preponderance of authority under the Covenant would be held by bishops and particularly by Primates.

8. Would there be a difference between General Synod’s passing a resolution to “adopt” the Covenant (the term used in the Covenant), “accede” to the Covenant (the term used by the Church in South-East Asia), or “subscribe” to the Covenant (the term used by the Church of Ireland)?

It is not clear what either the Church of Ireland or South-East Asia intended by choosing a verb other than “adopt” in relation to the Covenant. The Covenant does not contemplate any verb other than “adopt.” What is clear from the Church of Ireland's debate is that, whatever they intended by choosing “subscribe”, they understood the term to mean something different than “adopt”. Thus it would appear that the Church of Ireland explicitly chose not to adopt the Covenant. Although the precise difference would depend on the verb chosen, there would be a difference in not using the verb “adopt.”

In my view there is no value in the Anglican Church of Canada choosing to employ a verb not contemplated by the Covenant. Either the General Synod will intend to adopt the Covenant or it will not. In either case, the action taken by the General Synod should be unambiguous, and not subject to debate or interpretation.

9. What would be the effect of a decision by General Synod not to adopt the Covenant?

Under the Covenant, the only effect of a decision by the General Synod not to adopt it would be that the Anglican Church of Canada would not be bound by the Covenant and would be ineligible to participate in the dispute-settling procedures in section 4.2, or to propose amendments to the Covenant (section 4.4.2). Some commentators have suggested that failure to adopt the Covenant would be tantamount to withdrawing from the Anglican Communion. But the Covenant neither states this, nor defines membership in the Anglican Communion.

Whether there would be any other consequences to a decision not to adopt the Covenant is impossible to predict. Any further consequences would not be “relational consequences” within the meaning of the term in the Covenant.

10. Are there any other legal or constitutional implications or consequences which have not been identified by the GWG which would be raised by adopting the Covenant?

The GWG report is both thorough and comprehensive. That said there is one question that has not been touched on: if the General Synod of the Anglican Church of Canada were to adopt the Covenant, would the Standing Committee and the dispute-settling mechanism of section 4.2 supersede the authority of the Supreme Court of Appeal, described in Canon XX as “final”?

The GWG is to be commended for their excellent work.